Legalize / United Kingdom / Statutory-Instrument

The Net Zero Teesside Order 2024

Type Statutory-Instrument

Publication 2024-02-16

Last updated 2025-10-29

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(5) CF Fertilisers 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 86 applies. If requested to do so by the undertaker, CF Fertilisers 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 86 for claims reasonably incurred by CF Fertilisers.

Arbitration

87

Any difference or dispute arising between the undertaker and CF Fertilisers under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and CF Fertilisers, be referred to and settled by arbitration in accordance with article 47 (arbitration).

PART 8 — FOR THE PROTECTION OF EXOLUM SEAL SANDS LTD AND EXOLUM RIVERSIDE LTD

88

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

89

In this Part of this Schedule—

“Exolum” means Exolum Seal Sands Ltd (Company number 00465548) and Exolum Riverside Ltd (Company number 03422427), both of whose registered address is 1st Floor 55 King William Street, London EC4R 9AD and any successor in function to Exolum’s operations;

“the Exolum operations” means the operations and assets within the Order limits or operations and assets which have the benefit of rights (including access) over the Order limits vested in Exolum including the pipeline crossing the Order limits operated by Exolum used at all times and all ancillary apparatus including such works and apparatus properly appurtenant to the pipelines as are specified by section 65(2) (meaning of “pipe-line”) of the Pipe-lines Act 1962;

“restricted works” means any works forming any part of the authorised development that are near to, or will or may affect the Exolum operations or access to them including—all works within 15 metres of the Exolum operations;the crossing of the Exolum operations by other utilities;the use of explosives within 400 metres of the Exolum operations; andpiling, undertaking of a 3D seismic survey or the sinking boreholes within 30 metres of the Exolum operations,whether carried out by the undertaker or any third party in connection with the authorised development; and

“works details” means—plans and sections;a method statement describing—the exact position of the works;the level at which the works are proposed to be constructed or renewed;the manner of the works’ construction or renewal including details of excavation, positioning of plant etc.;the position of all apparatus;by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;any intended maintenance regime;details of the proposed method of working and timing of execution of works;details of vehicle access routes for construction and operational traffic; andany other information reasonably required by Exolum to assess the works;where the restricted works will or may be situated on, over, under or within 15 metres measured in any direction of the Exolum operations, or (wherever situated) impose any load directly upon the Exolum operations or involve embankment works within 15 metres of the Exolum operations, the method statement must also include—the position of the Exolum operations; andby way of detailed drawings, every alteration proposed to be made to the Exolum operations; andany further particulars provided in response to a request under paragraph 90.

90

(1) Unless a shorter period is otherwise agreed in writing between the undertaker and Exolum, not less than thirty five (35) days before commencing the execution of any restricted works, the undertaker must submit to Exolum the works details for the restricted works and such further particulars as Exolum may, within 28 days from the day on which the works details are submitted under this paragraph, reasonably require.

(2) No restricted works are to be commenced until the works details in respect of those works submitted under sub-paragraph (1) have been approved by Exolum.

(3) Any approval of Exolum required under this paragraph 90 must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as Exolum may require to be made for—

(a) the continuing safety and operational viability of the Exolum operations; and

(b) the requirement for Exolum to have reasonable access with or without vehicles to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the Exolum operations.

(4) Any approval of Exolum required under this paragraph 90 including any reasonable requirements required by Exolum under sub-paragraph (3), must be made in writing within a period of 21 days (unless a shorter period is otherwise agreed in writing between the undertaker and Exolum) beginning with the date on which the works details were submitted to Exolum under sub-paragraph (1) or the date on which any further particulars requested by Exolum under sub-paragraph (1) were submitted to Exolum (whichever is the later).

(5) The authorised development must be executed only in accordance with the works details approved by Exolum under this paragraph 90 including any reasonable requirements notified to the undertaker in accordance with sub-paragraph (3) and Exolum shall be entitled to watch and inspect the execution of those works.

(6) If Exolum in accordance with sub-paragraph (3) and in consequence of the restricted works proposed by the undertaker, reasonably requires the removal of any of the Exolum operations and gives written notice to the undertaker of that requirement, this Order applies as if the removal of the apparatus had been required by the undertaker under sub-paragraph (1).

