The HyNet Carbon Dioxide Pipeline Order 2024

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

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

76

Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part (including the amount of the relevant costs reasonably incurred and mentioned in paragraph 76) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

77

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

78

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

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

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

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

79

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

80

The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 7 (benefit of Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

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

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

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

81

The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 44 (certification of plans) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a USB stick or download link.

PART 7 — For the protection of the Canal and River Trust

Interpretation

82

• (1) For the protection of the Canal & River Trust the following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the Canal & River Trust.

• (2) In this Part of this Schedule—

• “Code of Practice” means the Code of Practice for Works Affecting the Canal & River Trust (April 2022) or any updates or amendments thereto;

• “construction”, in relation to any specified work or protective work, includes— the execution and placing of that work; and any relaying, renewal, or maintenance of that work and “construct” and “constructed” have corresponding meanings;

• “Canal & River Trust’s network” means the Canal & River Trust’s network of waterways;

• “detriment” means any damage to the waterway or any other property of the Canal & River Trust caused by the presence of the authorised development and, without prejudice to the generality of that meaning, includes— any material obstruction of, or interference with, or hindrance or danger to, navigation or to any use of the waterway (including towing paths); the erosion of the bed or banks of the waterway, or the impairment of the stability of any works, lands or premises forming part of the waterway; the deposit of materials or the siltation of the waterway so as to damage the waterway; the pollution of the waterway; any significant alteration in the water level of the waterway, or significant interference with the supply of water thereto, or drainage of water therefrom; any harm to the ecology of the waterway (including any adverse impact on any site of special scientific interest comprised in the Canal & River Trust’s network); and any material interference with the exercise by any person of rights over Canal & River Trust’s network;

• “the engineer” means an engineer appointed by the Canal & River Trust for the purpose in question;

• “plans” includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction) and programmes;

• “practical completion” means practical completion of all of the specified work notwithstanding that items which would ordinarily be considered snagging items remain outstanding, and the expression “practically complete” and “practically completed” is to be construed accordingly;

• “protective work” means a work constructed under paragraph 86(3)(a);

• “specified work” means so much of any authorised development as defined in article 2(1) of this Order that is situated upon, across, under, over or within 15 metres of, or may in any way affect the waterway;

• “the waterway” means each and every part of the Shropshire Union Canal within the order limits, and any works, lands or premises belonging to the Canal & River Trust, or under its management or control, and held or used by the Canal & River Trust in connection with that canal in connection with its statutory functions.

Powers requiring the Canal & River Trust’s consent

83

• (1) The undertaker must not in the exercise of the powers conferred by this Order to materially obstruct or interfere with pedestrian or vehicular access to the waterway unless such obstruction or interference with such access is with the consent of the Canal & River Trust.

• (2) The undertaker must not exercise any power conferred by this Order to discharge water into the waterway under article 20 (discharge of water) or in any way interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of the Canal & River Trust, and such consent may be given subject to terms and conditions as the Canal & River Trust may reasonably impose, but must not be unreasonably withheld or delayed.

• (3) The undertaker must not exercise the powers conferred by article 22 (authority to survey and investigate the land) or section 11(3) of the 1965 Act, in relation to the Shropshire Union Canal unless such exercise is with the consent of the Canal & River Trust.

• (4) Articles 6(a) 6(b) and 6(d)(i) (limits of deviation) shall not apply in relation to the waterway unless in conducting such exercise the crown of any installed pipeline is at least 3.5 metres below the hard bed level of the waterway or otherwise with the consent of the Canal & River Trust.

• (5) The consent of the Canal & River Trust pursuant to sub-paragraphs (1) to (4) must not be unreasonably withheld or delayed.

• (6) This paragraph does not apply where the undertaker reasonably believes emergency works are required to prevent imminent injury or damage to persons or property. In such circumstances the Canal & River Trust must be notified as soon as reasonably practicable.

Fencing

84

• (1) Where so required by the engineer the undertaker must to the reasonable satisfaction of the engineer fence off a specified work or a protective work or take such other steps as the engineer may require to be taken for the purpose of separating a specified work or a protective work from the waterway, whether on a temporary or permanent basis or both.

• (2) Any fencing constructed under this provision shall not require any other consent from the Canal & River Trust for interferences or obstructions to access to their network under other provisions.

