The Net Zero Teesside Order 2024

• (3) The undertaker (or any contractor carrying out such works on behalf of the undertaker) must maintain insurance in relation to the authorised development affecting SABIC during the construction, operation, maintenance, repair and decommissioning of the authorised development in the terms and at the level of cover as may be agreed in writing between the undertaker and SABIC.

207

• (1) If SABIC has a dispute about the proposed insurance (including the terms or level of cover) to be provided under paragraph 205—

• (a) SABIC may refer the matter to arbitration under paragraph 211; and

• (b) the undertaker may put in place an insurance policy it considers to be appropriate and continue with the authorised development at its own risk whilst the determination under paragraph 211 is complete, following which the undertaker must adjust the insurance policy if necessary to accord with the determination.

Costs

208

• (1) The undertaker must repay to SABIC all reasonable fees, costs, charges and expenses reasonably incurred by SABIC in relation to these protective provisions in respect of—

• (a) authorisation of survey details submitted by the undertaker under paragraph 188(3), authorisation of works details submitted by the undertaker under paragraph 189 and the imposition of conditions under paragraph 191;

• (b) the engagement of an engineer and their observation of the authorised works affecting the pipelines and the provision of safety advice under paragraph 193;

• (c) responding to the consultation on piling under paragraph 195;

• (d) considering the effectiveness of any compacting which has taken place under paragraph 197, including considering and evaluating compacting testing results and the details of further compaction works under that paragraph;

• (e) the repair and testing of a pipeline or protected crossing under paragraph 199;

• (f) considering and responding to consultation in relation to the construction access plan under paragraph 202 and providing details of their programme for major works to the undertaker under paragraph 203; and

• (g) considering the adequacy of the terms and level of cover of any insurance policy proposed or put in place by the undertaker under paragraph 205,

including the reasonable costs incurred by SABIC in engaging and retaining such external experts, consultants and contractors as may be reasonably necessary to allow SABIC to carry out its functions under these protective provisions.

• (2) Subject to sub-paragraphs (3) and (4), if by reason or in consequence of the construction of any of the works referred to in paragraph 189, any damage is caused to the affected assets or property of SABIC, or there is any interruption in any service provided, or in the supply of any goods, by SABIC, the undertaker must—

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

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

• (3) Nothing in sub-paragraphs (1) or (2) 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 SABIC, its officers, employees, servants, contractors or agents.

• (4) SABIC must give the undertaker reasonable notice of any claim or demand under sub-paragraph (2) and no settlement or compromise of such a claim or demand is to be made without the prior 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.

• (5) SABIC 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 under this Part 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 under this Part.

• (6) In the assessment of any sums payable to SABIC under this Part 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, SABIC 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 or increasing the sums so payable.

• (7) SABIC must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If requested to do so by the undertaker, SABIC must provide an explanation of how the claim has been minimised or details to substantiate any cost or compensation claimed pursuant to sub-paragraph (2). The undertaker shall only be liable under this paragraph for claims reasonably incurred by SABIC.

Further protection in relation to the exercise of powers under the Order

209

The undertaker must give written notice to SABIC of the terms and level of cover of any guarantee or alternative form of security put in place under article 48 (funding for compulsory acquisition compensation) and any such notice must be given no later than 28 days before any such guarantee or alternative form of security is put in place specifying the date when the guarantee or alternative form of security comes into force.

210

The undertaker, must when requested to do so by SABIC, provide it with a complete set of the documents submitted to and certified by the Secretary of State in accordance with article 45 (certification of plans etc.) in electronic form.

211

Prior to the commencement of the authorised development the undertaker must prepare an emergency response plan following consultation with the local emergency services and provide a copy of that plan to SABIC.

Arbitration

212

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

PART 17 — FOR THE PROTECTION OF THE SEMBCORP PROTECTION CORRIDOR

Extent of this Part

213

• (1) The provisions of this Part have effect for the benefit of owners and operators in the Sembcorp Protection Corridor, owners and operators in the Wilton Complex and Sembcorp unless otherwise agreed in writing between the undertaker and Sembcorp.

• (2) Except to the extent as may be otherwise agreed in writing between the undertaker and Sembcorp, where the benefit of this Order is transferred or granted to another person under article 8 (consent to transfer benefit of this Order)—

• (a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between Sembcorp and the transferee or grantee (as the case may be); and

• (b) written notice of the transfer or grant must be given to Sembcorp on or before the date of that transfer or grant.

• (3) Sub-paragraph (2) applies to any agreement—

• (a) which states that it is “entered into for the purposes of the Sembcorp Protective Provisions”; and

• (b) whether entered into before or after the making of this Order.

• (4) Article 44 (procedure in relation to certain approvals) paragraphs (4) and (5) do not apply to any consent, agreement or approval required or contemplated by any of the provisions of this Part.