(7) Nothing in this paragraph 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 restricted works, new works details, instead of the works details previously submitted, and having done so the provisions of this paragraph 90 apply to and in respect of the new works details.

Prohibition of acquisition and interference

91

(1) Regardless of any provision in this Order or anything shown on the land plans or if the Order applies to any interest in any land in which the Exolum operations are placed or over which access to the Exolum operations is enjoyed—

(a) the undertaker must not, otherwise than in accordance with terms of this Order including any approval given under this Part—

(i) obstruct or render less convenient the access to the Exolum operations;

(ii) interfere with or affect the Exolum operations or Exolum’s ability to carry out its functions including operating its pipeline and its terminal by way of the creation of restrictive covenants or otherwise;

(iii) require that the Exolum operations are relocated or diverted; or

(iv) remove or require to be removed any Exolum operations; and

(b) any right of Exolum to access the Exolum operations shall not be extinguished until any necessary alternative access has been provided to the reasonable satisfaction of Exolum.

(2) Where the undertaker takes temporary possession of any land or carries out survey works on land in respect of which Exolum has an easement, right, operations, assets or other interests (together “Exolum’s rights”)—

(a) where Exolum’s rights do not provide or require access over, in or under the Order limits, there is no restriction on the exercise of such rights;

(b) where Exolum’s rights do provide or reasonably require access in, on or under the Order limits, Exolum may exercise those rights where reasonably necessary—

(i) in an emergency without notice; and

(ii) in non-emergency circumstances having first given the undertaker prior written notice in order to allow the parties to liaise over timing and co-ordination of their respective works during the period of temporary possession; and

(c) subject to paragraph (b) the undertaker shall not extinguish Exolum’s rights, unless in accordance with the provisions of this Order.

Cathodic protection testing

92

Where in the reasonable opinion of Exolum or the undertaker—

(a) the authorised development might interfere with the cathodic protection forming part of the Exolum operations; or

(b) the Exolum operations might interfere with the proposed or existing cathodic protection forming part of the authorised development,

Expenses

93

(1) Subject to the following provisions of this paragraph 93, the undertaker must pay to Exolum the reasonable and properly incurred costs and expenses (including reasonable staffing costs if work is carried out in-house) incurred by Exolum in, or in connection with—

(a) undertaking its obligations under this Order including—

(i) the execution of any works under this Order including for the protection of the Exolum operations; and

(ii) the review and assessment of works details in accordance with paragraph 90;

(b) the watching of and inspecting the execution of the restricted works; and

(2) Prior to incurring any costs or expenses associated with the activities in sub-paragraph (1), Exolum must give prior written notice to the undertaker of the activities to be undertaken and an estimate of the costs or expenses to be incurred.

Indemnity

94

(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 90, any damage is caused to the Exolum operations, or there is any interruption in any service provided, or in the supply of any goods, by Exolum, the undertaker must—

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

(b) make reasonable compensation to Exolum for any other expenses, loss, damages, penalty or costs incurred by Exolum, by reason or in consequence of any such damage or interruption.

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

(3) Exolum 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) Exolum 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 94 applies. If requested to do so by the undertaker, Exolum 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 94 for claims reasonably incurred by Exolum.

Arbitration

95

(1) The undertaker and Exolum shall use their reasonable endeavours to secure the amicable resolution of any dispute or difference arising between them out of or in connection with this Order in accordance with the following provisions of this paragraph.

(2) Any difference or dispute arising between the undertaker and Exolum under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Exolum, be referred to and settled by arbitration in accordance with article 47 (arbitration).