Survey of waterway

85

• (1) Before the commencement of the initial construction of any part of the specified works and again following practical completion of the specified works the undertaker must bear the reasonable and proper cost of the carrying out by a qualified engineer (the “surveyor”), to be approved by the Canal & River Trust and the undertaker, of a survey including a dip-survey to measure the depth of the waterway (“the survey”) of so much of the waterway and of any land and existing works of the undertaker which may provide support for the waterway as will or may be affected by the specified works.

• (2) For the purposes of the survey the undertaker must—

• (a) on being given reasonable notice (save in case of emergency, when immediate access must be afforded) afford reasonable facilities to the surveyor for access to the site of the specified works and to any land and existing works of the undertaker which may provide support for the waterway as will or may be affected by the specified works; and

• (b) supply the surveyor as soon as reasonably practicable with all such information as they may reasonably require and which the undertaker holds with regard to such existing works of the undertaker and to the specified works or the method of their construction.

• (3) The reasonable costs of the survey must include the costs of any dewatering or reduction of the water level of any part of the waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey and the provisions of this Part will apply with all necessary

• (4) modifications to any such dewatering or reduction in the water level as though the same were specified works.

• (5) Copies of the survey must be provided to both the Canal & River Trust and the undertaker at no cost to the Canal & River Trust.

Approval of plans, protective works etc.

86

• (1) The undertaker must before commencing construction of any specified work including any temporary works supply to the Canal & River Trust proper and sufficient plans of that work, on the Canal & River Trust forms or as otherwise agreed, having regard to the Canal & River Trust’s Code of Practice and such further particulars as the Canal and River Trust may within 10 working days of the initial submission of the plans reasonably require. Construction of a specified work must not commence until plans of that work have been approved in writing by the engineer or settled by arbitration.

• (2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed, and if within 30 working days after such plans (including any other particulars reasonably required under sub-paragraph (1)) have been received by the Canal & River Trust the engineer has not intimated their disapproval of those plans and the grounds of their disapproval the engineer is deemed to have approved the plans as submitted.

• (3) When signifying approval of the plans the engineer may specify, on land held or controlled by the Canal & River Trust or the undertaker and subject to such works being authorised by this Order or being development permitted by an Act of Parliament or general development order made under the 1990 Act—

• (a) any protective work (whether temporary or permanent) which in the reasonable opinion of the engineer should be carried out before the commencement of a specified work to prevent detriment; and

• (b) such other requirements as may be reasonably necessary to prevent detriment.

• (4) Any protective works required under this paragraph must be constructed by the undertaker or by the Canal & River Trust at the undertaker’s request as soon as practicable and the undertaker must not commence the construction of a specified work until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction with such consent not to be unreasonably withheld or delayed.

• (5) The undertaker must pay to the Canal & River Trust a capitalised sum representing the reasonably increased or reasonable additional cost of maintaining and, when necessary, renewing any specified works or permanent protective works provided under sub-paragraph (3) above, for which the Canal & River Trust is liable to maintain, and of carrying out any additional dredging of the waterway reasonably necessitated by the exercise of any of the powers under this Order. If the cost of maintaining the waterway, or of works of renewal of the waterway, is reduced in consequence of any such works, a capitalised sum representing such reasonable saving is to be set off against any sum payable by the undertaker to the Canal & River Trust under this paragraph.

• (6) In the event that the undertaker fails to complete the construction of, or part of, the specified works the Canal & River Trust may, if it is reasonably required in order to avoid detriment, serve on the undertaker a notice in writing requesting that construction be completed. Any notice served under this sub-paragraph must state the works that are to be completed by the undertaker and lay out a reasonable timetable for the works’ completion. If the undertaker fails to comply with this notice within 35 days, the Canal & River Trust may undertake protective works to make safe the area and avoid detriment, excluding any works to the pipeline itself, and the undertaker must reimburse the Canal & River Trust all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.

• (7) The undertaker and the Canal & River Trust must engage in good faith to agree the works and timeframe in the notice served under this paragraph prior to its service upon the undertaker.

