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The HyNet Carbon Dioxide Pipeline Order 2024

Type Statutory-Instrument

Publication 2024-03-20

Last updated 2024-10-16

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(12) 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 will apply to and in respect of the new plan.

(13) The undertaker will 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 UKOP notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (8), (9) and (10) insofar as is reasonably practicable in the circumstances and comply with sub-paragraph (14) at all times.

(14) At all times when carrying out any works authorised under the Order the undertaker must ensure that all works comply with:

(a) Linewatch’s Booklet for Special Requirements for safe working in close proximity to high pressure pipelines (rev23.03; and

(b) Linesearch Before U Dig (LinesearchbeforeUdig Safety Practices - LinesearchbeforeUdig (lsbud.co.uk)); and

(d) The Pipeline Safety Regulations 1996; and

(e) The Pipe-lines Act 1962;

(all as updated or replaced from time to time).

(15) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker must implement an appropriate ground mitigation scheme save that UKOP retains the right to carry out any further reasonably necessary protective works for the safeguarding of its apparatus and can recover any such reasonable costs in line with paragraph 160 (Expenses and costs).

Expenses and costs

162

(1) Save where otherwise agreed in writing between UKOP and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to UKOP within 25 days of receipt of an itemised invoice or claim from UKOP all charges, costs and expenses (including legal expenses) reasonably and properly incurred by UKOP in, pursuant to, or in connection with these protective provisions, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—

(a) any costs and expenses (including but not limited to reasonable legal expenses) reasonably incurred by or compensation properly paid by UKOP in connection with the acquisition, variation or grant of any rights or the exercise of any statutory powers in respect of such apparatus;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(d) the approval of plans;

(e) the carrying out of reasonably required protective works, plus a capitalised sum to cover the reasonable cost of maintaining and renewing permanent protective works;

(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 for the execution of any such works referred to in this Part of this Schedule; or

(g) any costs and expenses (including but not limited to legal expenses) reasonably incurred in assisting the undertaker to procure and/or secure any consent and entering into of any deeds and/or variations by other third parties required in connection with this Part of this Schedule, save that for the avoidance of any doubt—

(i) the undertaker be directly responsible for the payment of all third party costs and expenses where the undertaker is a party to any such deeds or variations; and

(ii) where the undertaker is not a party to such deeds or variations, or where a consent is procured or secured by UKOP, UKOP and the undertaker shall, acting reasonably and without unreasonable delay, agree the amount of third party costs and expenses that can be paid by UKOP to the third party and recovered from the undertaker under this paragraph 162(1).

(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 166 (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 UKOP by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

(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 or cable 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) Any amount which apart from this sub-paragraph would be payable to UKOP in respect of works by virtue of sub-paragraph (1) will, 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 UKOP 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.

(6) Subject to sub-paragraph (2), if by reason or in consequence of the construction of the authorised works (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) on property of UKOP, or there is any interruption in any service provided, or in the supply of any goods, by UKOP, the undertaker must:

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

(b) make reasonable compensation for any other expenses, loss, damages, penalty or costs incurred by UKOP,

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

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

(8) UKOP must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker and, if such consent is withheld, the undertaker has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Miscellaneous

163

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

Co-operation

164

(1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or UKOP requires the removal of apparatus under paragraph 159(2) or UKOP makes requirements for the protection or alteration of apparatus under paragraph 160, the undertaker must use reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of UKOP’s undertaking and UKOP must use reasonable endeavours to co-operate with the undertaker for that purpose including using reasonable endeavours (at the undertaker’s cost) to assist the undertaker to procure and/or secure any consent and entering into of any deeds and/or variations by other third parties required in connection with this Part of this Schedule.

(2) For the avoidance of doubt whenever UKOP’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 the undertaker, it must not be unreasonably withheld or delayed.

Access

165

If in consequence of the agreement reached in accordance with paragraph 158(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 UKOP to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

166

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

Notices

167

Notwithstanding article 45 (service of notices), any plans submitted to UKOP by the undertaker pursuant to this Part must be sent to the then Company Secretary of UKOP at its then current registered addressor such other address as UKOP may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Deviation of authorised development

168

Notwithstanding article 5 of the Order (Power to maintain the authorised development) the undertaker is not permitted to install or deviate vertically the authorised works to a limit less than 2.5 metres below the surface of the ground and no closer than 600mm provided that where directional drilling methods are to be used this minimum distance shall be increased to a 1.5 metre clearance from the apparatus.

PART 14 — For the protection of PEEL NRE Limited

169

The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Peel and, in the case of paragraph 183 of this Schedule any other person on whom rights or obligations are conferred by that paragraph.

