The Associated British Ports (Immingham Eastern Ro-Ro Terminal) Development Consent Order 2024

If any pile, stump or other obstruction to navigation becomes exposed in the course of constructing any tidal work (other than a pile, stump or other obstruction on the site of a structure comprised in any permanent work), the undertaker, as soon as reasonably practicable after the receipt of notice in writing from the Statutory Conservancy and Navigation Authority requiring such action, must remove it from the river or, if it is not reasonably practicable to remove it—

• (a) cut the obstruction off at such level below the bed of the river as the Statutory Conservancy and Navigation Authority may reasonably direct; or

• (b) take such other steps to make the obstruction safe as the Statutory Conservancy and Navigation Authority may reasonably require.

Removal etc. of the Statutory Conservancy and Navigation Authority ’s moorings and buoys

7

If—

• (a) by reason of the construction of any tidal work it is reasonably necessary for the Statutory Conservancy and Navigation Authority to incur reasonable costs in temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the Statutory Conservancy and Navigation Authority, or laying down and removing substituted moorings or buoys, or carrying out dredging operations for any such purpose, not being costs which it would have incurred for any other reason; and

• (b) the Statutory Conservancy and Navigation Authority gives to the undertaker not less than 28 days’ notice of its intention to incur such costs, and takes into account any representations which the undertaker may make in response to the notice within 14 days of the receipt of the notice,

the undertaker must pay the costs reasonably so incurred by the Statutory Conservancy and Navigation Authority.

Navigational lights, buoys, etc.

8

In addition to any requirement imposed under this Order the undertaker, at or near every tidal work, and any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level forming part of the River Humber), must exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the Statutory Conservancy and Navigation Authority may from time to time reasonably require.

Removal of temporary works

9

On completion of the construction of any part of a permanent authorised work, the undertaker must as soon as practicable remove—

• (a) any temporary tidal work carried out only for the purposes of that part of the permanent work; and

• (b) any materials, plant and equipment used for such construction,

and must make good the site to the reasonable satisfaction of the Statutory Conservancy and Navigation Authority.

Protective action

10

• (1) If any tidal work—

• (a) is constructed otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given pursuant to paragraph3; or

• (b) during construction gives rise to sedimentation, scouring, currents or wave action detrimental to traffic in, or the flow or regime of, the river,

then the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker at the undertaker’s own expense to comply with the remedial requirements specified in the notice.

• (2) The requirements that may be specified in a notice given under sub-paragraph (1) are—

• (a) in the case of a tidal work to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—

• (i) this Part of this Schedule; or

• (ii) the condition that has been breached; or

• (b) in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents or wave action so far as required by the needs of traffic in, or the flow or regime of, the river.

• (3) If the undertaker does not comply with a notice under sub-paragraph (1), or is unable to do so, the Statutory Conservancy and Navigation Authority may in writing require the undertaker to—

• (a) remove, alter or pull down the tidal work, and where the tidal work is removed to restore the site of that work (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to its former condition; or

• (b) take such other action as the Statutory Conservancy and Navigation Authority may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.

• (4) If a tidal work gives rise to environmental impacts over and above those anticipated by any environmental document, the undertaker, in compliance with its duties under any enactment and, in particular, under section 48A of the Harbours Act 1964⁶³, must take such action as is necessary to prevent or mitigate those environmental impacts and in doing so must consult and seek to agree the necessary measures with the Statutory Conservancy and Navigation Authority.

• (5) If the Statutory Conservancy and Navigation Authority becomes aware that any tidal work is causing an environmental impact over and above those anticipated by any environmental document, the Statutory Conservancy and Navigation Authority must notify the undertaker of that environmental impact, the reasons why the Statutory Conservancy and Navigation Authority believes that the environmental impact is being caused by the tidal work and of measures that the Statutory Conservancy and Navigation Authority reasonably believes are necessary to counter or mitigate that environmental impact.

• (6) The undertaker must implement the measures that the Statutory Conservancy and Navigation Authority has notified to the undertaker or must implement such other measures as the undertaker believes are necessary to counter the environmental impact identified, giving reasons to the Statutory Conservancy and Navigation Authority as to why it has implemented such other measures.

Abandoned or decayed works

11

• (1) If any tidal work or any other work of which the undertaker is in possession in exercise of any of the powers conferred by this Order (being in either case a work which is below mean high water level) is abandoned or falls into decay, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the work, or any part of it, or to remove the work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.

• (2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river, the Statutory Conservancy and Navigation Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—

• (a) to repair and restore the work or part of it; or

• (b) if the undertaker so elects, to remove the tidal work and (to such extent as the Statutory Conservancy and Navigation Authority reasonably requires) to restore the site to its former condition.

• (3) If after such reasonable period as may be specified in a notice under this paragraph the undertaker has failed to begin taking steps to comply with the requirements of the notice, or after beginning has failed to make reasonably expeditious progress towards their implementation, the Statutory Conservancy and Navigation Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing is recoverable from the undertaker.

Facilities for navigation

12

• (1) The undertaker must not in the exercise of the powers conferred by this Order interfere with any marks, lights or other navigational aids in the river without the agreement of the Statutory Conservancy and Navigation Authority and must ensure that access to such aids remains available during and following construction of any tidal works.

