The HyNet Carbon Dioxide Pipeline Order 2024

• (2) Any difference under this Part of this Schedule may be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

• (3) On notification by either party of a dispute, the parties must jointly instruct an expert within 14 days of notification of the dispute.

• (4) All parties involved in settling any difference must use all reasonable but commercially prudent endeavours to do so within 21 days from the date that an expert is appointed.

• (5) The expert must—

• (a) invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 7 days of the expert’s appointment;

• (b) permit a party to comment on the submissions made by the other party within 7 days of receipt of the submission;

• (c) issue a decision within 7 days of receipt of the submissions under sub-paragraph (b); and

• (d) give reasons for the decision.

• (6) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47 (arbitration).

• (7) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally.

PART 18 — For the protection of local highway authorities

236

The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and the relevant local highway authority.

237

In this Part of this Schedule—

• “Consents” means approvals, consents, licences, permissions, or registrations;

• “RSA” or “Road Safety Audit” means a review of the proposed design or any works and any road safety impacts carried out in accordance with the Design Manual for Roads and Bridges or such other standard as the undertaker and the relevant local highway authority may agree;

• “highway” means a highway vested in or maintainable by the relevant local highway authority as highway authority under the 1980 Act and this definition shall include any bridge or structure carrying a highway;

• “relevant local highway authority” means in relation to highways within Cheshire West and Chester, Cheshire West and Chester Council, and in relation to highways in Flintshire, Flintshire County Council

• “specified work” means the works under the Order to create new, permanent junctions to the public highway and the installation of the pipeline in or under the highway where that requires breaking open of the surface of the highway.

Highway condition and highway assets surveys

238

• (1) The undertaker will notify the of relevant local highway authority -

• (a) of the anticipated date of commencement of any Works to be undertaken under this Order; and

• (b) of the anticipated construction programme and date of completion of the authorised development;

not less than 3 months prior to that anticipated date of commencement of any Works to be undertaken under this Order.

• (2) The undertaker and relevant local highway authority may agree that the relevant local highway authority will procure the highway condition surveys required under this Part of this Schedule at the cost of the undertaker.

• (3) The undertaker will agree a proposed scope with the relevant local highway authority setting out the number (having regard to the construction programme), content and format of the highway condition surveys no later than 4 weeks after notification under sub- paragraph (1). If the undertaker fails to provide a highway condition survey or does not provide the relevant local highway authority with sufficient time to undertake a highway condition survey prior to any Works being undertaken pursuant to the Order then in default the last highway condition survey undertaken by the relevant local highway authority will amount to the baseline condition of the relevant highway and/or highway asset.

• (4) A final highway condition survey must be procured by the undertaker within 28 days of the relevant local highway authority being notified by the undertaker that the construction of the authorised development is complete.

• (5) Copies of any highway condition survey carried out in accordance with this paragraph must be provided to the relevant local highway authority by the undertaker within 10 working days of the completion of the relevant survey.

HGV route remediation

239

• (1) The undertaker must maintain and provide to the relevant local highway authority at 3 month intervals from the date of any Works being undertaken under this Order until the authorised development is complete, records of the number of HGVs using the highway identified in paragraph 238(2) and/ or any amendments thereto to access the authorised development and details of which route such HGVs used.

• (2) The relevant local highway authority will, having regard to the highway condition surveys, identify any need for remediation of the highway on the highway identified in paragraph 238(3) and/or any amendments made thereto.

• (3) Where a need for remediation works or measures is identified under sub-paragraph (1), the relevant local highway authority must prepare a schedule of the works or measures required and of the cost of the delivery of those works or measures identified. For the avoidance of doubt, the reasonable cost of reviewing the highway condition surveys and preparing the schedule of works will be met by the undertaker.

• (4) Upon receipt of the schedule of works identified in paragraph (2) and/or any amendments made thereto, the undertaker will apply for a licence from the relevant local highway authority to undertake the remediation works to the highway and must undertake these works within 3 months of that licence being granted. The cost of the licence and relevant approvals will be paid by the undertaker to the relevant local highway authority.

Specified work

240

• (1) The undertaker will allow and facilitate an appropriately qualified officer of the relevant local highway authority to participate in the design process for any Work authorised by this Order which involves a specified work and/or any other Work to the local highway network required pursuant to this Order, and will have reasonable regard to any views of that officer in finalising the detailed design of that Work, provided always that any such view shared by the officer will not be an instruction, requirement or authorisation under this Order.