Design of works

87

• (1) Without prejudice to its obligations under the foregoing provisions of this Part of this Schedule and subject to safety requirements and compliance with this Order the undertaker must engage in good faith and consult, collaborate and respond constructively to any reasonable approach, suggestion, proposal or initiative made by the Canal & River Trust in respect of works that materially affect the Canal & River Trust’s network on—

• (a) the design and appearance of the specified works; and

• (b) the environmental effects of those works, having regard to such views as may be expressed by the Canal & River Trust in response to such consultation pursuant in particular to the requirements imposed on the Canal & River Trust by section 22 (general environmental and recreational duties) of the British Waterways Act 1995 and to the interest of the Canal & River Trust in preserving and enhancing the environment of its waterways; and

• (c) amendments or alterations to the CEMP (as may be approved pursuant to paragraph 5 of Part 1 of Schedule 2) in respect of a specified work or a protective work or otherwise in connection therewith; and

• (d) any draft CTMP and/or any draft LEMP relating to a stage which contains a specified work;

Notice of works

88

The undertaker must give to the engineer 30 days’ notice of its intention to commence the construction of any of the specified works or protective works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable so that, in particular, the Canal & River Trust may where appropriate arrange for the publication of notices bringing those works to the attention of users of the Canal & River Trust’s network.

Construction of specified works

89

• (1) Any specified works or protective works must, when commenced, be constructed—

• (a) as soon as reasonably practicable in accordance with the plans approved or deemed to have been approved or settled as aforesaid and with any specifications made under paragraphs 86 (approval of plans) and 87 (design of works) of this Part;

• (b) under the supervision (if given) of the engineer;

• (c) in such manner as to cause as little detriment to the waterway as is reasonably practicable;

• (d) in such manner as to cause as little inconvenience as is reasonably practicable to the Canal & River Trust, its officers and agents and all other persons lawfully using the waterways, except to the extent that temporary obstruction has otherwise been agreed by the Canal & River Trust; and

• (e) in such a manner as to reasonably ensure that no materials other than water are discharged or deposited into the waterway (subject always to paragraph 83(2) above); and

• (f) in compliance with the Code of Practice where relevant;

• (2) Nothing in this Order authorises the undertaker to make or maintain any permanent works in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which the Canal & River Trust is required by section 105(1)(b) and (2) of the Transport Act 1968⁴⁸ (to maintain the waterway.

• (3) Following the completion of the construction of the specified works the undertaker must restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of those works unless otherwise agreed between the undertaker and the Canal & River Trust.

• (4) In assessing whether the condition of the waterway is no less satisfactory than immediately prior to the works pursuant to sub-paragraph (3), the Canal & River Trust and the undertaker must take account of any survey issued pursuant to paragraph 85 (survey of waterway) and any other information agreed between them pursuant to this Part.

Prevention of pollution

90

The undertaker must not in the course of constructing a specified work or a protective work or otherwise in connection therewith do or permit anything which is reasonably foreseeable to result in the pollution of the waterway or the deposit of materials therein and must take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph.

Access to work – provision of information

91

• (1) The undertaker on being given reasonable notice must—

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

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

• (2) The Canal & River Trust on being given reasonable notice must—

• (a) at all reasonable times afford reasonable facilities to the undertaker and its agents for access to any works carried out by the Canal & River Trust under this Part during their construction; and

• (b) supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them and the undertaker must reimburse the Canal & River Trust’s reasonable costs in relation to the supply of such information.

Alterations to the waterway

92

• (1) If during the construction of a specified work or a protective work or during a period of twenty four (24) months after the completion of those works any alterations or additions, either permanent or temporary, to the waterway are reasonably necessary in consequence of the construction of the specified work or the protective work in order to avoid detriment, and the Canal & River Trust gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to the Canal & River Trust the reasonable costs of those alterations or additions including, in respect of any such alterations or additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by the Canal & River Trust in maintaining, working and, when necessary, renewing any such alterations or additions.

• (2) If the cost of maintaining, working or renewing the waterway is reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be set off against any sum payable by the undertaker to the Canal & River Trust under this paragraph.

• (3) For the avoidance of doubt, while the Canal & River Trust may undertake works under this paragraph, including works required to make safe the area, the Canal & River Trust may not undertake any works to the pipeline, or works that may endanger the pipeline, itself under this paragraph.

Maintenance of works

93

If at any time after the completion of a specified work or a protective work, not being a work vested in the Canal & River Trust, the Canal & River Trust gives notice to the undertaker informing it that it reasonably considers that the state of maintenance of the specified work or protective work appears to be such that the work is causing or likely to cause detriment, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put the work in such state of maintenance as not to cause such detriment.

Repayment of the Canal & River Trust’s fees, etc.