• (2) The undertaker must provide at any tidal works, or must afford reasonable facilities at such works (including an electricity supply) for the Statutory Conservancy and Navigation Authority to provide at the undertaker’s cost, from time to time, such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation of users of the river in general as the Statutory Conservancy and Navigation Authority may deem necessary by reason of the construction of any tidal works, and must ensure that access remains available to apparatus during and following construction of such works.

• (3) The undertaker must comply with the directions of the Statutory Conservancy and Navigation Authority from time to time with regard to the lighting on the tidal works or within the harbour, or the screening of such lighting, so as to ensure safe navigation on the river.

Sedimentation, etc.: remedial action

13

• (1) This paragraph applies if any part of the river becomes subject to sedimentation, scouring, currents or wave action which—

• (a) is, during the period beginning with the commencement of the construction of that tidal work and ending with the expiration of 10 years after the date on which all the tidal works constructed under this Order are completed, wholly or partly caused by a tidal work; and

• (b) for the safety of navigation or for the protection of works in the river, should in the reasonable opinion of the Statutory Conservancy and Navigation Authority be removed or made good.

• (2) The undertaker must either—

• (a) pay to the Statutory Conservancy and Navigation Authority any additional expense to which the Statutory Conservancy and Navigation Authority may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or

• (b) carry out the necessary dredging at its own expense and subject to the prior approval of the Statutory Conservancy and Navigation Authority, such prior approval not to be unreasonably withheld or delayed;

and the reasonable expenses payable by the undertaker under this paragraph include any additional expenses accrued or incurred by the Statutory Conservancy and Navigation Authority in carrying out surveys or studies in connection with the implementation of this paragraph.

Indemnity

14

• (1) The undertaker is responsible for and must make good to the Statutory Conservancy and Navigation Authority all reasonable financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Authority by reason of—

• (a) the construction or operation of the authorised works or the failure of the authorised works;

• (b) anything done in relation to a mooring or buoy under paragraph 8; or

• (c) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised works or dealing with any failure of the authorised works,

and the undertaker must indemnify the Statutory Conservancy and Navigation Authority from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission.

• (2) The fact that any act or thing may have been done—

• (a) by the Statutory Conservancy and Navigation Authority on behalf of the undertaker; or

• (b) by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Statutory Conservancy and Navigation Authority, or in a manner approved by the Statutory Conservancy and Navigation Authority, or under its supervision or the supervision of its duly authorised representative,

does not (if it was done or required without negligence on the part of the Statutory Conservancy and Navigation Authority or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.

• (3) The Statutory Conservancy and Navigation Authority must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand is to be made without the prior consent of the undertaker.

Statutory functions

15

• (1) Subject to article 3 (disapplication and modification of legislative provisions) and this paragraph, any function of the undertaker or any officer of the undertaker, whether conferred by or under this Order or any other enactment, is subject to—

• (a) any enactment relating to the Statutory Conservancy and Navigation Authority;

• (b) any byelaw, direction or other requirement made by the Statutory Conservancy and Navigation Authority under any enactment; and

• (c) any other exercise by the Statutory Conservancy and Navigation Authority of any function conferred by or under any enactment.

• (2) The undertaker must not take any action in the river outside the area of jurisdiction under sections 57 and 65 of the 1847 Act as incorporated by article 4 (incorporation of the Act of 1847) except with the consent of the harbour master, which must not be unreasonably withheld.

• (3) The dock master must not give or enforce any special direction to any vessel under section 52 of the 1847 Act, as incorporated by article 4 (incorporation of the 1847 Act), if to do so would conflict with a special direction given to the same vessel by the harbour master.

• (4) The Statutory Conservancy and Navigation Authority must consult the undertaker before making any byelaw which directly applies to or which could directly affect the construction, operation or maintenance of the authorised development.

• (5) The Statutory Conservancy and Navigation Authority must consult the undertaker before giving any general direction which directly affects the construction, operation or maintenance of the authorised development.

Operating procedures

16

• (1) Before commencing marine commercial operations the undertaker must submit to the Statutory Conservancy and Navigation Authority for approval a written statement of proposed safe operating procedures for access to and egress from the authorised development.

• (2) The undertaker must not submit the statement referred to in sub–paragraph (1) unless it has first consulted with the harbour master, the dock master for the Port of Immingham and the IOT Operators, as defined in Part 4 of this Schedule, and has had due regard to their representations.

• (3) Prior to granting or refusing approval of the statement referred to in sub–paragraph (1), the Statutory Conservancy and Navigation Authority may carry out its own navigational risk assessment and may impose reasonable conditions on the approval for the purposes set out in paragraph 3(2)(a) to (c) of this Part of this Schedule.

• (4) The undertaker must operate the authorised development only in accordance with such procedure as approved, including any approved alteration made from time to time.

Removal of wrecks and obstructions, etc. Oil Spillage Plan

17

The undertaker must consult the Statutory Conservancy and Navigation Authority before submitting any oil pollution emergency plan to the Maritime and Coastguard Agency and must ensure that any such plan is compatible with the Statutory Conservancy and Navigation Authority’s existing plan known as “Humber Clean” or such other plan as supersedes “Humber Clean”.