Interpretation of this Part

214

In this Part of this Schedule—

• “alternative apparatus” means alternative apparatus adequate to serve the owner of the apparatus in question in a manner no less efficient than previously;

• “apparatus” means mains, pipes, cables, sewers, drains, ditches, watercourses or other apparatus and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

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

• “operator” means any person who is responsible for the construction, operation, use, inspection, adjustment, alteration, repair, maintenance, renewal, removal or replacement of any apparatus or alternative apparatus in the Sembcorp Protection Corridor or has rights to the use of such apparatus or alternative apparatus, but who is not an owner in relation to the Sembcorp Protection Corridor or the Wilton Complex and is not a third party owner or operator;

• “owner” means—in relation to the Sembcorp Protection Corridor, any person—with an interest in the Sembcorp Protection Corridor;with rights in, on, under or over the Sembcorp Protection Corridor; orwith apparatus in, on or under the Sembcorp Protection Corridor; orin relation to the Wilton Complex, any owner (as defined in article 2(1) of this Order) or occupier in the Wilton Complex;but who is not a third party owner or operator;

• “Sembcorp” means Sembcorp Utilities (UK) Limited, with Company Registration Number 04636301, whose registered office is at Sembcorp UK Headquarters, Wilton International, Middlesbrough, Cleveland, TS90 8WS and any successor in title or function to the Sembcorp operations in, under or over the Sembcorp Protection Corridor;

• “the Sembcorp operations” means—the activities and functions carried on by Sembcorp in the Sembcorp Protection Corridor (including in relation to any access routes and laydown spaces associated with them or it);the number 2 river tunnel between Bran Sands and North Tees crossing the Order limits under the River Tees (together with associated headhouses) operated by Sembcorp; andother pipes and apparatus (including access routes and laydown spaces associated with such pipes and apparatus) operated—by Sembcorp; orby any owner or operator within the Sembcorp Protection Corridor; orfor the benefit or on behalf of any owner or operator in the Wilton Complex;

• “Sembcorp Protection Corridor” means the area edged black and shaded yellow on the Sembcorp Protection Corridor protective provisions supporting plans;

• “Sembcorp Protection Corridor protective provisions supporting plans” means the plans which are certified as the Sembcorp Protection Corridor protective provisions supporting plans by the Secretary of State under article 45 (certification of plans etc) for the purposes of this Order;

• “third party owner or operator” means an owner or operator of apparatus the subject of the third party protective provisions;

• “third party protective provisions” means the protective provisions in Parts 1 to 16 or 18 to 28 of this Schedule;

• “Wilton Complex” means the industrial and manufacturing plant shown edged blue on the Sembcorp Protection Corridor protective provisions supporting plans; 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 214.

Separate approvals by third party owners or operators

215

• (1) If the approval of a third party owner or operator is required, sought or obtained under the third party protective provisions on any matter to which this Part of this Schedule relates, this does not remove any obligation on the undertaker to seek consent from Sembcorp pursuant to this Part in respect of that matter.

• (2) Where the undertaker seeks consent for works details from a third party owner or operator pursuant to the third party protective provisions that also require consent from Sembcorp under this Part, the undertaker must provide Sembcorp with—

• (a) the same information provided to the third party owner or operator at the same time; and

• (b) a copy of any approval from the third party owner or operator given pursuant to the third party protective provisions

Removal of apparatus

216

• (1) If, in exercise of the powers conferred by this Order, the undertaker acquires any estate, interest or right in any land in which any apparatus is placed, the apparatus must not be removed, and any right to maintain the apparatus in the land must not be extinguished, until alternative apparatus has been constructed and is in operation and equivalent rights for the alternative apparatus have been granted to Sembcorp and, where relevant, the owner or operator of the apparatus.

• (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 the land, it must give to the owner or operator in question and Sembcorp written notice of the 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 the undertaker must afford to the owner or operator and Sembcorp the necessary facilities and rights for the construction, adjustment, alteration, use, repair, maintenance, renewal, inspection, removal and replacement of alternative apparatus in other land of the undertaker and subsequently for the maintenance of the apparatus.

• (3) Any alternative apparatus to be constructed in land of the undertaker under this Part must be constructed in such manner and in such line or situation as may be agreed between Sembcorp and the undertaker or in default of agreement settled by an arbitrator appointed under paragraph 226.

• (4) The owner or operator in question must, after the alternative apparatus to be provided or constructed has been agreed or determined by an arbitrator under paragraph 226, and after the grant to the owner or operator of any such facilities and rights as are referred to in sub-paragraph (2) and after the expiration of any applicable notice period in respect of the works under the Pipelines Safety Regulations 1996, 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 this Part subject to any reasonable directions given to or requirements imposed on that owner or operator by Sembcorp.

• (5) Notwithstanding sub-paragraph (4), if the undertaker gives notice in writing to the owner or operator in question and Sembcorp that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the owner or operator, must be executed by the undertaker without unnecessary delay to an appropriate standard and in a safe manner.

• (6) If works are executed by the undertaker in accordance with sub-paragraph (5), the owner or operator of the apparatus and Sembcorp must be notified of the timing of the works and afforded facilities to watch, monitor and inspect the execution of the works.

• (7) Nothing in sub-paragraph (5) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 3,000 millimetres of the apparatus, without the written agreement of Sembcorp, such agreement not to be unreasonably withheld.

Alternative apparatus

217

• (1) Where, in accordance with this Part, the undertaker affords to an owner or operator and Sembcorp 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 on such terms and conditions as may be agreed between the undertaker and Sembcorp or in default of agreement determined by arbitration under paragraph 226, such terms to be no less favourable as a whole than the terms and conditions which applied to the apparatus to be removed.

• (2) In settling the terms and conditions in respect of alternative apparatus to be constructed in or along the authorised development, the arbitrator must—

• (a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus that may be required to prevent interference with any proposed works of the undertaker; and

• (b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or along the authorised development for which the alternative apparatus is to be substituted.

• (3) 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 materially worse than the rights enjoyed by them in respect of the apparatus to be removed, the arbitrator must make such provision for the payment of compensation by the undertaker to the owner or operator and Sembcorp as appears to the arbitrator to be reasonable, having regard to all the circumstances of the particular case.