• (2) Any officer of the relevant local highway authority duly appointed for the purpose may at all reasonable times, on giving to the undertaker such notice as may in the circumstances be reasonable, enter upon and inspect any part of the authorised development which—

• (a) is in, on, over or under any highway; or

• (b) which may affect any highway;

during the carrying out of the Work, and the undertaker will give to such officer all reasonable facilities for such inspection (subject to any reasonable adjustments necessary for the safety of such officer) and, if the officer is of the opinion that the construction of the Work poses danger to any highway or to any property of the relevant local highway authority or danger to persons or vehicles or other property in relation to which the relevant local highway authority might be liable on, in, over or under any highway, the undertaker will adopt such measures and precautions as may be reasonably practicable for the purpose of preventing any damage or injury to the highway or persons or vehicles or other property aforesaid.

• (3) Any officer of the relevant local highway authority exercising the right to inspect works under sub-paragraph (1) must comply with all reasonable health and safety requirements and instructions of the undertaker in doing so.

• (4) The undertaker must, if reasonably required by the relevant local highway authority, provide and maintain during such time as the undertaker may occupy any part of a highway for the purpose of the construction of any part of the authorised development, temporary ramps for vehicular or pedestrian traffic and any other traffic measures required to protect the safety of road users in accordance with chapter 8 of the Traffic Signs Manual and the Safety at Street Works and Road Works A Code of Practice as may be necessary.

241

• (1) Where, under this Order, any street works require to be undertaken to the reasonable satisfaction of the local highway authority, this paragraph will apply.

• (2) The relevant local highway authority will, as soon as reasonably practicable following the receipt of notice from the undertaker that it considers any street works to which this paragraph applies to be complete, carry out an inspection of such street works.

• (3) The relevant local highway authority will confirm when any street works have been completed to their reasonable satisfaction in writing and will set out in such confirmation the date on which the works were last inspected to establish such reasonable satisfaction. For the period of 24 months from the date of last inspection as stated in the confirmation of reasonable satisfaction, the undertaker will be liable to pay to the relevant local highway authority the reasonable costs of repairing or rectifying any defect in the highway which, in the opinion of the relevant local highway authority (acting reasonably) was caused by or is attributable to the carrying out of street works by the undertaker.

• (4) The reasonable costs set out in paragraph (3) may include the costs of the time of the relevant local highway authority’s officers and employees incurred in the remediation or rectification of a defect as well as the cost of the remediation or repair, whether carried out by the local highway authority or on their instruction. The costs payable under paragraph (3) must be paid by the undertaker in full within 30 days of receipt of an invoice for such costs provided that such invoice includes a breakdown of the charges incurred and is accompanied by copies of any invoices received by the relevant local highway authority for works undertaken to remedy or repair the defect. Disputes.

• (5) Any difference arising between the undertaker and the relevant local highway authority under this Part of this Schedule (other than in difference as to the meaning or construction of this Part of this Schedule) will be resolved by arbitration under article 47 (arbitration).

PART 19 — For the protection of drainage authorities

242

The provisions of this Part of this Schedule apply for the protection of the drainage authority unless otherwise agreed between the undertaker and the drainage authority.

243

In this Part of this Schedule—

• “construction” includes execution, placing, altering, laying, replacing, relaying, connecting, building, installing, removal and excavation, and “construct” and “constructed” are to be construed accordingly;

• “the drainage authority” means— the drainage board concerned within the meaning of section 23(a) (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991; or in the case of any area for which there is no such drainage board, the lead local flood authority within the meaning of section 6 (other definitions) of the Flood and Water Management Act 2010(b);

• “drainage work” means any ordinary watercourse and includes any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse which is the responsibility of the drainage authority;

• “ordinary watercourse” has the same meaning as given in section 72 (interpretation) of the Land Drainage Act 1991(a);

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

• “specified work” means works carried out in relation to or which may alter or obstruct any ordinary watercourse including by— erecting any mill dam, weir or other similar obstruction to the flow of the watercourse, or raising or otherwise altering any such obstruction; construction or installation of a bridge or other crossing structure; installing a culvert in the watercourse; or altering a watercourse or a culvert or other form of drainage infrastructure in a manner that would be likely to affect the flow of the watercourse.

244

• (1) Before beginning to construct any specified work, the undertaker must submit to the drainage authority plans of the work, and such further particulars as the drainage authority may within 14 days of the first submission of the plans reasonably require.

• (2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority, or determined under paragraph 250.

• (3) The drainage authority must approve or refuse approval of the plans for a specified work within 56 days of receipt of the later of—

• (a) the plans under sub-paragraph (1); or

• (b) such further particulars as the drainage authority may reasonably require under sub-paragraph (1).

• (4) Any approval of the drainage authority required under this paragraph—

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

• (b) is to be deemed to have been given if it is neither given nor refused within the period specified in sub-paragraph (3); and

• (c) may be given subject to such reasonable requirements or conditions as the drainage authority may make for the protection of any ordinary watercourse or for the prevention of flooding.