(3) Where there has been a reference to an arbitrator in accordance with sub-paragraph (1) and the arbitrator gives approval for the works details, the authorised development must be carried out in accordance with the approval and conditions contained in the decision of the arbitrator under sub-paragraph (1)

PART 9 — FOR THE PROTECTION OF INEOS NITRILES (UK) LIMITED

96

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

97

In this Part of this Schedule—

“INEOS” means INEOS Nitriles (UK) Limited (Company number 06238238) whose registered address is PO Box 62 Seal Sands, Middlesbrough TS2 1TX and any successor in title or function to the INEOS operations;

“the INEOS operations” means the operations or property within Order limits vested in INEOS Nitriles (UK) Limited including the pipeline crossing the Order limits owned and operated by INEOS used at various times for the passage of multi-purpose hydrocarbon fuels and all ancillary apparatus including such works and apparatus properly appurtenant to the pipelines as are specified by section 65(2) (meaning of “pipe-line”) of the Pipe-lines Act 1962; and

“works details” means—plans and sections;details of the proposed method of working and timing of execution of works;details of vehicle access routes for construction and operational traffic; andany further particulars provided in response to a request under paragraph 98.

98

Before commencing any part of the authorised development which would have an effect on the operation or maintenance of the INEOS operations or access to them or which would otherwise be located on land within the INEOS operations, the undertaker must submit to INEOS the works details for the proposed works and such further particulars as INEOS may, within 28 days from the day on which the works details are submitted under this paragraph, reasonably require.

99

No works comprising any part of the authorised development which would have an effect on the operation or maintenance of the INEOS operations or access to them or which would otherwise be located on land within the INEOS operations are to be commenced until the works details in respect of those works submitted under paragraph 98 have been approved by INEOS.

100

(1) Any approval of INEOS required under paragraph 99 must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as INEOS may require to be made for—

(a) the continuing safety and operational viability of the INEOS operations;

(b) the continuing safe operation of infrastructure not belonging to INEOS but within or adjacent to the INEOS operations, including access at all times for inspection maintenance and repair etc whether that be by INEOS or by any party with rights in the land or infrastructure on or in the land; and

(i) uninterrupted and unimpeded emergency access with or without vehicles to the INEOS operations at all times; and

(ii) uninterrupted and unimpeded access with or without vehicles to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the INEOS operations.

(2) Where INEOS can reasonably demonstrate that the authorised development will significantly adversely affect the safety of the INEOS operations it is entitled to withhold its authorisation until the undertaker can demonstrate to the reasonable satisfaction of INEOS that the authorised development will not significantly adversely affect the safety of the INEOS operations.

(3) The authorised development must be carried out in accordance with the works details approved under paragraph 99 and any requirements imposed on the approval under sub-paragraph (1).

(4) Where there has been a reference to an arbitrator in accordance with paragraph 103 and the arbitrator gives approval for the works details, the authorised development must be carried out in accordance with the approval and conditions contained in the decision of the arbitrator under paragraph 103.

Compliance with requirements, etc. applying to the INEOS operations

101

In undertaking any works in relation to the INEOS operations or exercising any rights relating to or affecting the INEOS operations, the undertaker must comply with such conditions, requirements or regulations relating to health, safety, security and welfare as are operated in relation to access to or activities in the INEOS operations.

Indemnity

102

(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 98, any damage is caused to the INEOS operations or there is any interruption in any service provided, or in the supply of any goods, by INEOS, the undertaker must—

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

(b) make reasonable compensation to INEOS for any other expenses, loss, damages, penalty or costs incurred by INEOS, by reason or in consequence of any such damage or interruption.

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

(3) INEOS 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) INEOS 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 102 applies. If requested to do so by the undertaker, INEOS 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 102 for claims reasonably incurred by INEOS.

Arbitration

103

Any difference or dispute arising between the undertaker and INEOS under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and INEOS, be referred to and settled by arbitration in accordance with article 47 (arbitration).

PART 10 — FOR THE PROTECTION OF MARLOW FOODS LIMITED

104

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

105

In this Part of this Schedule—

“Marlow Foods” means Marlow Foods Limited (Company number 01752242) whose registered address is Quorn Foods, Station Road, Stokesley, North Yorkshire TS9 7AB and any successor in title to the Marlow Foods operations; and

“the Marlow Foods operations” means the operations of Marlow Foods located on Nelson Avenue, Billingham TS23 4HA.

Regulation of powers

106

The undertaker must not exercise the powers granted under this Order so as to hinder or prevent access to the Marlow Foods operations by Marlow Foods, its employees, contractors or sub-contractors, such access to be either along the existing highway route at Nelson Avenue, Billingham or such diversionary route as the undertaker may provide.