Consent under this Part in connection with Sembcorp operations

218

Before commencing any part of the authorised development which would or may have an effect on the operation or maintenance of the Sembcorp operations or access to them, and in all cases where such works are within 3,000 millimetres of the Sembcorp Protection Corridor, the undertaker must submit to Sembcorp the works details for the proposed works and such further particulars as Sembcorp may, within 30 days from the day on which the works details are submitted under this paragraph, reasonably require.

219

The works referred to in paragraph 217 must not be commenced until the works details in respect of those works submitted under that paragraph have been approved by Sembcorp.

220

Any approval of Sembcorp required under paragraph 218 must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as Sembcorp may require to be made for—

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

• (b) the requirement for Sembcorp to have reasonable access to the Sembcorp operations at all times.

221

• (1) The authorised development must be carried out in accordance with the works details approved under paragraph 218 and any requirements imposed on the approval under paragraph 219.

• (2) Where there has been a reference to an arbitrator in accordance with paragraph 226 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 226.

Insurance

222

• (1) Before carrying out any works forming part of the authorised development on any part of the Sembcorp Protection Corridor, the undertaker (or any contractor carrying out such works on behalf of the undertaker) must put in place a policy of insurance with a reputable insurer for a sum not less than such level as may be agreed in writing between the undertaker and Sembcorp, and evidence of that insurance must be provided to Sembcorp on request.

• (2) Not less than 90 days before carrying out any works forming part of the authorised development on any part of the Sembcorp Protection Corridor or before proposing to change the terms of the insurance policy, the undertaker must notify Sembcorp of details of the terms or cover of the insurance policy that it proposes to put in place including the proposed level of the cover to be provided.

• (3) The undertaker (or any contractor carrying out such works on behalf of the undertaker) must maintain insurance in relation to works or the use of the authorised development affecting the Sembcorp Protection Corridor during the operation of the authorised development at such level as may be agreed in writing between the undertaker and Sembcorp.

• (4) Any dispute between the undertaker and Sembcorp regarding the terms, cover or insured level of the insurance policy shall be resolved in accordance with paragraph 226.

Expenses

223

• (1) Subject to the provisions of this paragraph, the undertaker must pay to the owner or operator in question and Sembcorp (as the case may be) the reasonable expenses incurred by them under this Part in connection with—

• (a) the inspection, removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus or alternative apparatus under any provision of this Part;

• (b) the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus in consequence of the exercise by the undertaker of any power under this Order;

• (c) the survey of any land, apparatus or works, the watching, inspection, superintendence and monitoring of works or the installation or removal of any temporary works in consequence of the exercise by the undertaker of any power under this Order;

• (d) the design, project management, supervision and implementation of works;

• (e) the negotiation and grant of necessary rights for the construction, adjustment, alteration, use, repair, maintenance, renewal, inspection, removal and replacement of alternative apparatus;

• (f) monitoring the effectiveness of any requirements referred to in paragraph 219and the installation of any additional protective measures reasonably required in order to deal with any deficiency in the expected level of protection afforded by those requirements; and

• (g) any other work or thing reasonably required in consequence of the exercise by the undertaker of any power under this Order or by the service by the undertaker of any notice, plan, section or description,

within a reasonable time of being notified by the person in question that it has incurred such expenses, such notification to be provided by the owner or operator or Sembcorp (as the case may be).

• (2) Where reasonable and practicable, the person to whom the payment is to be made under this paragraph must notify the undertaker of any anticipated expense as outlined in sub-paragraph (1) and provide an estimate of such costs prior to incurring such expense.

• (3) In advance of any payment under sub-paragraph (1) above being made and where reasonably requested by the undertaker, the person to whom the payment is to be made under this paragraph must provide to the undertaker such reasonable evidence of the costs incurred as the undertaker may reasonably request.

• (4) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under this Part, that value being calculated after removal.

• (5) If in accordance with this Part—

• (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 an arbitrator under paragraph 226 to be necessary, then, if such placing involves cost in the construction of works under this Part exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the owner or operator in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

• (6) In determining whether the placing of apparatus of a type or capacity or of particular dimensions or the placing of apparatus at a particular depth, as the case may be, are necessary under sub-paragraph (5), regard must be had to current health and safety requirements, current design standards, relevant good practice and process design specification.

• (7) For the purposes of sub-paragraph (5)—

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

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

• (8) An amount which apart from this sub-paragraph would be payable to a person in respect of works by virtue of sub-paragraph (1) must, if it confers a financial benefit on that person by deferment of the time for renewal of the apparatus in the ordinary course of that person’s business practice, be reduced by the amount that represents that benefit.

Indemnity

224

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of the authorised development, including without limitation any of the works referred to in paragraph 215 (other than apparatus, the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or any subsidence resulting from any of these works, any damage is caused to the Sembcorp operations or property of an owner or operator or Sembcorp, or there is any interruption in any service provided, or in the supply of any goods, to or by an owner or operator or Sembcorp, or Sembcorp becomes liable to pay any amount to any third party, the undertaker must—

• (a) bear and pay the cost reasonably incurred by the owner or operator in question or Sembcorp (as the case may be) in making good such damage or restoring the service, supply and/or operations; and

• (b) make reasonable compensation to the owner or operator in question or Sembcorp or to any other person whose supply or operations are affected by the damage or interruption (as the case may be, and in all cases excluding third party owners or operators) for any other expenses, loss, damages, penalty or costs incurred by that person, 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 the person (or its officers, employees, servants, contractors or agents) who would but for this sub-paragraph be the beneficiary of the indemnification provisions in the said sub-paragraph (1).