245

The requirements or conditions which the drainage authority may make under paragraph 244 include conditions requiring the undertaker at its own expense to construct such protective works (including any new works as well as alterations to existing works) as are reasonably necessary—

• (a) to safeguard any ordinary watercourse against damage, or

• (b) to secure that the efficiency of any ordinary watercourse for flood defence or land drainage purposes is not impaired and that the risk of flooding is not otherwise increased, by reason of the specified work in relation to the ordinary watercourse.

246

• (1) Any specified work in relation to an ordinary watercourse, and all protective works required by the drainage authority under paragraph 244, must be constructed to the reasonable satisfaction of the drainage authority and an officer of the drainage authority is entitled, on giving such notice as may be reasonable in the circumstances, to inspect and watch the construction of such works.

• (2) The undertaker must give to the drainage authority not less than 14 days’ notice of its intention to commence construction of any specified work and the undertaker must give to the drainage authority notice of completion of a specified work not later than 7 days after the date on which it is brought into use.

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

• (4) Subject to sub-paragraph (5), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress toward their implementation, the drainage authority may execute the works specified in the notice, subject to the undertaker having the right to supervise the planning and execution of such works to the extent they may affect the pipeline to the extent that those works are compliant with and do not compromise the undertaker’s ability to comply with the Pipeline Safety Regulations 1996, and any expenditure reasonably incurred by it in so doing is to be recoverable from the undertaker. Notwithstanding the foregoing, the drainage authority may not under any circumstances undertake any works to the pipeline itself which could or would conflict with the duties and obligations of the undertaker under the Pipeline Safety Regulations 1996, any direction issued by the Health and Safety Executive under those Regulations or any other health and safety legislation relating to the operation and maintenance of the pipeline.

• (5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the drainage authority must not, except in an emergency, exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.

247

• (1) From the commencement of the construction of any specified work until the date falling 12 months from the date of completion of the specified work (“the maintenance period”), the undertaker must at its expense, maintain in at least as good repair and condition immediately prior to commencement of the construction of the specified work and keep free from obstruction any part of a drainage work which is situated within land held or occupied by the undertaker in respect of the specified work, whether the drainage work is constructed under this Order or is already in existence.

• (2) If any such drainage work which the undertaker is liable to maintain during the maintenance period is not maintained to the reasonable satisfaction of the drainage authority, it may by notice require the undertaker to maintain the drainage work at the undertaker’s expense, or any part of it, to such extent as the drainage authority reasonably requires.

• (3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is necessary for such compliance, subject to the undertaker having the right to supervise the planning and execution of such works to the extent they may affect the pipeline to the extent that those works are compliant with and do not compromise the undertaker’s ability to comply with the Pipeline Safety Regulations 1996, and may recover any expenditure reasonably incurred by it in doing so from the undertaker Notwithstanding the foregoing, the drainage authority may not under any circumstances undertake any works to the pipeline itself which could or would conflict with the duties and obligations of the undertaker under the Pipeline Safety Regulations 1996, any direction issued by the Health and Safety Executive under those Regulations or any other health and safety legislation relating to the operation and maintenance of the pipeline.

• (4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the drainage authority must not, except in a case of emergency, exercise the powers of sub-paragraph (3) until the dispute has been finally determined.

• (5) This paragraph does not apply to—

• (a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; and

• (b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.

248

Subject to paragraph 247(5)(b), if by reason of the construction of any specified work or of the failure of any such work the efficiency of any ordinary watercourse for flood defence or land drainage purposes is impaired, or that watercourse is otherwise damaged, so as to require remedial action, such impairment or damage must be made good by the undertaker at its own expense to the reasonable satisfaction of the drainage authority and if the undertaker fails to do so, the drainage authority may make good the same and recover the expense reasonably incurred by it in so doing from the undertaker.

249

• (1) The undertaker must make reasonable compensation to the drainage authority for costs, charges and expenses which it may reasonably incur or which it may sustain—

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

• (b) in the inspection and supervision of the construction of a specified work in respect of an ordinary watercourse or any protective works required by the drainage authority under this Part of this Schedule.

250

Any dispute arising between the undertaker and the drainage authority under this Part of this Schedule is to be determined by arbitration in accordance with article 47 (arbitration) of the Order.