107

The undertaker must give to Marlow Foods not less than 28 days’ written notice of its intention to commence the construction of any part of the authorised development that uses the existing highway route at Nelson Avenue, Billingham.

Co-operation

108

Insofar as the construction of any part of the authorised development and access to the Marlow Foods operations would have an effect on each other, the undertaker and Marlow Foods must—

(a) co-operate with each other with a view to ensuring—

(i) that access for the purposes of constructing the authorised development is maintained for the undertaker, its employees, contractors and sub-contractors; and

(ii) that access to the Marlow Foods operations is maintained for Marlow Foods, its employees, contractors and sub-contractors; and

(b) use reasonable endeavours to avoid any conflict arising from the access to the Marlow Foods operations and the construction of the authorised development.

Indemnity

109

(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the use of the highway at Nelson Avenue by the undertaker in connection with the construction of the authorised development, there is any interruption in any service provided, or in the supply of any goods, by Marlow Foods, the undertaker must make reasonable compensation to Marlow Foods for any expenses, loss, damages, penalty or costs incurred by Marlow Foods, by reason or in consequence of any such interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to—

(a) any damage or interruption to the extent that it is attributable to the act, neglect or default of Marlow Foods, its officers, employees, servants, contractors or agents; or

(b) any indirect or consequential loss or loss of profits by Marlow Foods.

(3) Marlow Foods 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) Marlow Foods 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 109 applies. If requested to do so by the undertaker, Marlow Foods 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 109 for claims reasonably incurred by Marlow Foods.

Arbitration

110

Any difference or dispute arising between the undertaker and Marlow Foods under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Marlow Foods, be referred to and settled by arbitration in accordance with article 47 (arbitration).

PART 11 — FOR THE PROTECTION OF RAILWAY INTERESTS

111

The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 124 of this Part of this Schedule, any other person on whom rights or obligations are conferred by that paragraph.

112

(1) In this Part of this Schedule—

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

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

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of their powers under section 8 (licences) of the Railways Act 1993[^f00056];

“Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at Waterloo General Office, London, United Kingdom, SE1 8SW) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited and any successor to Network Rail Infrastructure Limited’s railway undertaking;

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

“protective works” means any works specified by the engineer under paragraph 114(4);

“railway operational procedures” means procedures specified under any access agreement (as defined in Part 1, section 83(1) of the Railways Act 1993) or station lease;

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

“regulatory consents” means any consent or approval required under—the Railways Act 1993;the network licence; and/orany other relevant statutory or regulatory provisions,by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development; ...

“specified work” means so much of any of the authorised development as is or is to be situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property and for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article 5 (maintenance of authorised development); and

“undertaker” has the same meaning as in article 2 (interpretation) of this Order.

113

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

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

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

(b) use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to this Order.

114

The undertaker must not under the powers of this Order do anything which would result in railway property being incapable of being used or maintained or which would affect the safe running of trains on the railway.

115

(1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration under article 47 (arbitration).

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

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s reasonable opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation decommissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction.

116

(1) Any specified work and any protective works to be constructed by virtue of paragraph 114(4) must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 114;

(b) under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

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

(2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

117

The undertaker must—

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

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

118

Network Rail must at all times afford reasonable facilities to the undertaker and its employees, contractors or agents for access to any works carried out by Network Rail under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.

119

(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations or additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations or additions as are to be permanent, a capitalised sum representing the increase of the costs which are expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 114, pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 119(a), provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

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

120

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

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 114(3) or in constructing any protective works under the provisions of paragraph 114(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

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

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

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

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

121

(1) In this paragraph—

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

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

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 114 for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

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

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

(a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 114) in order to identify all potential causes of EMI and the measures required to eliminate them;

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

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

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 114 has effect subject to the sub-paragraph.

(6) Prior to the commencement of operation of the authorised development the undertaker shall test the use of the authorised development in a manner that shall first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph (3) the testing of the authorised development causes EMI, then the undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent specified in sub-paragraph (5)) to Network Rail’s apparatus.