PART 2 — FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

Application

18

• (1) The following provisions shall 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” shall be construed accordingly;

• “flood management infrastructure” includes any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

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

• “specified work” means any part of the authorised development that intersects with or sits over or above, touches or otherwise interferes with the flood management infrastructure, including the maintenance and inspection thereof.

19

• (1) Prior to the commencement of 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 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 23.

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

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

• (b) 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

• (c) may be given subject to such reasonable requirements as the Agency may have for the protection of any flood management infrastructure 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)(b).

• (5) In the case of a refusal, if requested to do so, the Agency must provide reasons for the grounds of refusal.

20

The undertaker must ensure—

• (a) that the authorised development including the associated development does not touch any existing flood management infrastructure; and

• (b) that the authorised development including the associated development does not impede the Agency’s access to the flood management infrastructure for maintenance and inspection purposes and where required the development is constructed to a sufficient height above the flood management infrastructure to facilitate the aforesaid access.

21

On completion of the works, all debris and surplus material must be removed from the land adjacent to the flood defence to avoid erosion, to the satisfaction of the Agency.

22

The undertaker must bring the conditions contained in paragraphs 19 to 21 to the attention of any agent or contractor responsible for carrying out the authorised development.

23

Any dispute arising between the undertaker and the Agency under this part of this Schedule shall, if the parties agree, be determined by arbitration under article 35 (arbitration), but shall otherwise be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor and the Secretary of State for Transport or its successor acting jointly on a reference to them by the undertaker or the Agency, after notice in writing by one to the other.

PART 3 — FOR THE PROTECTION OF EXOLUM

Application

24

For the protection of Exolum the following provisions, unless otherwise agreed in writing at any time between the undertaker and Exolum, have effect until the commencement of the operation of the authorised development.

Interpretation

25

In this Protective Provision—

• “apparatus” means the pipe-line and storage system and ancillary apparatus owned, operated or maintained by Exolum and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “Exolum” means Exolum Pipeline System Ltd and Exolum Immingham Limited and any successor in title;

• “functions” includes powers and duties;

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

• “pipe-line” means the whole or any part of a pipe-line belonging to or maintained by Exolum and includes any ancillary works and apparatus; all protective wrappings, valves, sleeves and slabs, cathodic protection units, together with ancillary cables and markers; and such legal interest and benefit of property rights and covenants as are vested in Exolum in respect of those items;

• “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;

• “premises” means land that Exolum owns, occupies or otherwise has rights to use including but not limited to storage facilities and jetties;

• “specified work” means any work which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus; and

• “working day” means any day other than a Saturday, Sunday or English bank or public holiday.

Acquisition of apparatus

26

Irrespective of any provision in this Order or anything shown on the land plans—

• (a) the undertaker may not acquire any apparatus, premises or any right of Exolum in respect of any apparatus or any of Exolum’s interests in land;

• (b) the undertaker must not obstruct or render less convenient the access to any apparatus or premises or interfere with or affect Exolum’s ability to operate the apparatus, otherwise than by agreement with Exolum, agreement not to be unreasonably delayed or withheld;

• (c) any right of Exolum to maintain, repair, renew, adjust, alter or inspect any apparatus may not be extinguished by the undertaker until any necessary alternative apparatus which allows Exolum to fulfil its functions in a manner not less efficient than previously has been constructed and is in operation to the reasonable satisfaction of Exolum;

• (d) the undertaker must not require that any apparatus is relocated or diverted or removed, otherwise than by agreement with Exolum; and

• (e) where alternative apparatus is proposed or reasonably necessary in consequence of the exercise of any of the powers conferred by the Order, the undertaker must afford to Exolum the necessary facilities and rights for the construction of any alternative apparatus.

Relevant Works

27

• (1) In this paragraph—

• “relevant works” means any works forming any part of the authorised development as do, will or are likely to affect any apparatus or Exolum’s access to any apparatus including those which involve—a physical connection or attachment to any apparatus;works within 15 metres of any apparatus;the crossing of any apparatus by other utilities;the use of explosives within 400 metres of any apparatus; orpiling, undertaking of a 3D seismic survey or the sinking of boreholes within 30 metres of any apparatus.

• (2) Unless a shorter period is otherwise agreed in writing between the undertaker and Exolum, not less than 35 days before commencing any relevant works, the undertaker must submit to Exolum the works details for the relevant works and such further particulars as Exolum may reasonably require and submit to the Undertaker within 28 days of receipt of the works details and no relevant works are to be commenced until Exolum, acting reasonably, has approved the works details.

• (3) The relevant works must be executed only in accordance with the works details approved by Exolum under this sub-paragraph 3 including any reasonable requirements notified to the undertaker by Exolum and Exolum shall be entitled to observe and inspect the execution of those works.

• (4) Nothing in this Schedule shall authorise the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 3 metres of the apparatus unless that apparatus is redundant and disconnected from Exolum’s remaining system.

• (5) If Exolum, in accordance with sub-paragraph 27(2), 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, this deed applies as if the removal of the Apparatus had been required by the undertaker and agreed with Exolum pursuant to sub-paragraph 27(2).