• (3) The person to whom the liability is owed under sub-paragraph (1) 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) The person to whom the liability is owed under sub-paragraph (1) 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 223 applies where it is within its reasonable ability and control so to do. If requested to do so by the undertaker, the person 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 223 for claims reasonably incurred by the owner or operator in question or by Sembcorp (as the case may be).

Participation in community groups

225

• (1) Before undertaking any works or exercising any powers in this Order relating to or affecting the Sembcorp operations or the Sembcorp Protection Corridor, the undertaker must participate in any relevant consultation groups established or co-ordinated by Sembcorp.

• (2) Before undertaking any construction works affecting the Sembcorp operations or the Sembcorp Protection Corridor, where any of these might reasonably be expected to give rise to significantly perceptible effects beyond the Order limits in terms of—

• (a) construction noise and vibration management;

• (b) air quality, including dust emissions;

• (c) waste management;

• (d) traffic management and materials storage on site;

• (e) surface water and groundwater management; or

• (f) artificial light emissions,

the undertaker must participate in any relevant community environmental liaison group that may be established or co-ordinated by Sembcorp with local residents.

• (3) The undertaker must co-operate with Sembcorp to respond promptly to any complaints raised in relation to the construction or operation of the authorised development or the traffic associated with the authorised development.

• (4) The undertaker’s obligations in sub-paragraphs (1) and (2) are subject to Sembcorp providing reasonable notice to them of the existence of a relevant consultation group or a relevant community environmental liaison group and reasonable notice of the arrangements for meetings of those groups.

Notice of start and completion of commissioning

226

• (1) Notice of the intended start of commissioning of the authorised development must be given to Sembcorp no later than fourteen days prior to the date that commissioning is started.

• (2) Notice of the intended date of final commissioning of each of Work Nos. 1 and 6 must be given to Sembcorp no later than fourteen days prior to the date of final commissioning.

Arbitration

227

Any difference or dispute arising between the undertaker and an owner or operator or Sembcorp (as the case may be) under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and that person, be referred to and settled by arbitration in accordance with article 47 (arbitration).

Additional Agreement

228

For the protection of Sembcorp, the Sembcorp Operations, the Sembcorp Protection Corridor and the Wilton Complex, the undertaker and Sembcorp have entered into an agreement dated 9 December 2022 containing provisions for the protection and benefit of Sembcorp, the Sembcorp Operations, the Sembcorp Protection Corridor and the Wilton Complex in relation to the exercise operation and use of the authorised development by the undertaker in addition to and which differ from the provisions for the protection of the Sembcorp Protection Corridor set out in this Part.

PART 18 — FOR THE PROTECTION OF ANGLO AMERICAN

Interpretation

229

For the protection of Anglo American the following provisions have effect, unless otherwise agreed in writing between the Parties.

230

The following definitions apply in this Part of this Schedule—

• “AA Easements” means the Deed of Grant entered into by Redcar Bulk Terminal Limited and York Potash Processing & Ports Limited dated 6 July 2018 and the Deed of Grant entered into by Redcar Bulk Terminal Limited, York Potash Limited and York Potash Processing & Ports Limited dated 26 June 2019;

• “Anglo American Specified Works” means so much of the Woodsmith Project as is within the Shared Area;

• “Anglo American” means the parties with the benefit of the York Potash Order (being Anglo American Woodsmith Limited and Anglo American Crop Nutrients Limited) and Anglo American Woodsmith (Teesside) Limited;

• “Anglo American Apparatus” means the pipeline, cables, structures which are or are to be owned, occupied or maintained by Anglo American within the Shared Area;

• “EA Permit” means the environmental permit for the landfill site at Bran Sands given permit number EPR/FB3601GS (formerly Waste Management Licence EAWML60092);

• “expert” means a person appointed pursuant to paragraph 241(b);

• “NWL Facility” means the Northumbrian Water Limited Bran Sands Wastewater Treatment Plant;

• “NZT Apparatus” means the pipeline, cables, structures to be owned, occupied or maintained by the undertaker within the Shared Area;

• “Parties” means the undertaker and Anglo American;

• “Plans” includes sections, drawings, specifications design data, software, 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 the shared area;

• “Property Documents” means any leases, licences or other documents by virtue of which Anglo American has an interest in, on or over land;

• “Respective Projects” means the authorised development and the Woodsmith Project;

• “Secretary of State” means the Secretary of State for Energy Security and Net Zero or any successor in function;

• “Shared Area” means the land coloured blue on the Shared Area Plan;

• “Shared Area 1” means the land comprising plots 222 and 223 on the land plans;

• “Shared Area 2” means the land comprising plots 252, 252a, 253, 253a, 255, 263, 278, 280, 281, 284, 285, 286, 294, 301, 302, 303, 314, 315, 316, 317, 318, 319, 320, 321, 322, 324, 325, 328, 329, 330, 331, 332, 333, 343 and 541 on the land plans;

• “Shared Area 3” means the land comprising plots 332, 343, 345 and 347 on the land plans;

• “Shared Area 4” means the land comprising plots 384, 397, 395, 401 and 405 on the land plans;

• “Shared Area 5” means the land comprising plots 417, 418, 427, 432, 436, 439, 543, 545, 546, 547 and 548 on the land plans;

• “Shared Area 6” means the land comprising plots 540a and 540d on the land plans;

• “Shared Area Plan” means the plan which is certified as the Net Zero Teesside Anglo American Shared Area Plan by the Secretary of State under article 45 (certification of plans etc.) for the purposes of this Order;