94

The undertaker must repay to the Canal & River Trust in accordance with the Code of Practice all fees, costs, charges and expenses reasonably incurred by the Canal & River Trust—

• (a) in constructing any protective works reasonably required under the provisions of paragraph 86(3)(a);

• (b) in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction or repair of a specified work and any protective works;

• (c) in respect of the employment during the construction of the specified works or any protective works of any inspectors, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, watching and lighting any waterway and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works or any protective works;

• (d) in bringing the specified works or any protective works to the notice of users of the Canal & River Trust’s network; and

• (e) in constructing and/or carrying out any measures related to any specified works or protective works which are reasonably required by the Canal & River Trust to ensure the safe navigation of the waterway save that nothing is to require the Canal & River Trust to construct and/or carry out any measures.

Making good of detriment; compensation and indemnity, etc.

95

• (1) If any detriment is caused by the construction or failure of the specified works or the protective works if carried out by the undertaker, the undertaker (if so required by the Canal & River Trust) must make good such detriment and must pay to the Canal & River Trust all reasonable expenses properly incurred by the Canal & River Trust, and compensation for any loss sustained by the Canal & River Trust in making good or otherwise by reason of the detriment, provided that at all times Canal & River Trust will be under an obligation to take reasonable steps to mitigate its loss, and always excluding any consequential loss or indirect losses.

• (2) The undertaker must be responsible for and make good to the Canal & River Trust all costs, charges, damages, expenses and losses not otherwise provided for in this Part which may be occasioned to and reasonably incurred by the Canal & River Trust—

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

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

and subject to sub-paragraph (4) the undertaker must effectively indemnify and hold harmless the Canal & River Trust from and against all claims and demands arising out of or in connection with any of the matters referred to in sub-paragraphs (a) and (b), provided that at all times Canal & River Trust will be under an obligation to take reasonable steps to mitigate its loss, and always excluding any consequential loss or indirect loss.

• (3) The fact that any act or thing may have been done by the Canal & River Trust on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision or in accordance with any directions or awards of an arbitrator is not to (if it was done without negligence on the part of the Canal & River Trust or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this paragraph.

• (4) Nothing in sub-paragraph (2) imposes any liability on the undertaker with respect to any detriment, damage, loss or interruption to the extent that it is attributable to the act, neglect or default of the Canal & River Trust, its officers, servants, contractors or agents.

• (5) The Canal & River Trust must give the undertaker reasonable notice of any such claim or demand as aforesaid and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

Arbitration

96

Any difference arising between the undertaker and the Canal & River Trust under this Part (other than a difference as to the meaning or construction of this Part) must be referred to and settled by arbitration in accordance with article 47 (arbitration) of this Order.

Capitalised sums

97

Any capitalised sum which is required to be paid under this Part must be calculated by multiplying the reasonable cost of the maintenance or renewal works to the waterway necessitated as a result of the operation of the authorised development by the number of times that the maintenance or renewal works will be required during the operation of the authorised development.

PART 8 — For the protection of SP Manweb

Application

98

The following provisions have effect for the protection of SP Manweb unless otherwise agreed in writing between the undertaker and SP Manweb.

Interpretation

99

In this Part of this Schedule—

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

• “apparatus” means electric lines or electrical plant as defined in the 1989 Act, belonging to or maintained by SP Manweb together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of SP Manweb for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

• “authorised development” has the same meaning as is given to the term “authorised development” in article 2(1) of this 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 in article 2 of this Order and commencement must be construed to have the same meaning;

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

• “functions” includes powers and duties;

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

• “maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of SP Manweb including construct, use, repair, alter, inspect, renew or remove the apparatus;

• “non-intrusive works” means any of the authorised development or activities undertaken in association with the authorised development which will or may be situated underneath electrical lines, or otherwise within 15 meters (measured in any direction) of any apparatus the removal of which has not been required by the undertaker under paragraph 102(2) or otherwise, but which: is situated further than 15 meters from any electrical plant or electricity tower foundations the removal of which has not been required by the undertaker under paragraph 102(2) or otherwise; and is not reasonably likely to adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 102(2) or otherwise;

• “plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

• “protective works” means the underpinning, strengthening and any other works the purpose of which is to prevent damage that may be caused by the carrying out, maintenance or use of the authorised development;

• “SP Manweb” means SP Manweb PLC (Company No. 02366937) whose registered office is at 3 Prenton Way, Prenton, CH43 3ET or any successor company;

• “specified works” means any of the authorised development or activities undertaken in association with the authorised development which: will or may be situated over, or within 15 metres (measured in any direction) of any apparatus the removal of which has not been required by the undertaker under paragraph 102(2) or otherwise; is reasonably likely to adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 102(2) or otherwise; and/or include any of the activities that are referred to in SP Manweb’s polices for development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

On Street Apparatus

100

Except for paragraphs 104, 105 and 106 of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of SP Manweb, the other provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and SP Manweb are regulated by the provisions of Part 3 of the 1991 Act.