PART 20 — For the protection of Exolum Pipeline System Ltd

Application

251

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

Interpretation

252

In this Part of this Schedule, the following terms have the following meanings—

• “Additional Rights” means rights for the construction and for access to and for the use, protection, inspection, maintenance, repair and renewal of retained Apparatus including any restrictions on the landowner and occupiers for the protection of the retained Apparatus and to allow Exolum to perform its functions;

• “Alternative Apparatus” means alternative apparatus adequate to enable Exolum to fulfil its functions as a pipeline operator in a manner not less efficient than previously;

• “Alternative Rights” means rights for the construction and for access to and for the use, protection, inspection, maintenance, repair and renewal of Alternative Apparatus including any restrictions on the landowner and occupiers for the protection of the Alternative Apparatus and to allow Exolum to perform its functions;

• “Apparatus” means the pipeline and storage system and any ancillary apparatus owned and/or operated by Exolum and includes—any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;any ancillary works, all protective wrappings, valves, sleeves and slabs, cathodic protection units, together with ancillary cables and markers;such legal interest, and benefit of property rights and covenants as are vested in in respect of these items;and, where the context allows, includes Alternative Apparatus;

• “Application” means the application to the Secretary of State for the Order made by the undertaker under the Planning Act 2008 on 3 October 2022;

• “Authorised Development” has the same meaning as that given in article 2(1) (interpretation) of the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised development and construction of any works authorised by this Schedule;

• “Commence” has the same meaning as that given in article 2(1) of the Order (and commencing must be construed accordingly);

• “Deed of Consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus or to provide for access to Apparatus in a manner consistent with the terms of this Part of this Schedule;

• “Exolum” means Exolum Pipeline System Ltd (company number 09497223) and for the purpose of enforcing the benefit of any provisions in this Schedule, any group company of Exolum Pipeline System Ltd and in all cases any successor in title;

• “Expert” is a person appointed in accordance with paragraphs 306 to 314 to resolve a dispute under this Schedule;

• “Functions” includes powers, duties and commercial undertaking;

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

• “Order” means the order granting development consent, made by the Secretary of State and brought into force following the Application under the Planning Act 2008l

• “parties” means the undertaker and Exolum and “party” is to be construed accordingly;

• “Plan” includes all designs, drawings, sections, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary to allow Exolum to assess the relevant works to be executed properly and sufficiently and in particular must describe—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 the affected Apparatus and/or Premises and any other apparatus belonging to another undertaker;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; anddetails of vehicle access routes for construction and operational traffic;

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

• “Protective Works” means works for the inspection and protection of Apparatus;

• “Restricted Works” means any works that are near to, or will or may affect any Apparatus or Premises including—all works within 15 metres measured in any direction of any Apparatus including embankment works and those that involve a physical connection or attachment to any Apparatus,the crossing of Apparatus by other utilities,the use of explosives within 400 metres of any Apparatus or Premises,piling, undertaking of a 3D seismic survey or the sinking of boreholes within 30 metres of any Apparatus or Premises,all works that impose a load directly upon the Apparatus, wherever situated

whether carried out by the undertaker or any third party in connection with the Authorised Development; and

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

Acquisition of Apparatus

253

• (1) Regardless of any other provision in the Order or anything shown on the land plans or if the Order covers any Premises or interest in any land in which any Apparatus is placed or over which access to any Apparatus is enjoyed—

• (a) The undertaker must not, otherwise than by agreement with Exolum, acquire any Apparatus or Exolum’s rights in respect of Apparatus;

• (b) Where the undertaker acquires the freehold of any land in which Exolum holds an interest, the undertaker must afford to or secure for Exolum such rights in land in substitution for any right which would be extinguished by that acquisition (the replacement rights). These replacement rights must be granted upon substantially the same terms and conditions as the right to be extinguished, unless otherwise agreed between the undertaker and Exolum, and must be granted or put in place contemporaneously with the extinguishment of the right which they replace;

• (c) the undertaker must not, otherwise than in accordance with this Schedule:

• (i) obstruct or render less convenient the access to any Apparatus or Premises;

• (ii) interfere with or affect Exolum’s ability to carry out its functions as an oil pipeline operator;

• (iii) require that Apparatus is relocated or diverted; or

• (iv) remove or required to be removed any Apparatus;

• (d) any right of Exolum to maintain, repair, renew, adjust, alter or inspect Apparatus may not be extinguished until any necessary Alternative Apparatus has been constructed, it is in operation and the Alternative Rights have been granted, all to the reasonable satisfaction of Exolum; and

• (e) any right of Exolum to access the Exolum Apparatus and/or Premises must not be extinguished until necessary alternative access has been provided to Exolum’s reasonable satisfaction.

254

Prior to the carrying out of any Restricted Works or any works authorised by this Order that will affect the existing rights of Exolum, the parties must use all reasonable endeavours to negotiate and enter into such Deeds of Consent (crossing consent) and (if necessary) variations to the existing rights upon such terms and conditions as may be agreed between Exolum and the undertaker acting reasonably and which must be no less favourable on the whole to Exolum than this Schedule, and it will be the responsibility of the undertaker to procure and / or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such works.