• “Specified Works” means so much of the authorised development as is within the Shared Area;

• “STDC Agreement” means a Deed of Licence and Option entered into between South Tees Development Corporation, York Potash Processing and Ports Limited and Sirius Minerals PLC dated 9 January 2019;

• “Woodsmith Project” means the construction, operation, or maintenance of development authorised by the York Potash Order or by any planning permission or development consent order issued whether before or after the date of this Order as part of the Woodsmith Project such development comprising—an underground mine at Sneatonthorpe for the mining of polyhalite;a Mineral Transport System being a tunnel from the mine to Teesside;a Material Handling Facility at Wilton International, Teesside; andHarbour Facilities at Teesside including an overland conveyor between the Material Handling Facility and the Redcar Bulk Terminal and the harbour authorised by the York Potash Order and planning permissions; and

• “York Potash Order” means the York Potash Harbour Facilities Order 2016.

Consent to works in the shared area

231

• (1) Where the consent or agreement of Anglo American is required under the provisions of this Part of this Schedule the undertaker must give at least 21 days written notice to Anglo American of the request for such consent or agreement and in such notice must specify the works or matter for which consent or agreement is to be requested and the Plans that will be provided with the request which must identify—

• (a) the land that will or may be affected;

• (b) which Works Nos. from the Order any powers sought to be used or works to be carried out relate to;

• (c) which of the entities which make up the undertaker is to carry out the works and the identity of the contractors carrying out the work on behalf of that entity;

• (d) the proposed programme for the power to be used or works to be carried out; and

• (e) the named point of contact for the undertaker for discussions in relation to the information supplied and the consenting process.

• (2) Anglo American must notify the undertaker within 14 days of the receipt of the written notice under sub-paragraph (1) of—

• (a) any information it reasonably requires to be provided in addition to that proposed to be supplied by the undertaker under sub-paragraph (1);

• (b) any particular circumstances with regard to the construction or operation of the Woodsmith Project it requires to be taken into account;

• (c) the named point of contact for Anglo American for discussions in relation to the information supplied and the consenting process; and

• (d) the specific person who will be responsible for confirming or refusing the consent or agreement.

• (3) Any request for consent under paragraphs 232(1), 233(1) and 233(2) must be accompanied by the information referred to in sub-paragraph (1) as amended or expanded in response to sub-paragraph (2).

• (4) Subject to sub-paragraph (5), where conditions are included in any consent granted by Anglo American pursuant to this Part of this Schedule, the undertaker must comply with the conditions if it chooses to implement or rely on the consent, unless the conditions are waived or varied in writing by Anglo American.

• (5) Wherever in this Part of this Schedule provision is made with respect to the agreement approval or consent of Anglo American, that approval or consent must be in writing and subject to such reasonable terms and conditions as Anglo American may require including conditions requiring protective works to be carried out, but must not be unreasonably refused or delayed and for the purposes of these provisions it will be deemed to be reasonable for any consent to be refused if it would—

• (a) compromise the safety and operational viability of the Woodsmith Project;

• (b) prevent the ability of Anglo American to have uninterrupted access to the Woodsmith Project;

• (c) cause a breach of the obligations under, or conditions attached to, the EA Permit or render compliance with the obligations under, or conditions attached to, the EA Permit—

• (i) more difficult; and/or

• (ii) more expensive;

• (d) make regulatory compliance more difficult or expensive; and/or

• (e) cause a breach of, or prevent compliance with, any obligations to other parties contained in any Property Documents,

provided that before Anglo American can validly refuse consent for any of the reasons set out in sub-paragraphs (a) to (e) it must first give the undertaker seven days’ notice of such intention and consider any representations made in respect of such refusal by the undertaker to Anglo American within that seven day period.

• (6) The seven day period referred to in the proviso to sub-paragraph (5) must be added to the period of time within which any request for agreement, approval or consent is required to be responded to pursuant to the provisions of this Part of this Schedule.

• (7) In the event that—

• (a) the undertaker considers that Anglo American has unreasonably withheld its authorisation or agreement under paragraph 232(1), 233(1), and/or 233(2); or

• (b) the undertaker considers that Anglo American has given its authorisation under paragraph 232(1), 233(1), and/or 233(2) subject to unreasonable conditions,

the undertaker may refer the matter to dispute resolution under paragraph 241.

• (8) Any notice under sub-paragraph (1) and any request for approval or consent under the provisions of this Part of this Schedule must be sent to Anglo American by recorded delivery and addressed to—

• (a) the Head of Legal and the Head of Environment Permitting and Sustainable Development at Anglo American Crop Nutrients Limited at Resolution House, Lake View, Scarborough YO11 3ZB; and

• (b) the Company Secretary, Anglo American Crop Nutrients Limited at the registered office for the time being of that company.

• (9) In the event that Anglo American does not respond in writing to a request for approval or consent or agreement within 28 days of its receipt of the postal request then the undertaker may serve upon Anglo American written notice requiring Anglo American to give their decision within a further 28 days beginning with the date upon which Anglo American received written notice from the undertaker and, subject to compliance with sub-paragraph (10), if by the expiry of the further 28 day period Anglo American has failed to notify the undertaker of its decision Anglo American is deemed to have given its consent, approval or agreement without any terms or conditions.

• (10) Any further notice given by the undertaker under sub-paragraph (9) must include a written statement that the provisions of sub-paragraph (9) apply to the relevant approval or consent or agreement.