• (6) Nothing in this sub-paragraph (6) precludes the undertaker from submitting at any time or from time to time, but (unless otherwise agreed in writing between the undertaker and Exolum) in no case less than 28 days before commencing the execution of any relevant works, new works details, instead of the works details previously submitted, and having done so the provisions of this sub-paragraph 6 apply to and in respect of the new works details.

• (7) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of the apparatus, or (wherever situated) impose any load directly upon the apparatus or involve embankment works within 15 metres of the apparatus, the works details to be submitted to Exolum under sub-paragraph 27(2) shall be detailed including a method statement describing—

• (a) the exact position of the works;

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

• (c) the manner of their construction or renewal;

• (d) the position of the apparatus; and

• (e) by way of detailed drawings, every alteration proposed to be made to the apparatus.

Expenses

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• (1) Subject to the following provisions of this paragraph, the undertaker must pay to Exolum the reasonable costs and expenses incurred by Exolum in, or in connection with—

• (a) the inspection, removal, alteration or works for the protection of any apparatus;

• (b) the observation and inspection of the execution of any specified work including relevant works;

• (c) the imposition of reasonable requirements for the protection or alteration of apparatus; and

• (d) the undertaking by Exolum of its obligations under this protective provision including the review and assessment of plans and works details.

which may reasonably be required in consequence of the execution of any such works as are required under this protective provision.

• (2) The undertaker shall pay Exolum’s reasonable direct costs incurred in the management and handling of any expenses paid under this protective provision.

• (3) There will be no deduction from any sum payable under this protective provision as a result of—

• (a) the placing of apparatus of a better type, greater capacity or of greater dimensions, or at a greater depth than the existing apparatus; or

• (b) the placing of apparatus in substitution of the existing apparatus that may defer the time for renewal of the existing apparatus in the ordinary course.

• (4) Upon the submission of an invoice detailing the proper and reasonable costs and expenses incurred by Exolum, the undertaker shall pay Exolum within 30 days from the date on which the invoice is received.

Damage to property and other losses

29

• (1) Subject to the following provisions of this paragraph, the undertaker must pay to Exolum the reasonable costs and expenses incurred by Exolum in, or in connection with—

• (a) all loss, damage, liability, costs and expenses reasonably suffered or incurred by Exolum for which Exolum is legally liable as a result of legally sustainable claims brought against Exolum by any third party solely arising out of the carrying out of any works associated with the authorised development;

• (b) the cost reasonably incurred by Exolum in making good any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) arising from or caused by the carrying out of any works associated with the authorised development; and

• (c) the cost reasonably incurred by Exolum in stopping, suspending and restoring the supply through its pipeline and make reasonable compensation to Exolum for any other expenses, losses, damages, penalty or costs incurred by Exolum by reason or in consequence of any such damage or interruption provided that the same arises in consequence of the carrying out of any works associated with the authorised development.

• (2) Irrespective of anything to the contrary elsewhere in this protective provision—

• (a) the undertaker and Exolum must at all times take reasonable steps to prevent and mitigate any loss, damage, liability, claim, cost or expense (whether indemnified or not) which either suffers as a result of the other’s negligence or breach of this protective provision; and

• (b) neither the undertaker nor Exolum are liable for any loss, damage, liability, claim, cost or expense suffered or incurred by the other to the extent that the same are incurred as a result of or in connection with the sole, partial or complete breach of this protective provision or negligence arising out of an act, omission, default or works of the other, its officers, servants, contractors or agents.

• (3) Exolum must give to the undertaker reasonable notice of any claim or demand to which this paragraph 30 applies. The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. Exolum must not compromise or settle any such claim or make any admission which might be prejudicial to the claim. Exolum must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action, and is entitled to be repaid all reasonable expenses incurred in so doing.

• (4) The requirement to give reasonable notice of any claim or demand to the undertaker in sub-paragraph (3) above shall not apply in the event of an emergency or where the safety of the apparatus is at risk, in which case Exolum may take necessary action and notify the undertaker of its costs promptly afterwards.

30

• (1) Where in consequence of the proposed construction of any of the authorised development, Exolum requires the protection or alteration of apparatus under the terms of this protective provision, the undertaker must use its best endeavours to co–ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of Exolum’s undertaking.

• (2) Exolum must use reasonable endeavours to cooperate with the undertaker for the purposes outlined in this paragraph 30.

• (3) The undertaker and Exolum must act reasonably in respect of any given term of this protective provision and, in particular, (without prejudice to generality) where any consent or expression of satisfaction is required by this protective provision it must not be unreasonably withheld or delayed.

Miscellaneous

31

Nothing in this protective provision affects the provisions of any enactment or agreement regulating the relations between the undertaker and Exolum in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made provided that the terms of the relevant enactment or agreement are not inconsistent with the provisions of this Order. In the case of any inconsistency, in the context of the authorised development, the provisions of this Order prevail.

32

Any dispute arising between the Undertaker and Exolum under this Part of this Schedule is to be determined by arbitration in accordance with article 35 (arbitration).

Emergency circumstances

33

• (1) The undertaker acknowledges that Exolum provides services to His Majesty’s Government, using its apparatus, which may affect any works to be carried under this Order.