255

Where the undertaker acquires land which is subject to any existing rights held by Exolum and the provisions of paragraph 265 do not apply, the undertaker must—

• (a) Retain any notice of the existing rights held by Exolum on the title to the relevant land when registering the undertaker’s title to such acquired land; and

• (b) provide up to date official entry copies to Exolum within 20 working days of receipt of such up to date official entry copies.

256

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, asset, interest, Apparatus or Premises:

• (a) where reasonably necessary, and provided that all health and safety requirements are complied with (including any requirements applicable to the undertaker under the Construction, Design and Management Regulations 2015), Exolum may exercise its rights to access such land—

• (i) in an emergency, without notice but in all such instances Exolum will notify the undertaker as soon as reasonably practicable and until service of such notice, entry will be at Exolum’s own risk; and

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

• (b) the undertaker may not remove or in any way alter Exolum’s rights in such land, unless in accordance with the provisions of this Order.

Removal of Apparatus and Rights for Alternative Apparatus

257

If, having used all reasonable endeavours to implement the Authorised Development without the removal of any Apparatus:

• (a) the undertaker reasonably requires the removal of any Apparatus; or

• (b) Exolum reasonably requires the removal of any Apparatus;

then the relevant party must give written notice of that requirement to the other.

258

The parties must use all reasonable endeavours to produce a plan of the work proposed and a plan of the proposed position of the Alternative Apparatus to be provided or constructed.

259

The undertaker must afford to Exolum the necessary facilities and rights for the construction of Alternative Apparatus and subsequently the grant of Alternative Rights in accordance with paragraphs 265 to 269.

260

Any Alternative Apparatus is to be constructed in land owned by the undertaker or in land in respect of which Alternative Rights have been or are guaranteed to be granted to Exolum. The Alternative Apparatus must be constructed in such manner and in such position or situation as may be agreed between Exolum and the undertaker or in default of agreement settled by expert determination in accordance with paragraphs 306 to 314.

261

After the details for the works for Alternative Apparatus to be provided or constructed have been agreed or settled by expert determination in accordance with paragraphs 306 to 314, and after the grant to Exolum of any such facilities and rights as are referred to in paragraph 257, Exolum must proceed as soon as reasonably practicable using all reasonable endeavours to construct and bring into operation the Alternative Apparatus and subsequently to remove (or if agreed between the parties to allow the undertaker to remove) any redundant Apparatus required by the undertaker to be removed under the provisions of this Schedule.

262

The following paragraphs 263 and 264 only apply if:

• (a) Exolum fails to comply with its obligations under paragraph 261 to remove any redundant Apparatus; and

• (b) the undertaker has served notice on Exolum specifying the default; and

• (c) Exolum has failed to remedy the default within 28 days.

263

In the circumstances set out in paragraph 262, if the undertaker then gives notice in writing to Exolum that it will remove the redundant Apparatus, that work, instead of being executed by Exolum, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of Exolum.

264

Nothing in paragraph 263 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 3000 millimetres of the Apparatus unless that Apparatus is redundant and disconnected from Exolum’s remaining system.

Facilities and Rights for Alternative Apparatus

265

Where, in accordance with the provisions of this Schedule, the undertaker affords to Exolum facilities and rights for the construction of Alternative Apparatus and the grant of Alternative Rights, 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 Exolum in accordance with this Schedule or in default of agreement settled by expert determination in accordance with paragraphs 306 to 314.

266

Alternative Rights must be granted before any Alternative Apparatus is operating as part of the pipeline and storage system which forms the Apparatus.

267

The parties agree that the Alternative Rights be granted by way of a 999 year lease, substantially in the form of Exolum’s precedent from time to time as amended by written agreement between the parties acting reasonably.

268

Nothing in this Schedule or contained in the Alternative Rights shall require Exolum to divert or remove any Alternative Apparatus.

269

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 Expert less favourable on the whole to Exolum 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 Expert will make such provision for the payment of compensation by the undertaker to Exolum as appears to the Expert to be reasonable having regard to all the circumstances of the particular case.

Retained Apparatus and Alternative Apparatus: protection

270

Before commencing the execution of any Restricted Works, the undertaker must submit to Exolum a Plan of the works to be executed and any other information that Exolum may reasonably require to allow Exolum to assess the works.

271

No Restricted Works are to be commenced until the Plan to be submitted to Exolum under paragraph 270 has been approved by Exolum in writing and are to be carried out only in accordance with the details submitted under paragraph 270 and in accordance with such reasonable requirements as may be notified to the undertaker in writing in accordance with paragraph 272 by Exolum.