Acquisition of land

101

• (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire or take temporary possession of any land interest of SP Manweb or appropriate, acquire, extinguish, interfere with or override any easement or other interest or right and/or apparatus of SP Manweb otherwise than by agreement (such agreement not to be unreasonably withheld or delayed).

• (2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised development (or in such other timeframe as may be agreed between SP Manweb and the undertaker) that are subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement and/or other legal or land interest of SP Manweb and/or affects the provisions of any enactment or agreement regulating the relations between SP Manweb and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as SP Manweb reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between SP Manweb and the undertaker acting reasonably and which must be no less favourable on the whole to SP Manweb unless otherwise agreed by SP Manweb, 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 authorised development.

• (3) Where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by SP Manweb and/or other enactments relied upon by SP Manweb as of right or other use in relation to the apparatus, then the provisions in this Schedule must prevail.

• (4) No agreement or consent granted by SP Manweb under any other paragraph of this Part of this Schedule constitutes agreement under sub-paragraph (1).

Removal of apparatus

102

• (1) If, in the exercise of the agreement reached in accordance with paragraph 101 or in any other authorised manner, including in the exercise of powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of SP Manweb to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of SP Manweb in accordance with sub-paragraph (2) to (5) inclusive.

• (2) If, for the purpose of executing any specified works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to SP Manweb at least 56 days’ advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order SP Manweb reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), secure any necessary consents for the alternative apparatus and afford to SP Manweb to its satisfaction (taking into account paragraph 105(1) below) the necessary facilities and rights—

• (a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and

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

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, SP Manweb must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such position as may be agreed between SP Manweb and the undertaker.

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

• (6) Where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus/including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by SP Manweb and/or other enactments relied upon by SP Manweb as of right or other use in relation to the apparatus, then the provisions in this Schedule must prevail.

Facilities and rights for alternative apparatus

103

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

• (2) If the facilities and rights to be afforded by the undertaker and agreed with SP Manweb under sub-paragraph (1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to SP Manweb 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 in the matter will be referred to arbitration in accordance with paragraph 110 of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to SP Manweb as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. In respect of the appointment of an arbitrator under this sub-paragraph, article 49 (arbitration) applies.

Retained apparatus: Protection of SP Manweb as Electricity Undertaker

104

• (1) Not less than 56 days before the commencement of any specified works, the undertaker must submit to SP Manweb a plan of the works to be executed and seek from SP Manweb details of the underground extent of their electricity tower foundations.

• (2) In relation to specified works which will or may be situated on, over, under or within (i) 15 metres measured in any direction of any apparatus, or (ii) involve embankment works within 15 metres of any apparatus, the plan to be submitted to SP Manweb under sub-paragraph (1) must include a method statement and describe—

• (a) the exact position of the specified works;

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

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

• (d) the position of all apparatus;

• (e) by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and

• (f) any intended maintenance regimes.

• (3) In relation to any specified works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity support or between any two or more adjacent electricity supports which are within the Order limits or within 10 metres of the Order limits, the plan to be submitted under sub-paragraph (1) must include a method statement which, in addition to the matters set out in sub-paragraph (2), must—

• (a) describe details of any pipeline trench design including route, dimensions, clearance to support foundations;

• (b) demonstrate that support foundations will not be affected prior to, during and post construction;

• (c) describe load bearing capacities of trench supporting structures;

• (d) describe details of any pipeline installation methodology including access arrangements, jointing bays and backfill methodology;

• (e) provide a written management plan for high voltage hazard during construction and ongoing maintenance of the pipeline corridor;

• (f) provide written details of the operations and maintenance regime for the pipeline, including frequency and method of access;

• (g) provide an assessment of earth rise potential if reasonably required by SP Manweb’s engineers;

• (h) provide evidence that trench bearing capacity is to be designed to 26 tonnes to take the weight of overhead line construction traffic.

• (4) The undertaker must not commence any works to which sub-paragraph (2) or (3) applies until SP Manweb has given written approval of the plan so submitted provided that SP Manweb must not unreasonably delay notification of its approval or disapproval.