Co-operation

232

Insofar as the Anglo American Specified Works are or may be undertaken concurrently with the Specified Works within the Shared Area, the undertaker must—

• (a) co-operate with Anglo American with a view to ensuring—

• (i) the co-ordination of programming of all activities and the carrying out of works within the Shared Area; and

• (ii) that access for the purposes of the construction and operation of the Woodsmith Project is maintained for Anglo American and its ... employees, contractors and sub-contractors; and

• (b) use reasonable endeavours to avoid any conflict arising from the carrying out of the Respective Projects.

Regulation of works within the shared area

233

• (1) The undertaker must not carry out the Specified Works without the prior written consent of Anglo American obtained pursuant to, and in accordance with, the provisions of paragraph 230.

• (2) Where under paragraph 230(5) Anglo American requires any protective works to be carried out either by themselves or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to the reasonable satisfaction of Anglo American.

• (3) Nothing in paragraph 230 or this paragraph 232 precludes the undertaker from submitting at any time or from time to time, but in no case less than 48 days before commencing the execution of any Specified Work, new Plans in respect of that Specified Work in substitution of the Plans previously submitted, and the provisions of this paragraph and paragraph 230 shall apply to the new Plans.

• (4) Where there has been a reference to an expert in accordance with paragraph 240(b) and the expert in determining the dispute gives approval for the works concerned, the Specified Works must be carried out in accordance with that approval and any conditions applied by the decision of the expert under paragraph 242.

• (5) The undertaker must give to Anglo American not less than 28 days’ written notice of its intention to commence the construction of any of the Specified Works and, not more than 14 days after completion of their construction, must give Anglo American written notice of the completion.

• (6) The undertaker is not required to comply with sub-paragraphs (1) to (5) above in a case of emergency, (being actions required directly to prevent possible death or injury) but in that case it must give to Anglo American notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and thereafter must comply with paragraphs 230 and this paragraph 232 in so far as is reasonably practicable in the circumstances.

• (7) The undertaker must at all reasonable times during construction of the Specified Works allow Anglo American and its officers, employees, servants, contractors, and agents access to the Specified Works and all reasonable facilities for inspection of the Specified Works.

• (8) After the purpose of any temporary works has been accomplished, the undertaker must with all reasonable dispatch, or after a reasonable period of notice in writing from Anglo American requiring the undertaker to do so, remove the temporary works in, on, under, over, or within the Shared Area.

• (9) If the undertaker fails to remove the temporary works within a reasonable period of receipt of a notice pursuant to sub-paragraph (8) above, Anglo American may remove the temporary works and may recover the reasonable costs of doing so from the undertaker.

• (10) The undertaker must not exercise the powers conferred by the Order or undertake the Specified Works to prevent or interfere with the access by Anglo American to the Anglo American Specified Works unless first agreed in writing by Anglo American.

• (11) If in consequence of the exercise of the powers conferred by the Order or the carrying out of the Specified Works the access to any of the Anglo American Specified Works is materially obstructed, the undertaker must provide such alternative means of access to the Anglo American Specified Works as will enable Anglo American to construct, maintain or use the Woodsmith Project no less effectively than was possible before the obstruction.

• (12) To ensure its compliance with this paragraph 232, the undertaker must before carrying out any of the Specified Works request up-to-date written confirmation from Anglo American of the location of any part of its then existing or proposed Anglo American Specified Works.

Regulation of powers over the shared area

234

• (1) The undertaker must not exercise the powers granted under the Order so as to hinder or prevent the construction, operation or maintenance of the Anglo American Specified Works without the prior written consent of Anglo American.

• (2) The undertaker must not exercise the powers under any of the articles of the Order specified in sub-paragraph (3) below over or in respect of the Shared Area otherwise than with the prior written consent of Anglo American.

• (3) The articles referred to in sub-paragraph (2) above are—

• (a) article 10 (power to alter layout etc. of streets);

• (b) article 11 (street works);

• (c) article 12 (construction and maintenance of new or altered means of access);

• (d) article 13 (temporary stopping up of streets, public rights of way and access land);

• (e) article 14 (access to works);

• (f) article 16 (traffic regulation);

• (g) article 17 (discharge of water);

• (h) article 18 (felling or lopping of trees and removal of hedgerows);

• (i) article 19 (protective work to buildings);

• (j) article 20 (authority to survey and investigate the land);

• (k) article 22 (compulsory acquisition of land);

• (l) article 23 (power to override easements and other rights);

• (m) article 25 (compulsory acquisition of rights etc.);

• (n) article 26 (private rights);

• (o) article 28 (acquisition of subsoil and airspace only);

• (p) article 30 (rights under or over streets);

• (q) article 31 (temporary use of land for carrying out the authorised development);

• (r) article 32 (temporary use of land for maintaining the authorised development); and

• (s) article 33 (statutory undertakers).

• (4) In the event that Anglo American withholds its consent pursuant to sub-paragraph (2) above it must notify the undertaker in writing of the reasons for withholding such consent and (if applicable) the time period during which such consent will be withheld.

• (5) Regardless of any provision in the Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker must not appropriate or acquire or take permanent or temporary possession of any land interest held by Anglo American in any plots shown on the land plans, or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right in such land.