272

Any approval by Exolum of the Plan of works submitted under paragraph 270 must not be unreasonably withheld or delayed, and Exolum must communicate its approval or refusal of the plans within 56 days of the date of submission of the plan under paragraph 270 and any approval of the Plan of works may be given subject to such reasonable requirements as Exolum may require to be made for—

• (a) the continuing safety and operational viability of any Apparatus and/or Premises; and

• (b) the requirement for Exolum to have reasonable access with or without vehicles to inspect, repair, replace, maintain and ensure the continuing safety and operation or viability of any Apparatus and/or Premises

providing such reasonable requirements are notified to the undertaker in writing.

273

Exolum will be entitled to watch and inspect the execution of Restricted Works at any time.

274

Where reasonably required by either party, in view of the complexity of any proposed works, timescales, phasing or costs, the parties must with due diligence and good faith negotiate a works agreement for the carrying out of Protective Works or the installation of Alternative Apparatus.

275

If in consequence of the works notified to Exolum by the undertaker under paragraph 271, the circumstances in paragraph 257 apply, then the parties will follow the procedure in paragraph 257 onwards.

276

Nothing in paragraphs 270 to 275 precludes the undertaker from submitting prior to the commencement of works to protect retained Apparatus or to construct Alternative Apparatus (unless otherwise agreed in writing between the undertaker and Exolum) a new Plan, instead of the Plan previously submitted, in which case the parties will re-run the procedure from paragraph 275 onwards.

277

Where Exolum reasonably requires Protective Works, the parties must use all reasonable endeavours to produce a plan of the work proposed and a plan of the proposed position of any physical features to be provided or constructed.

278

The undertaker must afford to Exolum the necessary facilities and rights for the construction of Protective Works and subsequently the grant of Additional Rights in accordance with paragraphs 265 to 269.

279

Any Protective Works are to be constructed in land owned by the undertaker or in land in respect of which Additional Rights have been or are guaranteed to be granted to Exolum. The Protective Works must be constructed in such manner and in such position or situation as may be agreed between Exolum and the undertaker or in default of agreement settled by expert determination in accordance with paragraphs 306 to 314.

280

After the details for the Protective Works to be provided or constructed have been agreed or settled in accordance with paragraphs 306 to 314, and after the grant to Exolum of any such facilities and rights as are referred to in paragraph 259, Exolum must proceed as soon as reasonably practicable using reasonable endeavours to construct and bring into operation the Protective Works.

281

Where the undertaker needs to carry out emergency works—

• (a) it must give to Exolum notice before such works commence, or as soon as is reasonably practicable after the works have commenced where it is not reasonably practicable to provide notice prior to commencement;

• (b) the parties will work together to co-ordinate their respective works and agree a plan of those works before such works commence, or as soon as is reasonably practicable after the works have commenced where it is not reasonably practicable to provide notice prior to commencement; and

• (c) it must comply with the conditions imposed under paragraph 272 insofar as is reasonably practicable in the circumstances.

282

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

Cathodic protection testing

283

Where in the reasonable opinion of Exolum or the undertaker—

• (a) the Authorised Development might interfere with the cathodic protection forming part of Apparatus; or

• (b) any Apparatus might interfere with the proposed or existing cathodic protection forming part of the Authorised Development;

284

The Parties must carry out the works and enter into such agreements as are reasonably necessary to implement the measures for providing or preserving cathodic protection.

Expenses

285

• (1) Subject to the following provisions of these paragraphs 285 to 288, 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 Schedule including:

• (i) the installation, inspection, removal, alteration, testing or protection of any Apparatus, Alternative Apparatus and/or Protective Works;

• (ii) the execution of any other works under this Schedule; and

• (iii) the review and assessment of Plans;

• (b) the watching of and inspecting the execution of the Authorised Development, any Restricted Works and any works undertaken by third parties as a result of Authorised Development (including the assessment of Plans); and

• (c) imposing reasonable requirements for the protection or alteration of Apparatus affected by the Authorised Development or works as a consequence of the Authorised Development in accordance with paragraph 272;

together with any administrative costs properly and reasonably incurred by Exolum.

286

Provided that Exolum takes all reasonable steps to minimise the costs incurred in the following circumstances, there will be no deduction from any sum payable under paragraph 285 as a result of—

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

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

287

The scrap value (if any) of any Apparatus removed under the provisions of this Schedule is to be deducted from any sum payable under paragraph 285.

288

Upon the submission of proper and reasonable estimates of costs and expenses to be incurred by Exolum, the undertaker must pay Exolum sufficiently in advance but to enable Exolum to undertake its obligations under this Schedule provided that in the event that the costs reasonably incurred by Exolum are less than the amount paid by the undertaker pursuant to this paragraph 288 then Exolum must promptly repay any overpayment to the undertaker within 30 days of the payment of those costs.