• (5) Any approval of SP Manweb required under sub-paragraph (2)—

• (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and,

• (b) must not be unreasonably withheld or delayed.

• (6) If after the expiry of 56 days SP Manweb has not communicated approval or disapproval, SP Manweb is deemed to have approved the plans as supplied.

• (7) In relation to any work requiring the submission of a plan under sub-paragraph (1), SP Manweb may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus and SP Manweb must notify the undertaker of such modifications within a period of 56 days beginning with the date on which the plan required under sub-paragraph (1) has been submitted to SP Manweb.

• (8) Works requiring the submission of a plan under sub-paragraph (1) must only be executed in accordance with the plan as approved or as amended from time to time by agreement between the undertaker and SP Manweb and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5), (7), (9) or (10) by SP Manweb for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and SP Manweb will be entitled to watch and inspect the execution of those works.

• (9) Where SP Manweb reasonably requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to SP Manweb’s reasonable satisfaction prior to the commencement of any relevant part of the authorised development for which protective works are required and SP Manweb must give notice of its requirement for such works within 56 days from the date of submission of a plan pursuant to sub-paragraph (1) or (7) (except in an emergency).

• (10) If SP Manweb in accordance with sub-paragraphs (7) or (9) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (1) to (3) and (5) to (8) apply as if the removal of the apparatus had been required by the undertaker under paragraph 102(2).

• (11) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph must apply to and in respect of the new plan.

• (12) The undertaker must not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to SP Manweb notice as soon as is reasonably practicable and a plan of those works and must—

• (a) comply with sub-paragraphs (7), (8) and (9) insofar as is reasonably practicable in the circumstances; and

• (b) comply with sub-paragraph (13) at all times.

• (13) At all times when carrying out any works authorised under the Order, the undertaker must comply with statutory requirements and guidelines for development near overhead lines EN43-8, HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”, and any other appropriate guidance in relation to any apparatus and aligning with SP Manweb guidelines.

• (14) Not less than 56 days before the commencement of any non-intrusive works, the undertaker must notify and submit to SP Manweb a plan of the works to be executed, noting that approval of plans for non-intrusive works is not required.

Expenses

105

• (1) Subject to the following provisions of this paragraph, the undertaker must pay to SP Manweb within 30 days of receipt of an itemised invoice or claim from SP Manweb all reasonable charges, costs and expenses reasonably and properly incurred by SP Manweb in the execution of any authorised development, always excluding any consequential loss or indirect loss, and including without limitation in respect of—

• (a) any costs reasonably and properly incurred by or compensation properly paid by SP Manweb in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by SP Manweb as a consequence of SP Manweb;

• (i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 102(3); and/or

• (ii) exercising any compulsory purchase powers in the Order transferred to or benefitting SP Manweb;

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

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

• (d) the approval of plans;

• (e) the carrying out of reasonable protective works (including any reasonable temporary protective works and their removal);

• (f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.

• (2) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 110 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to SP Manweb by virtue of sub-paragraph (1) will be reduced by the amount of that excess.

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

• (a) an extension of apparatus to a length greater than the length of existing apparatus will 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 pipe is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will be treated as if it also had been agreed or had been so determined.

• (5) An amount which apart from this sub-paragraph would be payable to SP Manweb in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on SP Manweb any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Indemnity

106

• (1) Subject to sub-paragraphs (2) and (3), if by reason of the construction of any such works authorised by this Part of this Schedule or of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the undertaker or of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of SP Manweb, or if there is any interruption in any service provided, or in the supply of any goods by SP Manweb, or SP Manweb becomes liable to pay any amount to any third party, the undertaker must—

• (a) bear and pay on demand accompanied by an invoice or claim and associated itemised accounting from from SP Manweb the cost reasonably and properly incurred by SP Manweb in making good such damage or restoring the supply; and

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

always excluding any consequential loss or indirect loss and provided that at all times SP Manweb will be under an obligation to take reasonable steps to mitigate its loss.

• (2) The fact that any act or thing may have been done by SP Manweb on behalf of the undertaker or in accordance with a plan approved by SP Manweb or in accordance with any requirement of SP Manweb as a consequence of the authorised development or under its supervision does not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this paragraph where the undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and workmanlike manner or in a manner that does not materially accord with the approved plan (or as otherwise agreed between the undertaker and SP Manweb pursuant to paragraph 105).