• (2) In the following circumstances, Exolum may on written notice to the undertaker immediately suspend all works that necessitate the stopping or suspending of the supply of product through any apparatus under this Order and Exolum shall not be in breach of its obligations to proceed—

• (a) circumstances in which, in the determination of the Secretary of State, there subsists a material threat to national security, or a threat or state of hostility or war or other crisis or national emergency (whether or not involving hostility or war); or

• (b) circumstances in which a request has been received, and a decision to act upon such request has been taken, by His Majesty’s Government for assistance in relation to the occurrence or anticipated occurrence of a major accident, crisis or natural disaster; or

• (c) circumstances in which a request has been received from or on behalf of NATO, the EU, the UN, the International Energy Agency (or any successor agency thereof) or the government of any other state for support or assistance pursuant to the United Kingdom’s international obligations and a decision to act upon such request has been taken by His Majesty’s Government or the Secretary of State; or

• (d) any circumstances identified by the COBRA committee of His Majesty’s Government (or any successor committee thereof); or

• (e) any situation, including where the United Kingdom is engaged in any planned or unplanned military operations within the United Kingdom or overseas, in connection with which the Secretary of State requires fuel capacity.

• (3) The parties agree to act in good faith and in all reasonableness to agree any revisions to any schedule, programme or costs estimate (which shall include costs of demobilising and remobilising any workforce, and any costs to protect Exolum’s apparatus “mid-works”) to account for the suspension.

• (4) Exolum shall not be liable for any costs, expenses, losses or liabilities the undertaker incurs as a result of the suspension of any activities under this paragraph or delays caused by it.

PART 4 — FOR THE PROTECTION OF THE IOT OPERATORS

Application

34

The provisions of this Part of this Schedule shall apply for the protection of the IOT Operators, unless otherwise agreed in writing at any time between the undertaker and the IOT Operators.

Interpretation

35

In this Part of this protective provision—

• “apparatus” means the pipe-line and storage system owned or maintained by the IOT Operators and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “Associated Petroleum Terminals (Immingham) Ltd” means Associated Petroleum Terminals (Immingham) Limited, company number 00564394 registered at Queens Road, Immingham, Grimsby, N E Lincolnshire, DN40 2PN, and any successor in title;

• “functions” includes powers and duties;

• “Humber Oil Terminal Trustees Ltd” means Humber Oil Terminal Trustees Limited, company number 00874993 registered at Queens Road, Immingham, Grimsby, N E Lincolnshire, DN40 2PN, and any successor in title;

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

• “IOT Operators” means Associated Petroleum Terminals (Immingham) Ltd and Humber Oil Terminal Trustees Ltd;

• “pipe-line” means the whole or any part of a pipe-line belonging to or maintained by IOT Operators and includes any ancillary works and apparatus; all protective wrappings, valves, sleeves and slabs, cathodic protection units, together with ancillary cables and markers; and such legal interest and benefit of property rights and covenants as are vested in IOT Operators in respect of those items;

• “specified work” means any work which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus; and

• “working day” means any day other than a Saturday, Sunday or English bank or public holiday.

Acquisition of apparatus

36

Irrespective of any provision in this Order or anything shown on the land plans—

• (a) the undertaker may not acquire any apparatus or obstruct or render less convenient the access to any apparatus, otherwise than by agreement with the IOT Operators; and

• (b) any right of the IOT Operators to maintain, repair, renew, adjust, alter or inspect any apparatus may not be extinguished by the undertaker until any necessary alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the IOT Operators.

Expenses

37

Subject to the following provisions of this paragraph, during the construction or operation of the authorised development the undertaker must pay to IOT Operators the reasonable costs and expenses incurred by the IOT Operators in, or in connection with—

• (a) the inspection, removal, alteration or protection of any apparatus; or

• (b) the watching and inspecting the execution of any specified work; or

• (c) the imposition of reasonable requirements for the protection or alteration of apparatus,

which may reasonably be required in consequence of the execution of any such works as are required under this Part of this Schedule.

Damage to property and other losses

38

• (1) Subject to the following provisions of this paragraph, the undertaker must—

• (a) grant the IOT Operators, upon reasonable notice access to any apparatus during the carrying out of any relevant works or the operation of the authorised development reasonably required for the purposes of inspection, maintenance and repair of such apparatus and upon reasonable notice. For the purposes of this subparagraph (a), ‘apparatus’ includes any connection into pipelines or associated infrastructure operated by the IOT Operators and/or any successor pipeline system operator.

• (b) pay the IOT Operators for all loss, damage, liability, costs and expenses reasonably suffered or incurred by the IOT Operators for which the IOT Operators are legally liable as a result of legally sustainable claims brought against the IOT Operators by any third party solely arising out of the carrying out of any relevant works or the operation of the authorised development;

• (c) pay the cost reasonably incurred by the IOT Operators in making good any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) arising from or caused by the carrying out of any relevant works or the operation of the authorised development;; and

• (d) pay the cost reasonably incurred by the IOT Operators in stopping, suspending and restoring the supply through its pipeline and make reasonable compensation to the IOT Operators for any other expenses, losses, damages, penalty or costs incurred by the IOT Operators by reason or in consequence of any such damage or interruption provided that the same arises in consequence of the carrying out of any relevant works or the operation of the authorised development.