Constructability Principles

235

• (1) The undertaker (unless otherwise agreed, or in an emergency relating to potential death or serious injury, or where it would render the Specified Works, NZT Apparatus, Anglo American Specified Works or Anglo American Apparatus unsafe, or put the undertaker in breach of its statutory duties) must—

• (a) in respect of all Shared Areas—

• (i) carry out the works in such a way that will not prevent or interfere with the continued construction of the Anglo American Specified Works, or the maintenance or operation of the Anglo American Apparatus unless the action leading to such prevention or interference has the prior written consent of Anglo American;

• (ii) ensure that works carried out to, or placing of NZT Apparatus beneath, roads along which construction or maintenance access is required by Anglo American in respect of any Anglo American Apparatus (including the overland conveyor) will be of adequate specification to bear the loads;

• (iii) prior to the undertaker carrying out any of the Specified Works in any part of any Shared Area, the undertaker must in respect of the Specified Work concerned—

• (aa) submit a construction programme and a construction traffic and access management plan in respect of that area to Anglo American and obtain agreement thereof from Anglo American (noting that a single construction traffic and access management plan may be completed for one or more parts of each Shared Area or more than one Shared Area and may be subject to review if agreed between the Parties) and without prejudice to the generality of sub-paragraph (i) the plans must include such measures and construction practices or processes as are necessary to satisfactorily address the relevant issues in relation to construction traffic and access management during construction that are set out in this paragraph 234;

• (bb) where applicable, confirm to Anglo American in writing the identity of the client for the purposes of the relevant Construction Design and Management Regulations applicable from time to time; and

• (cc) obtain the agreement of Anglo American to the location of any temporary laydown areas where such areas are not those referred to in Table 5-2 of the environmental statement;

• (iv) update the monthly construction programme approved under sub-paragraph (iii)(aa) monthly and supply a copy of the updated programme to Anglo American every month;

• (v) at all times construct the Specified Works in compliance with the relevant approved construction programme and construction traffic and access management plan;

• (vi) notify Anglo American of any incidences which occur as a result of, or in connection with, the Specified Works which are required to be reported under the relevant Reporting of Injuries Diseases and Dangerous Occurrences Regulations applicable from time to time within 24 hours of the duty to report arising;

• (vii) provide comprehensive, as built, drawings of the Specified Works (including, for the avoidance of doubt, buried pipelines) within three months of the completion of each of the Specified Works;

• (viii) following the completion of each of the Specified Works unless otherwise agreed in writing by Anglo American fully reinstate the affected area (with the exception only of the retention of the permanent elements of the Specified Works) and remove all waste/surplus materials; and

• (ix) obtain the prior written consent of Anglo American for the use of any re-cycled aggregate material within the Shared Area;

• (b) in respect of Shared Area 1, construct the Specified Works in such a way that—

• (i) construction activities do not interfere with the ability of Anglo American to construct and operate the shiploader within Shared Area 1;

• (ii) construction access is maintained for Anglo American to undertake the construction of its ship loader, associated equipment and quay and is safeguarded;

• (iii) the use by Anglo American of a laydown facility within Shared Area 1 in connection with its construction activities is appropriately protected; and

• (iv) no works are carried out in that part of Shared Area 1 which is the subject of the AA Easements;

• (c) in respect of Shared Area 2, construct the Specified Works in such a way that—

• (i) the construction access required by Anglo American along Shared Area 2 for the construction of the quay authorised by the York Potash Order is safeguarded at all times;

• (ii) access for Anglo American and third parties to, and along, the pipeline corridor within Shared Area 2 is safeguarded at all times;

• (iii) Anglo American has unhindered access to manage the discharge facility within the NWL Facility and to empty their leachate chambers at all times so as to be able to comply with its obligations under the EA Permit;

• (iv) access via the area colloquially known as the Eston Triangle is safeguarded; and

• (v) the construction, operation and maintenance of any overland conveyor to be located within Shared Area 2 is not impaired;

• (d) in respect of Shared Area 3, construct the Specified Works in such a way that—

• (i) Anglo American is able to access the gas monitoring facility within the NWL Facility at all times so as to be able to comply with its obligations under the EA Permit;

• (ii) the operation and maintenance of boreholes BH0627 and BH0628 is not interfered with; and

• (iii) the construction, operation and maintenance of any overland conveyor to be located within Shared Area 3 is not impaired;

• (e) in respect of Shared Area 4, construct the Specified Works in such a way that—

• (i) use by Anglo American of laydown areas within Shared Area 4 in connection with construction activities for the Woodsmith Project is appropriately protected;

• (ii) access to the rail crossing point within or adjacent to Shared Area 4 for Anglo American is safeguarded;

• (iii) the operation and maintenance of borehole BH622 is not interfered with; and

• (iv) the construction, operation and maintenance of any overland conveyor to be located within Shared Area 4 is not impaired; and

• (f) in respect of Shared Area 5, construct the Specified Works in such a way that the construction, operation and maintenance of any overland conveyor to be located within Shared Area 5 is not impaired.

• (2) The undertaker must not do anything within Shared Areas 2,3, 4 and 5 which will constrain the ability of Anglo American to construct and operate an overland conveyor along the route which is the subject of the STDC Agreement or do anything which will compromise the construction, operational efficiency or maintenance of that conveyor or make the construction, operation or maintenance of it materially more expensive (unless such difference in cost (including any difference attributable to delay) is agreed to be provided by the undertaker).

• (3) Any spoil from the Anglo American Specified Works or the Specified Works (including contaminated material) must be dealt with in accordance with a spoil management plan to be agreed between the Parties in advance of the work by either Party generating such spoil beginning.

• (4) In considering a request for any consent under the provisions of this Part of this Schedule, Anglo American must not—

• (a) request an additional construction traffic and access management plan or a spoil management plan if such a plan has already been approved pursuant to sub-paragraph (1)(a)(iii)(aa) (as relevant in respect of a traffic and access management plan) or agreed pursuant to sub-paragraph (3) (in respect of a spoil management plan); and

• (b) refuse consent for reasons which conflict with the contents of documents approved by Anglo American pursuant to the provisions of this paragraph and paragraph 235.