• (3) Nothing in sub-paragraph (1) will impose any liability on the undertaker in respect of-

• (a) any damage or interruption to the extent that it is attributable to the neglect or default of SP Manweb, its officers, employees, contractors or agents;

• (b) any authorised development and/or any other works authorised by this Part of this Schedule carried out by SP Manweb as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the 2008 Act or article 7 (benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised development yet to be executed and not falling within this sub-paragraph 3(b) will be subject to the full terms of this Part of this Schedule including this paragraph in respect of such new apparatus; and / or

• (c) any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption.

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

Enactments and agreements

107

Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between SP Manweb and the undertaker, nothing in this Part of this Schedule will affect the provisions of any enactment or agreement regulating the relations between the undertaker and SP Manweb in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Co-operation

108

• (1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or SP Manweb requires the removal of apparatus under paragraph 102(2) or SP Manweb makes requirements for the protection or alteration of apparatus under paragraph 104, the undertaker must use all reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of SP Manweb’s undertaking and SP Manweb must use all reasonable endeavours to co-operate with the undertaker for that purpose.

• (2) For the avoidance of doubt whenever SP Manweb’s consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by SP Manweb is required, it must not be unreasonably withheld or delayed.

Access

109

If in consequence of the agreement reached in accordance with paragraph 101(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable SP Manweb to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

110

Save for differences or disputes arising under paragraphs 102(2), 102(4), 103(1) and 104 any difference or dispute arising between the undertaker and SP Manweb under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and SP Manweb, determined by arbitration in accordance with article 47 (arbitration).

Notices

111

Notwithstanding article 45 (service of notices), any plans submitted to SP Manweb by the undertaker pursuant to this Part must be sent to such address as SP Manweb may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 9 — Protection of CF Fertilisers UK Limited

112

The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and CF Fertilisers.

113

In this Part—

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

• “CF Fertilisers” means CF Fertilisers UK Limited (company number 03455690), whose registered office is at Head Office Building, Ince, Chester, Cheshire, United Kingdom, CH2 4LB and any associated company of CF Fertilisers UK Limited which holds relevant property;

• “relevant property” means—any land, works, apparatus and equipment belonging to CF Fertilisers; andany easement or other property interest held or used by CF Fertilisers or a tenant or licensee of CF Fertilisers for the purposes of such land, works, apparatus or equipment.

Rights of access

114

Regardless of any provision of this Order or anything shown on the land plans, the undertaker-

• (a) must not extinguish any rights of access to the relevant property granted to CF Fertilisers otherwise than by agreement (both parties acting reasonably);

• (b) must provide a minimum of two working days notification prior to entry to the relevant property; and

• (c) must keep any existing roads used for access to the relevant property by CF Fertilisers clear from obstruction as far as reasonably practicable.

Expenses

115

Nothing in this Part imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of CF Fertilisers or its servants, contractors or agents or any liability on CF Fertilisers with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

116

The undertaker must pay to CF Fertilisers all reasonable and proper costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (but always excluding any consequential loss or indirect loss) which may be reasonably incurred by CF Fertilisers in respect of any damage caused to or additional maintenance required to relevant property as a direct result of the construction of the authorised development.

117

• (1) Notwithstanding anything to the contrary in this Part of this Schedule, the undertaker shall not be liable for any consequential loss or indirect loss suffered by CF Fertilisers as a result of the construction of the authorised development and CF Fertilisers shall not be liable for any consequential loss or indirect loss suffered by the undertaker as a result of the construction of the authorised development.

• (2) CF Fertilisers must-

• (a) give the undertaker reasonable written notice of any such sums referred to in paragraph 116 as soon as reasonably possible after CF Fertilisers become aware of the same;

• (b) not make any offers to settle claims or demands without the prior consent of the undertaker;

• (c) take all reasonable steps to mitigate any liabilities; and

• (d) keep the undertaker informed and have regard to the undertaker’s representations in relation to any such sums referred to in paragraph 116.

PART 10 — For the protection of Wales and West Utilities

118

For the protection of Wales and West Utilities as referred to in this part of this Schedule the provisions of this Part have effect unless otherwise agreed in writing between the undertaker and Wales and West Utilities.