• (2) Irrespective of anything to the contrary elsewhere in this protective provision—

• (a) the undertaker and the IOT Operators must at all times take reasonable steps to prevent and mitigate any loss, damage, liability, claim, cost or expense (whether indemnified or not) which either suffers as a result of the other’s negligence or breach of this Part of this Schedule; and

• (b) neither the undertaker nor the IOT Operators are liable for any loss, damage, liability, claim, cost or expense suffered or incurred by the other to the extent that the same are incurred as a result of or in connection with the sole, partial or complete breach of this protective provision or negligence arising out of an act, omission, default or works of the other, its officers, servants, contractors or agents.

• (3) The IOT Operators must give to the undertaker reasonable notice of any claim or demand to which this paragraph 38 applies. The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. The IOT Operators must not compromise or settle any such claim or make any admission which might be prejudicial to the claim. The IOT Operators must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action, and is entitled to be repaid all reasonable expenses incurred in so doing.

• (4) In this paragraph—

• “relevant works” means such of the authorised development as—does, will or is likely to affect any apparatus; orinvolves a physical connection or attachment to any apparatus.

Co-operation and reasonableness

39

• (1) Where as a consequence of the construction of any part of the authorised development, the undertaker requires the removal of apparatus or the IOT Operators, acting reasonably, requires the protection or alteration of apparatus, the undertaker must, if it agrees that such works are necessary, use its best endeavours to co–ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the IOT Operators’ undertaking and the IOT Operators must use its best endeavours to cooperate with the undertaker for that purpose.

• (2) the undertaker and the IOT Operators must act reasonably in compliance with the terms of this protective provision and, in particular, (without prejudice to generality) where any consent or expression of satisfaction is required it must not be unreasonably withheld or delayed.

Miscellaneous

40

Nothing in this protective provision affects the provisions of any enactment or agreement regulating the relations between the undertaker and the IOT Operators in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made provided that in connection with the construction of the authorised development, the terms of the relevant enactment or agreement are not inconsistent with the provisions of this Order, including this protective provision. In the case of any inconsistency in the context of the authorised development, the provisions of this Order, including this protective provision, prevail.

Emergency circumstances

41

• (1) The undertaker acknowledges that the IOT Operators provides services to His Majesty’s Government, using its apparatus, which may affect any works to be carried under this Order.

• (2) In the following circumstances, the IOT Operators may on written notice to the undertaker require the immediate suspension of works to construct the authorised development if such works necessitate the stopping or suspending of the supply of product through any apparatus and the IOT Operators shall not be in breach of its obligations under this protective provision in circumstances—

• (a) in which, in the determination of the Secretary of State, there subsists a material threat to national security, or a threat or state of hostility or war or other crisis or national emergency (whether or not involving hostility or war); or

• (b) in which a request has been received, and a decision to act upon such request has been taken, by His Majesty’s Government for assistance in relation to the occurrence or anticipated occurrence of a major accident, crisis or natural disaster; or

• (c) in which a request has been received from or on behalf of NATO, the EU, the UN, the International Energy Agency (or any successor agency thereof) or the government of any other state for support or assistance pursuant to the United Kingdom’s international obligations and a decision to act upon such request has been taken by His Majesty’s Government or the Secretary of State; or

• (d) identified by the COBRA committee of His Majesty’s Government (or any successor committee thereof) as identified as falling within any of the above sub-paragraphs of this paragraph; or

• (e) where the United Kingdom is engaged in any planned or unplanned military operations within the United Kingdom or overseas, in connection with which the Secretary of State requires fuel capacity.

• (3) The parties agree to act in good faith and in all reasonableness to agree any revisions to any schedule, programme or costs estimate (which shall include costs of demobilising and remobilising any workforce, and any costs to protect the IOT Operators’ apparatus “mid-works”) to account for the suspension.

• (4) The IOT Operators shall not be liable for any costs, expenses, losses or liabilities the undertaker incurs as a result of the suspension of any activities under this paragraph or delays caused by it.

PART 5 — FOR THE PROTECTION OF NORTHERN POWERGRID

Application

42

For the protection of Northern Powergrid the following provisions, unless otherwise agreed in writing between the undertaker and Northern Powergrid, have effect for the duration of the construction of the authorised works, including (for the avoidance of doubt)—

• (a) where this Order is amended by way of supplementary order, then the following provisions have effect for the construction of the development authorised by such supplementary order; and

• (b) where a diversion or replacement of Northern Powergrid’s apparatus is required during the construction phase of this Order or any supplementary order, the following provisions have effect for as long as it takes for the diversion or replacement to be completed.

Interpretation

43

In this Part of this Schedule—

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

• “apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989⁶⁴), belonging to or maintained by Northern Powergrid and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “authorised works” means so much of the works authorised by this Order which affect existing Northern Powergrid’s apparatus within the Order limits;

• “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;

• “Northern Powergrid” means Northern Powergrid (Yorkshire) PLC (Company Number 04112320) whose registered address is Lloyds Court, 78 Grey Street, Newcastle upon Tyne NE1 6AF;

• “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 and shall include measures proposed by the undertaker to ensure the grant of sufficient land or rights in land necessary to mitigate the impacts of the works on Northern Powergrid’s undertaking;

• “supplementary order” means any order that is made by the Secretary of State that supersedes or amends this Order, including for the avoidance of doubt a non-material change order or a new application for a development consent order in respect of the Immingham Eastern Ro-Ro Terminal development; and

• “working day” means a day other than a Saturday or a Sunday or public holiday in England.