Damage to property and other losses

289

Subject to paragraphs 290 to 293, the undertaker will—

• (a) indemnify Exolum for all reasonable loss, damage, liability, costs and expenses reasonably suffered or incurred by Exolum directly arising out of—

• (i) the carrying out of works under this Schedule;

• (ii) the carrying out of the Authorised Development;

• (iii) the use or occupation of land over or in the vicinity of any Apparatus or in the vicinity of any Premises in connection with the carrying out of the Authorised Development;

• (iv) any injury or damage whatsoever to any property, real or personal, including the property of Exolum; and

• (v) any matters arising out of or in connection with this Order;

• (b) indemnify Exolum against any claim made against, or loss suffered by, Exolum as a result of any act or omission committed by the undertaker’s officers, employees, contractors or agents whilst on or in the vicinity of any Apparatus or Premises;

• (c) pay to Exolum on demand the cost reasonably incurred by Exolum in making good any damage to the Apparatus (other than Apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) arising out of the carrying out of works under this Schedule and arising out of the carrying out of the Authorised Development; and

• (d) pay to Exolum the cost reasonably incurred by Exolum in stopping, suspending and restoring the supply though its Apparatus in consequence of the carrying out of works under this Schedule or the carrying out of the Authorised Development;

and make reasonable compensation to Exolum for any other expenses, losses, damages, penalty or costs incurred by Exolum by reason of any such damage or interruption including all claims by third parties.

290

The fact that any act or thing may have been done by Exolum on behalf of the undertaker or in accordance with a Plan approved by Exolum or in accordance with any requirement of Exolum or under its supervision will not, subject to paragraph 291, excuse the undertaker from liability under the provisions of paragraph 289.

291

The undertaker and Exolum must at all times take reasonable steps to prevent and mitigate any loss, damage, liability, claim, cost or expense (whether indemnified or not) which either suffers in connection with this Schedule.

292

The undertaker warrants that—

• (a) the information it or any of its employees, agents or contractors provide to Exolum about the Plans or the Authorised Development and on which Exolum relies in the design of and carrying out of any works is accurate; and

• (b) the undertaker or any of its employees, agents or contractors have exercised all the reasonable skill, care and diligence to be expected of a qualified and experienced member of their respective profession.

293

Exolum must give to the undertaker reasonable notice of any claim or demand to which paragraph 289 applies.

Insurance

294

The undertaker must not commence the Authorised Development or any intrusive environmental (including archaeological) surveys and investigation or intrusive site or soil surveys on any land in respect of which Exolum has an easement, right, operations, assets or other interests or carry out any Restricted Works unless and until Exolum has confirmed to the undertaker in writing that it is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker (or its contractor) has procured acceptable professional indemnity insurance, where relevant, and public liability insurance with minimum cover of £25 million per event, with respect to the carrying out of the works.

295

The undertaker must maintain such insurance for the construction period of the Restricted Works, being from the proposed date of commencement of the Authorised Development to the completion of any Restricted Works or Protective Works.

Co-operation and reasonableness

296

Where Apparatus is required to be protected, altered, diverted or removed under this Schedule, the undertaker must use all reasonable endeavours to co-ordinate the execution of any works under this Schedule—

• (a) in the interests of safety;

• (b) 47.2 in the interest of the efficient and economic execution of both Exolum’s works and the Authorised Development; and

• (c) 47.3 taking into account the need to ensure the safe and efficient operation of Apparatus and carrying out of Exolum’s functions.

297

Exolum must use all reasonable endeavours to co-operate with the undertaker for the purposes outlined in paragraph 296.

298

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

Emergency circumstances

299

The undertaker acknowledges that Exolum provides services to His Majesty’s Government, using the Apparatus, which may affect any works to be carried under this Schedule and the Authorised Development.

300

In the following circumstances, Exolum may on written notice to the undertaker immediately suspend all works that necessitate the stopping or suspending of the supply of product through any Apparatus under this Schedule and Exolum will not be in breach of its obligations under this Schedule—

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

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

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

• (d) any circumstances identified as such by the COBRA committee of the Government (or any successor committee thereof); or

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

301

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

302

Exolum is not liable for any costs, expenses, losses or liabilities the undertaker incurs as a result of the suspension of any activities under paragraphs 299 to 301 or delays caused by it.

Escalation of differences

303

The undertaker and Exolum must use their reasonable endeavours to secure the amicable resolution of any dispute or difference arising between them out of or in connection with this Schedule in accordance with the following provisions.

304

The undertaker and Exolum will each nominate a representative who will meet to try to resolve the matter. If the matter is not resolved at that level within ten working days of either the undertaker or Exolum requesting such a meeting (or such longer period as may be agreed between the undertaker and Exolum) the matter may at the request of either the undertaker or Exolum be referred for discussion at a meeting to be attended by a senior executive from each party.