(7) In the event of EMI having occurred—

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

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

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

(d) The undertaker shall not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph to prevent EMI occurring.

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

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

(b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 115.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 124(1) applies to the costs and expenses reasonably incurred or losses reasonably suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph 119(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

122

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

(2) Regardless of anything in sub-paragraph (1), on receipt of a notice given by Network Rail pursuant to sub-paragraph (1), the undertaker may respond in writing to Network Rail requesting Network Rail to take the steps as may be reasonably necessary to put the specified work the subject of the notice in such state of maintenance as not adversely to affect railway property. If Network Rail agrees to undertake the steps it must give to the undertaker reasonable notice of its intention to carry out such steps, and the undertaker must pay to Network Rail the reasonable cost of doing so.

123

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

124

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

125

(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, maintenance or operation of a specified work or the failure thereof 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 within the control of the undertaker whilst engaged upon a specified work;

(c) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others within the control of the undertaker whilst accessing to or egressing from the authorised development;

(d) in respect of any damage caused to or additional maintenance required to railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others within the control of the undertaker; or

(e) in respect of costs incurred by Network Rail in complying with any railway operational procedure or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the authorised development,

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 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 shall not (if it was done without negligence on the part of Network Rail or any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must—

(a) give the undertaker reasonable written notice of any such claims or demands;

(b) not make any settlement or compromise of such a claim or demand without the prior consent of the undertaker; and

(c) take all steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands and to minimise any costs, expenses, loss, demands and penalties to which the indemnity under this paragraph 124 applies. If requested to do so by the undertaker, Network Rail is to 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 is to only be liable under this paragraph 124 for claims reasonably incurred by Network Rail.

(3) In no circumstances is the undertaker liable to Network Rail under sub-paragraph (1) for any indirect or consequential loss or loss of profits, save that the sums payable by the undertaker under 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 shall, in the event of default, be 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 specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

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

126

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 124) 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).

127

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.

128

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 and land plans and described in the book of reference;

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

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

129

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.

130

The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent under article 8 (consent to transfer benefit of this Order) and any such notice must be given no later than 7 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

131

The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 45 (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 12 — FOR THE PROTECTION OF NORTHERN POWERGRID (NORTHEAST) PLC

132

For the protection of Northern Powergrid (Northeast) Plc the following provisions have effect, unless otherwise agreed in writing between the undertaker and Northern Powergrid.

133

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 Part 1 of the 1989 Act), 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 gives access to Northern Powergrid to such apparatus;

“functions” includes powers and duties;

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

“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed and shall include any measures proposed by the undertaker to ensure the grant of sufficient land or rights in land necessary to mitigate the impact of the works on the apparatus; and

“Northern Powergrid” means Northern Powergrid (Northeast) Plc (Company number 02906593) whose registered office is at Lloyds Court, 78 Grey Street, Newcastle Upon Tyne, NE1 6AF.

134

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

135

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

136

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

137

(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that 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 to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided pursuant to a completed easement for a tenure no less than exists to the apparatus being relocated or diverted, 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 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 Northern Powergrid 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 practicable 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 paragraph 148.

(5) Northern Powergrid must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with paragraph 148, and after the grant to Northern Powergrid of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

138

(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Northern Powergrid facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Northern Powergrid or in default of agreement settled by arbitration in accordance with paragraph 148.

(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.

139

(1) Not less than ninety days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 136(2), 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 twenty-eight days beginning with the date on which a plan, section and description under sub-paragraph (1) are 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, paragraphs 131 to 137> apply as if the removal of the apparatus had been required by the undertaker under paragraph 136(2).

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

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to 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.

140

(1) Subject to the following provisions of this paragraph, the undertaker must repay to Northern Powergrid the reasonable expenses 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 136(2); 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 136(1) having first decommissioned such apparatus.

(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).

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 148 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) is to be reduced by the amount of that excess.

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

(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus where such extension is required in consequence of the execution of any such works as are referred to in paragraph 136(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.

(5) An amount which apart from this sub-paragraph would be payable to Northern Powergrid in respect of works by virtue of sub-paragraph (1), is to be reduced by the amount which represents that benefit 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 Northern Powergrid any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course.