Acquisition of Land

44

Regardless of any provision in this Order or anything shown on the land plans the undertaker must not acquire any apparatus or override any easement or other interest of Northern Powergrid otherwise than by agreement with Northern Powergrid, such agreement not to be unreasonably withheld or delayed.

Removal of Apparatus

45

• (1) If, in the exercise of the powers conferred by this Order, the undertaker requires that Northern Powergrid’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Northern Powergrid to maintain that apparatus in that land and gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided pursuant to a completed easement for a tenure no less than exists to the apparatus being relocated or diverted or is authorised by written agreement from Northern Powergrid, all to the reasonable satisfaction of Northern Powergrid in accordance with sub-paragraphs (2) to (5).

• (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 Northern Powergrid 42 days’ 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 the undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Northern Powergrid 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 Northern Powergrid must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible and at the cost of the undertaker (subject to prior approval by the undertaker of its estimate of costs of doing so) use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Northern Powergrid and the undertaker or in default of agreement settled by arbitration in accordance with article 35 (arbitration).

• (5) Northern Powergrid must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 35 (arbitration), and after the grant to Northern Powergrid 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.

Facilities and rights for alternative apparatus

46

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and Northern Powergrid or in default of agreement settled by arbitration in accordance with article 35 (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 Northern Powergrid 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 Northern Powergrid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

47

• (1) Not less than 28 working 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 (including conducting any activities whether intentionally or unintentionally, through for example ground or machinery collapse, which may affect Northern Powergrid’s apparatus or encroach on safety distances to live equipment), or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 45, the undertaker must submit to Northern Powergrid a plan, section and description of the works to be executed.

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

• (3) Any requirements made by Northern Powergrid under sub-paragraph (2) must be made within a period of 24 working days beginning with the date on which a plan, section and description under sub-paragraph (1) is submitted to it.

• (4) If Northern Powergrid 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, sub-paragraphs 1 to 3 and 5 and 6 apply as if the removal of the apparatus had been required by the undertaker under paragraph 45.

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

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

Expenses and costs

48

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to Northern Powergrid within 50 days of receipt of a valid VAT invoice all reasonable and proper expenses costs or charges incurred by Northern Powergrid—

• (a) 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 45(2) including without limitation—

• (i) any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that it is agreed Northern Powergrid elects to use compulsory purchase powers to acquire any necessary rights under paragraph 45(3) all costs reasonably incurred as a result of such action;

• (ii) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

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

• (iv) the approval of plans;

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

• (vi) 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

• (b) in assessing and preparing a design for its apparatus to address and accommodate the proposals of the undertaker whether or not the undertaker proceeds to implement those proposals or alternative or none at all provided that if it so prefers Northern Powergrid may abandon apparatus that the undertaker does not seek to remove in accordance with paragraph 46(1) having first decommissioned such apparatus;

• (c) where any payment falls due pursuant to paragraph 48(1), Northern Powergrid shall—

• (i) provide an itemised invoice or reasonable expenses claim to the undertaker; and

• (ii) provide ‘reminder letters’ to the undertaker for payment to be made within the 50 days on the following days after the invoice or reasonable expenses claim to the undertaker:

• (aa) 15 days (‘reminder letter 1’);

• (bb) 29 days (‘reminder letter 2’);

• (cc) 43 days (‘reminder letter 3’); and

• (iii) commence debt proceedings to recover any unpaid itemised invoice or reasonable expenses claim on the fiftieth day of receipt of the same where payment has not been made.

• (2) There is to 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 and for the avoidance of doubt, if the apparatus removed under the provisions of this Part of this Schedule has nil value, no sum will be deducted from the amount payable under sub-paragraph (1) if in accordance with the provisions of this Part of this Schedule—

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

• (b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 35 (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 Northern Powergrid by virtue of sub-paragraph (1) must be reduced by the amount of that excess save where it is not possible on account of project time limits and/or supply issues to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs shall be borne by the undertaker.

• (3) For the purposes of sub-paragraph (2)—

• (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 where such an extension is required in consequence of the execution of any such works as are referred to in paragraph 45(2); and

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

• (4) The undertaker shall not be liable for any claim by Northern Powergrid for charges, costs or expenses under this paragraph 48 unless prior to Northern Powergrid undertaking the relevant works and/or incurring those charges, costs or expenses, the undertaker has—

• (a) received an estimate of that charge, cost or expense along with all necessary supporting information required to evidence the amount and reasonableness of, and the reasonable steps taken to minimise, the charge, cost or expense and a timescale in which the undertaker will be required to make payment, and

• (b) approved the estimate in writing (approval not to be unreasonably withheld or delayed),

and Northern Powergrid may not commence any work in relation to which an estimate is submitted until it has been agreed in writing by the undertaker.

• (5) The undertaker will use reasonable endeavours to agree the amount of any estimates submitted to it under sub-paragraph (4) within 15 working days of receipt, and must acknowledge as part of its approval that any estimate is only an estimate and may be subject to change.