305

If the meeting between senior executives fails to result in a settlement within 20 working days of the date of the request for such a meeting (or if it is not possible to convene a meeting within this period) then either the undertaker or Exolum may refer the matter to expert determination or arbitration in accordance with the provisions of paragraphs 303 to 314.

Dispute resolution

306

If any dispute or difference arising out of or in connection with this Schedule is not resolved in accordance with paragraphs 303 to 305, either the undertaker or Exolum may refer the matter to:

• (a) in the case of any dispute or difference pursuant to paragraphs 260, 265, 269 or 283, expert determination under paragraphs 306to 314; or

• (b) in the case of any dispute or difference not falling within paragraphs 306(a), arbitration under article 49 (arbitration) of the Order.

307

The parties will agree on the appointment of an independent Expert and must agree with the Expert the terms of their appointment.

308

If the parties are unable to agree on an Expert or the terms of their appointment within five working days of either party serving details of a suggested expert on the other, either party will then be entitled to request the Institution of Civil Engineers or its successor to appoint an Expert and to agree with the Expert the terms of their appointment.

309

The Expert is required to prepare a written decision including reasons and give notice (including a copy) of the decision to the parties within a maximum of three months of the matter being referred to them.

310

If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by paragraph 309 then either party may re-apply to the relevant professional body referred to above to discharge the Expert and to appoint a replacement Expert with the required expertise and paragraph 306 onwards will apply to the new Expert as if they were the first Expert appointed.

311

The parties are entitled to make submissions to the Expert and will provide the Expert with such assistance and documents as the Expert reasonably requires for the purpose of reaching a decision.

312

The Expert will act as an expert and not as an arbitrator. The Expert may award interest as part of their decision. The Expert’s written decision on the matters referred to them will be final and binding on the parties in the absence of manifest error or fraud.

313

The Expert may direct that any legal costs and expenses incurred by a party in respect of the determination will be paid by another party to the determination on the general principle that costs should follow the event, except where it appears to the Expert that, in the circumstances, this is not appropriate in relation to the whole or part of such costs. The Expert’s fees and any costs properly incurred by them in arriving at his determination (including any fees and costs of any advisers appointed by the Expert) will be borne by the parties equally or in such other proportions as the Expert directs.

314

The dispute resolution procedure set out in this Schedule will apply to matters dealt with in this Schedule notwithstanding any dispute resolution procedure provided for either in the Order or as part of any other consent in respect of the Authorised Development.

Miscellaneous

315

Nothing in this Schedule affects the provisions of any enactment or prior agreement regulating the relations between the undertaker and Exolum in respect of any Apparatus laid or erected in land belonging to the undertaker on the date the Order is granted.

316

No failure or delay by a party to exercise any right or remedy provided under this Schedule or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.

PART 21 — For the protection of the Environment Agency

317

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

• (2) In this part of this Schedule –

• “Agency” means the Environment Agency;

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

• “flood risk activity permit” means an environmental permit granted under regulation 13 of the Environmental Permitting (England and Wales) Regulations 2016 for the purposes of a flood risk activity;

• “main river” has the same meaning given in section 113 of the Water Resources Act 1991;

• “specified work” means any development authorised by this Order and carried out in relation to or which may affect any drainage work.

318

• (1) Subject to sub-paragraph (4) the undertaker must, for the duration of the construction of the specified work, as far as reasonably practicable maintain in good repair and condition and keep free from obstruction any part of any drainage work which is situated on land held or occupied by the undertaker for the purposes of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

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

• (3) If within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may undertake the works reasonably necessary for such compliance, subject to the undertaker having the reasonable opportunity to supervise the planning and execution of such works to the extent reasonably necessary to ensure they are compliant with and do not compromise the undertaker’s ability to comply with the Pipeline Safety Regulations 1996 and any expenditure reasonably and properly incurred by the Agency in so doing is recoverable from the undertaker. Notwithstanding the foregoing, the Agency may not under any circumstances undertake any works to the pipeline itself which would or would be likely to conflict with the duties and obligations of the undertaker under the Pipeline Safety Regulations 1996, any direction issued by the Health and Safety Executive under those regulations or any other health and safety legislation relating the operation and maintenance of the pipeline.

• (4) This paragraph does not apply to-

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

• (b) any obstruction of a drainage work expressly authorised in the approval of a flood risk activity permit and carried out in accordance with the provisions of that flood risk activity permit provided that any obstruction is removed as soon as reasonably practicable.

• (5) Where the authorised development involves the crossing of any watercourse by open cut trench installation, the use of a dam as part of such installation works shall not constitute an obstruction for the purpose of these provisions.

SCHEDULE 11 — Removal of hedgerows

PART 1 — Removal of hedgerows