119

In this Part—

• “alternative apparatus” means alternative apparatus adequate to enable Wales and West Utilities to fulfil its statutory functions in a manner no less efficient than previously;

• “apparatus” means all mains, pipes or other apparatus belonging to or maintained by Wales and West Utilities for the purposes of carrying out its statutory undertaking and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “authorised development” has the same meaning as in article 2 (interpretation) of this Order and (unless otherwise specified) for the purposes of this Schedule shall include associated development and the construction, use, maintenance and decommissioning of the authorised development and the construction of any authorised development;

• “functions” includes powers and duties;

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

• “plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;

• “protective works” means the underpinning, strengthening and any other works the purpose of which is to prevent damage that may be caused by the carrying out, maintenance or use of the authorised development;

• “security infrastructure” includes cameras, perimeter fencing, fencing and gates and any other security measures required in order to ensure an appropriate level of security in respect of the authorised development or any apparatus;

• “specified work” means so much of any of the works comprised in the authorised development or activities undertaken in association with the authorised development which:are in, on or under any land purchased, leased, held, appropriated or used under this Order that are within 15 metres of, or will or may in any way affect, any apparatus the removal of which is not required under paragraph 123 of this Part of this Schedule; and/orwill or may be situated within 4 metres measured in any direction of any security infrastructure belonging to or maintained by Wales and West Utilities;

• “WWU standards” means Wales and West Utilities Limited specification for safe working in the vicinity of pipelines and associated installations operating above 2 barg – requirements for third parties (SSW22) and Plant Protection General Conditions; and

• “Wales and West Utilities” means Wales and West Utilities Limited (Company No. 05046791) whose registered office is at Wales & West House, Spooner Close Coedkernew, Newport, South Wales, NP10 8FZ and includes any successor in title or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986.

Apparatus in streets

120

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

121

Regardless of the temporary prohibition or restriction of use of public rights of way or streets under the powers conferred by article 13 (temporary restriction of public right of way) and 15 (temporary restriction of use of streets), Wales and West Utilities is at liberty at all times to take all reasonably necessary access across any such public right of way or street and to execute and do all such works and things in upon or under any such public right of way or street as may be reasonably necessary to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that public right of way or street.

Acquisition of land

122

Regardless of any provision of this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker must not (a) appropriate or acquire or take temporary possession of apparatus or (b) appropriate, acquire or extinguish interfere with or override any easement, other interest or right and/or apparatus any apparatus belonging to or maintained by Wales and West Utilities otherwise than by agreement, provided that such agreement is not unreasonably delayed or withheld.

Removal of apparatus

123

• (1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 118, the undertaker acquires any interest in, on or under any land in which any apparatus is placed or over which access is enjoyed and requires Wales and West Utilities’ apparatus is relocated or diverted, that apparatus must not be decommissioned or removed under this Part, and any right of Wales and West Utilities to maintain that apparatus in that land and to gain access to it must not be extinguished or interfered with until alternative apparatus has been constructed and is in operation and the facilities and rights referred to in sub-paragraph (2) to the reasonable satisfaction of Wales and West Utilities.

• (2) If, for the purpose of executing any works in, on or under any land purchased, leased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to Wales and West Utilities at least 28 days’ written notice of that requirement, together with a plan, description, risk assessment method statement and section drawing of the work proposed which complies with WWU standards, and of the proposed position of the alternative apparatus to be provided or constructed; and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Wales and West Utilities reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Wales and West Utilities the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of and access to that apparatus and any appropriate working areas.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, Wales and West Utilities must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part must be constructed in such manner and in such line or situation as may be agreed between Wales and West Utilities and the undertaker or in default of agreement settled by arbitration in accordance with article 47 (arbitration).

• (5) Wales and West Utilities must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 47 (arbitration), and after the grant to Wales and West Utilities of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove or decommission any apparatus required by the undertaker to be removed or decommissioned under the provisions of this Part.

Facilities and rights for alternative apparatus

124

• (1) Where, in accordance with the provisions of this Part, the undertaker affords to Wales and West Utilities facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed or decommissioned, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Wales and West Utilities or in default of agreement settled by arbitration in accordance with article 47 (arbitration).

• (2) In settling those 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;

• (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 project for which the alternative apparatus is to be substituted; and

• (c) avoid any unreasonable adverse impact on Wales and West Utilities’ operations or apparatus.

• (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 less favourable on the whole to Wales and West Utilities than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to Wales and West Utilities as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

125

• (1) Not less than 42 days before starting the execution of any specified works in, on or under any land purchased, leased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 123(2), the undertaker must submit to Wales and West Utilities a plan, section drawing, description of the works to be executed and a risk assessment method statement which comply with WWU standards.

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