141

(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 136(2), 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, 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) make reasonable compensation to Northern Powergrid for any other expenses, loss, damages, penalty or costs incurred by Northern Powergrid,

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

(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of 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 140 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 140 for claims reasonably incurred by Northern Powergrid.

142

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.

143

Without prejudice to the generality of the protective provisions in this Part of this Schedule, Northern Powergrid must from time to time submit to the undertaker estimates of reasonable costs and expenses it expects to incur in relation to the implementation of any diversions or relocation of apparatus contemplated under this Part of this Schedule including without limitation—

(a) in assessing and preparing a design for its apparatus to address and accommodate the proposals of the undertaker under paragraph 139;

(b) costs incurred in fulfilling its obligations in paragraph 136(3);

(c) fees incurred in settling and completing and registering any documentation to secure rights for its diverted or relocated apparatus; and

(d) costs and expenses of contractors required to undertake any works for which Northern Powergrid is responsible and of purchasing the necessary cabling and associated apparatus,

provided that Northern Powergrid must use reasonable endeavours to minimise to a proper and reasonable level any charges, costs, fees and expenses to the extent that they are incurred.

144

Northern Powergrid and the undertaker must use their reasonable endeavours to agree the amount of any estimates submitted by Northern Powergrid under paragraph 142 within 15 working days following receipt of such estimates by the undertaker. The undertaker must confirm its agreement to the amount of such estimates in writing and must not unreasonably withhold or delay such agreement. If the parties are unable to agree the amount of an estimate, it will be dealt with in accordance with paragraph 148.

145

Work in relation to which an estimate is submitted must not be commenced by Northern Powergrid until that estimate is agreed with the undertaker in writing and a purchase order up to the value of the approved estimate has been issued by the undertaker to Northern Powergrid and an easement for the routes of the apparatus has been granted to Northern Powergrid pursuant to paragraph 136(1) for the benefit of its statutory undertaking.

146

If Northern Powergrid at any time becomes aware that an estimate agreed is likely to be exceeded, it must forthwith notify the undertaker and must submit a revised estimate of the relevant costs and expenses to the undertaker for agreement.

147

Northern Powergrid may from time to time and at least monthly from the date of this Order issue to the undertaker invoices for costs and expenses incurred up to the date of the relevant invoice, for the amount of the relevant estimate agreed. Invoices issued to the undertaker for payment must—

(a) specify the approved purchase order number; and

(b) be supported by timesheets and narratives that demonstrate that the work invoiced has been completed in accordance with the agreed estimate.

148

The undertaker is not responsible for meeting costs or expenses in excess of an agreed estimate, other than where agreed under paragraph 145 above or determined in accordance with paragraph 148.

149

Any difference under the provisions of this Part of this Schedule, unless otherwise provided for, is to be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by an independent electrical engineer by or on behalf of the President for the time being of the Institute of Engineering and Technology.

150

Prior to carrying out any works within the Order limits Northern Powergrid must give written notice of the proposed works to the undertaker, such notice to include full details of the location of the proposed works, their anticipated duration, access arrangements, depths of the works, and any other information that may impact upon the works consented by the Order.

PART 13 — FOR THE PROTECTION OF NPL WASTE MANAGEMENT LIMITED

151

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

152

In this Part of this Schedule—

“NPL” means NPL Waste Management Limited (Company number 06112535) whose registered address is One St Peter’s Square, Manchester M2 3DE and any successor in title or function to the NPL access shafts;

“NPL access shafts” means the shafts within plots 4 and 5 in the Order limits owned and operated by NPL for the purposes of accessing the Billingham Anhydrite Mine; and

“works details” means—plans and sections;details of the proposed method of working and timing of execution of works;details of vehicle access routes for construction and operational traffic; andany further particulars provided in response to a request under paragraph 152.

153

Before commencing any part of the authorised development which would have an effect on the operation or maintenance of the NPL access shafts or access to them, the undertaker must submit to NPL the works details for the proposed works and such further particulars as NPL may, within 28 days from the day on which the works details are submitted under this paragraph, reasonably require.