Interface Design Process

236

• (1) Prior to the seeking of any consent under this Part of this Schedule, the undertaker must, unless Anglo American has brought forward works in that part of the Shared Area before the undertaker, participate in a design and constructability review for that part of the Shared Area which shall, at a minimum (unless otherwise agreed), include the following matters—

• (a) a Front End Engineering Design (FEED) level indicative construction work-pack;

• (b) a hazard and operability study;

• (c) a construction hazard study; and

• (d) in respect of any part of the Shared Area which is to accommodate the overland conveyor, information to demonstrate that the relevant Specified Works account for the interface with any overland conveyor located in that part of the Shared Area.

• (2) Unless otherwise agreed, the undertaker must submit the outcome of the design and constructability review referred to in sub-paragraph (1) to Anglo American for approval prior to the seeking of any consent under this Part of this Schedule.

• (3) The undertaker must at all times design and construct the Specified Works in compliance with the relevant approved design and constructability review pursuant to sub-paragraph (2).

• (4) The undertaker may undertake a single design and constructability review process for one or more parts of the Shared Area and any approved design and constructability review may be amended if agreed by Anglo American.

• (5) In considering any request for consent or approval under this Part of this Schedule, Anglo American must not refuse consent for details that are consistent with those approved under sub-paragraph (2) unless Anglo American reasonably believes that the relevant agreed design and constructability review is materially out of date or is inapplicable due to a change in either the authorised development or the Woodsmith Project.

Design Principles

237

The Specified Works must be designed in such a way (unless otherwise agreed by Anglo American)—

• (a) that the location and design of the Specified Works do not interfere with the operation and maintenance of boreholes BH0622, BH0627 and BH0628; and

• (b) so as not to conflict with the ability of Anglo American to construct the southern tower for the overland conveyor in the location authorised by the York Potash Order or the conveyor towers in the alternative locations within Shared Area 4.

Maintenance and Operational Principles

238

The Specified Works must be maintained and operated in such a way that (unless otherwise agreed, in an emergency, or where it would render the Specified Works, Anglo American Specified Works or Anglo American Apparatus unsafe, or put the undertaker in breach of its statutory duties)—

• (a) in Shared Area 2: Anglo American has unhindered access to manage the discharge facility within the NWL Facility and to empty their leachate chambers so as to be able to comply with its obligations under the EA Permit;

• (b) in Shared Area 3: Anglo American (along with NWL) has unhindered access to monitor the gas monitoring facility located within the NWL Facility so as to be able to comply with its obligations under the EA Permit; and

• (c) in Shared Areas 2, 3, 4 and 5: the operation of any overland conveyor located within those Shared Areas is not impaired.

Miscellaneous provisions

239

• (1) The undertaker and Anglo American must each act in good faith and use reasonable endeavours to co-operate with, and provide assistance to, each other as may be required to give effect to the provisions of this Part of this Schedule.

• (2) The undertaker must pay to Anglo American the reasonable expenses incurred by Anglo American in connection with the consenting processes under this Part of this Schedule, including the approval of plans, inspection of any Specified Works or the alteration or protection of the Anglo American Specified Works.

Indemnity

240

• (1) Subject to sub-paragraphs (2) and (3), if by reason, or in consequence, of the construction, maintenance or operation of any Specified Works, or failure thereof, any damage is caused to any Anglo American Apparatus used in connection with the Anglo American Specified Works or damage is caused to any part of the Anglo American Specified Works or there is any interruption in any service provided, or the operations of Anglo American, or in the supply of any goods, by Anglo American, or Anglo American becomes liable to pay any amount to any third party as a consequence of the Specified Works, the undertaker must—

• (a) bear and pay the costs reasonably incurred by Anglo American in making good such damage or restoring the service, operations or supply; and

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

• (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 Anglo American, its officers, employees, servants, contractors or agents.

• (3) Anglo American 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 Anglo American fully informed of the developments and material elements of the proceedings;

• (b) take account of the views of Anglo American before taking any action in relation to the claim;

• (c) not bring the name of ... Anglo American or 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 Anglo American such consent not to be unreasonably withheld or delayed.

• (5) Anglo American must use its reasonable endeavours to mitigate any claim or losses in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If requested to do so by the undertaker, Anglo American 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).

• (6) The undertaker shall not be liable under this paragraph in respect of any claim capable of being mitigated or minimised to the extent that Anglo American has not used its reasonable endeavours to mitigate and/or minimise that claim in accordance with sub-paragraph (5).

• (7) The fact that any work or thing has been executed or done with the consent of Anglo American and in accordance with any conditions or restrictions prescribed by Anglo American or in accordance with any plans approved by Anglo American or to its satisfaction or in accordance with any directions or award of any expert appointed pursuant to paragraph 241 does not relieve the undertaker from any liability under this paragraph.

Dispute Resolution

241

Article 47 (arbitration) does not apply to the provisions of this Part of this Schedule.

242

Any difference in relation to the provisions in this Part of this Schedule must be referred to—

• (a) a meeting of the Managing Director of Net Zero Teesside Power Limited and/or the Managing Director of Net Zero North Sea Storage Limited, whichever is the relevant party and the Chief Executive Officer of Anglo American Crop Nutrients Limited to seek agreement on the matter in dispute within 21 days from the date of a dispute first being notified in writing by one Party to the other; and