• (6) Subject to Northern Powergrid updating the undertaker by way of submission of an updated estimate for approval under sub-paragraph (4) where any charges, costs or expenses are anticipated to exceed an approved estimate, the undertaker’s approval of an estimate shall in no way limit National Powergrid’s recovery under this paragraph 48, and the undertaker shall pay the actual costs incurred by Northern Powergrid and submitted for payment whether such costs are above or below the estimate provided and upon making payment under this paragraph, the undertaker may—

• (a) confirm to Northern Powergrid that the charge, cost or expense is accepted; or

• (b) confirm to Northern Powergrid that the charge, cost or expense if not accepted and the reasons why it considers this to be the case,

and Northern Powergrid must take in to account any representations made by the undertaker in accordance with sub-paragraph (b) and must following receipt of such representations confirm whether or not the requested refund, or any part thereof, is accepted or rejected, and the reasons why it considered this to be the case; and make payment of the requested refund, or part thereof which is not rejected, as applicable such confirmation or payment not to be unreasonably withheld or delayed.

• (7) Either party may refer any difference or dispute arising out of sub-paragraph (6) above to arbitration in accordance with article 35 (arbitration) of the Order.

Damage to property and other losses

49

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 45(2), or in consequence of the, 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 it) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Schedule any subsidence resulting from any of these works, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of Northern Powergrid, or there is any interruption in any service provided by Northern Powergrid, or Northern Powergrid becomes liable to pay any amount to a third party as a consequence of any default, negligence or omission by the undertaker in carrying out the authorised works, the undertaker must—

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

• (b) indemnify Northern Powergrid for any other expenses, loss, damages, penalty, proceedings, claims or costs incurred by or recovered from Northern Powergrid,

by reason or in consequence of any such damage or interruption or Northern Powergrid becoming liable to any third party.

• (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 Northern Powergrid, its officers, employees, servants, contractors or agents.

• (3) Northern Powergrid 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 which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

• (4) Northern Powergrid 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 49 applies. If requested to do so by the undertaker, Northern Powergrid must provide an explanation of how the claim has been minimised or details to substantiate any cost or compensation claimed pursuant to sub-paragraph (1). The undertaker shall only be liable under this paragraph 49 for claims reasonably incurred by Northern Powergrid.

• (5) Where Northern Powergrid is liable to pay any amount to a third party as described in sub-paragraph (1), the total liability of the undertaker to Northern Powergrid under sub-paragraph (1) in respect of each third party claim shall be limited to the extent that Northern Powergrid has properly paid expenses, losses, demands, damages, claims, penalties, costs, interest or any other liability arising from any proceedings to such third party pursuant to—

• (a) any statutory compensation scheme, obligation pursuant to its transmission license, or any agreement regulated thereby; or

• (b) an award of damages by a court or a settlement or compromise of a claim, demand or proceeding provided that Northern Powergrid will not admit liability or offer to settle with a third party without the undertaker’s consent (not to be unreasonably withheld or delayed).

50

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

Cooperation

51

Where in consequence of the proposed construction of any of the authorised development, the undertaker or Northern Powergrid requires the removal of apparatus under paragraph 45 or otherwise or Northern Powergrid makes requirements for the protection or alteration of apparatus under paragraph 48, the undertaker must use its reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and the need to ensure the safe and efficient operation of Northern Powergrid’s undertaking taking into account the undertaker’s desire for the efficient and economic execution of the authorised development and the undertaker and Northern Powergrid shall use all reasonable endeavours to co-operate with the undertaker for those purposes.

52

If in consequence of an agreement reached in accordance with paragraph 44 or the powers granted under this Order the access to any apparatus or alternative apparatus is materially obstructed, the undertaker shall provide such alternative means of access to such apparatus or alternative apparatus as will enable Northern Powergrid to maintain or use the said apparatus no less effectively than was possible before such obstruction.

53

The plans submitted to Northern Powergrid by the undertaker pursuant to this Part of the Schedule must be sent to Northern Powergrid at property@northernpowergrid.com or such other address as Northern Powergrid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

54

Where practicable, the undertaker and Northern Powergrid will make reasonable efforts to liaise and co-operate in respect of information that is relevant to the safe and efficient construction of the authorised development. Such liaison shall be carried out where any works are:

• (a) within 15m of any above ground apparatus; and/or

• (b) are to a depth of between 0–4m below ground level.

PART 6 — FOR THE PROTECTION OF ANGLIAN WATER

Application

55

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

Interpretation

56

In this Part of this Schedule—

• “1991 Act” means the New Roads and Street Works Act 1991;

• “alternative apparatus” means alternative apparatus adequate to enable Anglian Water to fulfil its statutory functions in a manner no less efficient than previously;

• “Anglian Water” means Anglian Water Services Limited;

• “apparatus” means:works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage including for the avoidance of doubt any decommissioned works, mains, pipes or other apparatus;any drain or works vested in Anglian Water under the Water Industry Act 1991⁶⁵;any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act;any drainage system constructed for the purpose of reducing the volume of surface water entering any public sewer belonging to Anglian Water; andincludes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;and for the purpose of this definition, where words are defined by section 219 of that Act, they shall be taken to have the same meaning;