154

No works comprising any part of the authorised development which would have an effect on the operation or maintenance of the NPL access shafts or access to them are to be commenced until the works details in respect of those works submitted under paragraph 152 have been approved by NPL.

155

Any approval of NPL required under paragraph 153 must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as NPL may require to be made for NPL to have reasonable access with or without vehicles to inspect, repair, replace and maintain and ensure the continuing safety and operation of the NPL access shafts.

156

(1) The authorised development must be carried out in accordance with the works details approved under paragraph 153 and any requirements imposed on the approval under paragraph 154.

(2) Where there has been a reference to an arbitrator in accordance with paragraph 157 and the arbitrator gives approval for the works details, the authorised development must be carried out in accordance with the approval and conditions contained in the decision of the arbitrator under paragraph 157.

Indemnity

157

(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 152, any damage is caused to the NPL access shafts or property of NPL, or there is any interruption in any service provided, or in the supply of any goods, by NPL, the undertaker must—

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

(b) make reasonable compensation to NPL for any other expenses, loss, damages, penalty or costs incurred by NPL, by reason or in consequence of any such damage or interruption.

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

(3) NPL 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) NPL 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 156 applies. If requested to do so by the undertaker, NPL 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 156 for claims reasonably incurred by NPL.

Arbitration

158

Any difference or dispute arising between the undertaker and NPL under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and NPL, be referred to and settled by arbitration in accordance with article 47 (arbitration).

PART 14 — FOR THE PROTECTION OF PD TEESPORT LIMITED

159

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

160

In this Part of this Schedule—

“PD Teesport” means PD Teesport Limited (company number 02636007), whose registered address is 17-27 Queen’s Square, Middlesborough, TS2 1AH and any successor in title or function to the PD Teesport operations;

“the PD Teesport operations” means the port operations or property (including all freehold, leasehold, easements, wayleaves, licences and other rights) vested in PD Teesport (or any related company whose assets or operations are impacted by the construction, maintenance and operation of the authorised development), including access to and from those operations or activities via Tees Dock Road and access, use and occupation of the Redcar Bulk Terminal as well as access over South Gare Road and Seal Sands Road;

“road user(s)” means any person who has a—right to use Seal Sands Road or South Gare Road (including parties authorised by PD Teesport);need to use Seal Sands Road or South Gare Road to access property or facilities owned, operated or occupied by them; andneed to use Seal Sands Road or South Gare Road in connection with undertaking their business operations or statutory functions;

“Seal Sands Road” means any part of Seal Sands Road within the Order limits;

“South Gare Road” means any part of South Gare Road within the Order limits; and

“works details” means—plans and sections;details of the proposed method of working and timing of execution of works;details of vehicle access routes for construction and operational traffic; andany further particulars provided in response to a request under paragraph 164.

Regulation of powers

161

The undertaker must not exercise the powers granted under this Order so as to hinder or prevent the operation or maintenance of the PD Teesport operations or access to them without the prior written consent of PD Teesport.

162

Any approval of PD Teesport required under paragraph 160 must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as PD Teesport may require to be made in relation to—

(a) the continuing safety, or operational activity of the PD Teesport operations;

(b) ensuring that there is no commercial loss to PD Teesport; or

(c) the requirement for PD Teesport (including its employees, agents, servants and contractors), any, tenants, licencees and occupiers on its land to have reasonable access to, occupation and use of the PD Teesport operations at all times.

Regulation of powers in relation to Seal Sands Road

163

The undertaker must not exercise the powers granted under this Order so as to hinder or prevent use of Seal Sands Road by PD Teesport and road users, such access to be along the existing highway route at Seal Sands Road.

Regulation of powers in relation to South Gare Road

164

The undertaker must not exercise the powers granted under this Order so as to hinder or prevent access via South Gare Road to South Gare by PD Teesport and road users, such access to be either along the existing highway route at South Gare Road, or such diversionary route as the undertaker may provide (provided that such alternative route is equally commodious).

165

Before commencing any part of the authorised development which may have an effect on the operation or maintenance of the PD Teesport operations or access to them, the undertaker must submit to PD Teesport the works details for the proposed works and such further particulars as PD Teesport may, within 28 days from the day on which the works details are submitted under this paragraph, reasonably require.

166

No works comprising any part of the authorised development which may have an effect on the operation or maintenance of the PD Teesport operations or access to them are to be commenced until the works details in respect of those works submitted under paragraph 164 have been approved by PD Teesport.

167

Any approval of PD Teesport required under paragraph 165 must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as PD Teesport may require to be made for—

(a) the continuing safety, operational activity or business interests of the PD Teesport operations; and

(b) the requirement for PD Teesport to have uninterrupted and unimpeded access (including river access) to PD Teesport operations at all times.

168

The authorised development must be carried out in accordance with the works details approved under paragraph 165 and any requirements imposed on the approval under paragraph 166.

169

Where there has been a reference to an arbitrator in accordance with paragraph 170 and the arbitrator gives approval for the works details, the authorised development must be carried out in accordance with the approval and conditions contained in the decision of the arbitrator under paragraph 170.

Indemnity

170

(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 164, any damage is caused to the PD Teesport operations, or there is any interruption in any service provided, or in the supply of any goods, by PD Teesport, the undertaker must—

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

(b) indemnify PD Teesport for any other expenses, loss (including loss of profits), damages, penalty, claims, investigations, demands, charges, actions, notices, proceedings, orders, awards, judgments, damages, other liabilities and expenses (including legal fees, expenses and fines) or costs incurred of any kind or nature whatsoever by them, by reason or in consequence of any such damage or interruption.

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

(3) PD Teesport 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) If the undertaker becomes responsible for a claim or demand pursuant to sub-paragraph (3) it must—

(a) keep PD Teesport fully informed of the developments and material elements of the proceedings;

(b) take account of the views of PD Teesport before taking any action in relation to the claim;

(c) not bring the name of the PD Teesport on any related company into disrepute and act in an appropriate and professional manner when disputing any claim; and

(d) not pay or settle such claims without the prior written consent of PD Teesport, such consent not to be unreasonably withheld or delayed.

(5) PD Teesport 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 169 applies. If requested to do so by the undertaker, PD Teesport 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 169 for claims reasonably incurred by PD Teesport.

Arbitration

171

Any difference or dispute arising between the undertaker and PD Teesport under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and PD Teesport, be referred to and settled by arbitration in accordance with article 47 (arbitration).

PART 15 — FOR THE PROTECTION OF REDCAR BULK TERMINAL LIMITED

172

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

173

In this Part of this Schedule—

“apparatus” means any mains, pipes, cables or other apparatus within the Order limits which provide water, electricity or electronic communications to the RBT operations together with any replacement of that apparatus pursuant to the Order;

“alternative access” means appropriate alternative road or rail access which enables RBT to access the RBT operations and RBT site in a manner no less efficiently than previously by means of RBT’s existing road or rail accesses;

“alternative apparatus” means appropriate alternative apparatus which enables water, electricity and electronic communications supply to be provided to the RBT operations in a manner no less efficiently than previously by existing apparatus;

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The Net Zero Teesside Order 2024

Arbitration

87

PART 8 — FOR THE PROTECTION OF EXOLUM SEAL SANDS LTD AND EXOLUM RIVERSIDE LTD

88

89

Consent of restricted works under this Part

90

Prohibition of acquisition and interference

91

Cathodic protection testing

92

Expenses

93

Indemnity

94

Arbitration

95

PART 9 — FOR THE PROTECTION OF INEOS NITRILES (UK) LIMITED

96

97

Consent under this Part

98

99

100

Compliance with requirements, etc. applying to the INEOS operations

101

Indemnity

102

Arbitration

103

PART 10 — FOR THE PROTECTION OF MARLOW FOODS LIMITED

104

105

Regulation of powers

106

107

Co-operation

108

Indemnity

109

Arbitration

110

PART 11 — FOR THE PROTECTION OF RAILWAY INTERESTS

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

PART 12 — FOR THE PROTECTION OF NORTHERN POWERGRID (NORTHEAST) PLC

132

133

134

135

136

137

138

139

140

141

142

143

144

145