170

In this Part of this Schedule—

“alternative access road(s)” means the existing access road at Plots 1-01a and 1-01 as identified on the Land Plans and the access road proposed to be constructed by Peel to connect Plot 1-01a to Plot 1-04 as identified on the Land Plans D2.2 Sheet 1 pursuant to planning application Ref: 23/01239/FUL for construction of gas fired electricity generators, enclosures with ancillary equipment, metering station, transformer compound and access from Grinsome Road;

“existing access road” means the existing access road over Plot 1-01 as identified on the Land Plans;

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

“CEMP” means Construction Environmental Management Plan;

“CTMP” means Construction Traffic Management Plan;

“LEMP” means Landscaping Environmental Management Plan;

“DEMP” means Decommissioning Environmental Management Plan;

“Network Rail Standard” means Network Rail Standard reference ‘NR/L2/CIV/044 ‘Planning, Design and Construction of Undertrack Crossings’;

“Peel” means Peel NRE Limited (company number 04480419), whose registered office is at Venus Building, 1 Old Park Lane, Traffordcity, Manchester, M41 7HA and any associated company of Peel NRE Limited which holds property;

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

“relevant property” means: any land, works, apparatus and equipment belonging to Peel; and any easement or other property interest held or used by Peel or a tenant or licensee of Peel for the purposes of such land, works, apparatus or equipment;

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

“working days” Monday to Friday inclusive but excluding days which are public holidays.

171

(1) Where Peel is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld or delayed but may be given subject to reasonable conditions. If by the end of the period of 30 working days beginning with the date on which consent is requested Peel has not intimated their refusal together with the grounds of any such refusal, Peel will be deemed to have given its consent.

(2) In the event that Peel constructs and makes available for use by the undertaker the alternative access road the undertaker must not—

(a) commence that part of Work No. 3 to which the existing access road relates;

(b) use the existing access road; or

provided that Peel has granted the undertaker a right to pass and repass over the alternative access road with or without vehicles.

172

(1) The undertaker must before commencing construction of any specified work supply to Peel proper and sufficient plans of that work for the reasonable approval of Peel and the specified work must not be commenced except in accordance with such plans as have been approved in writing by Peel or settled by arbitration under article 49 (arbitration).

(2) The approval of Peel under sub-paragraph (1) must not be unreasonably withheld or delayed, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Peel and Peel has not intimated their disapproval together with the grounds of any such disapproval of those plans, Peel will be deemed to have approved the plans as submitted.

173

(1) Any specified work must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 172;

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

(2) If any damage to relevant property or any such interference or obstruction is caused by the carrying out of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Peel all reasonable and proper expenses to which Peel may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction provided that the undertaker shall only be liable up to a maximum of £20,000,000.

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

174

(1) The undertaker must pay to Peel all reasonable and proper costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be reasonably incurred by Peel —

(a) by reason of the construction, maintenance or operation of a specified 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 a specified work;

and the undertaker must indemnify and keep indemnified Peel from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission provided that the undertaker shall only be liable up to a maximum limit of £20,000,000.

(2) Peel must –

(a) give the undertaker reasonable written notice of any such sums referred to in sub-paragraph (1) as soon as reasonably possible after Peel become aware of the same;

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

(d) keep the undertaker informed and have regard to the undertaker’s representations in relation to any such sums referred to in sub-paragraph (1).

175

(1) The undertaker must consult with Peel prior to submitting any CTMP relating to or in the vicinity of relevant property (including any CTMP affecting land adjacent to relevant property) to the relevant planning authority for approval in accordance with Requirement 6. The undertaker will provide a draft CTMP to Peel no later than 25 working days prior to submission and confirm to Peel the intended date of submission at the same time. Peel may make representations on the draft CTMP to the undertaker no later than 10 working days prior to the notified intended date of submission. The undertaker will only be required to have due regard to any representations timeously made by Peel in accordance with the timescales stipulated in this paragraph in finalising the CTMP for submission and will seek to incorporate any reasonable requests made by Peel where practicable.

(2) The undertaker must consult with Peel prior to submitting any LEMP relating to or in the vicinity of relevant property (including any LEMP affecting land adjacent to relevant property) to the relevant planning authority for approval in accordance with Requirement 11. The undertaker will provide a draft LEMP to Peel no later than 25 working days prior to submission and confirm to Peel the intended date of submission at the same time. Peel may make representations on the draft LEMP to the undertaker no later than 10 working days prior to the notified intended date of submission. The undertaker will have due regard to any representations made by Peel in finalising the LEMP for submission and will seek to incorporate any reasonable requests made by Peel where practicable.

(3) The undertaker must consult with Peel prior to submitting any CEMP relating to or in the vicinity of relevant property (including any CEMP affecting land adjacent to relevant property) to the relevant planning authority for approval in accordance with Requirement 5. The undertaker will provide a draft CEMP to Peel no later than 25 working days prior to submission and confirm to Peel the intended date of submission at the same time. Peel may make representations on the draft CEMP to the undertaker no later than 10 working days prior to the notified intended date of submission. The undertaker will have due regard to any representations made by Peel in finalising the CEMP for submission and will seek to incorporate any reasonable requests made by Peel where practicable.

(4) The undertaker must consult with Peel prior to submitting any DEMP relating to or in the vicinity of relevant property (including any DEMP affecting land adjacent to relevant property) to the relevant planning authority for approval in accordance with Requirement 19. The undertaker will provide a draft DEMP to Peel no later than 25 working days prior to submission and confirm to Peel the intended date of submission at the same time. Peel may make representations on the draft DEMP to the undertaker no later than 10 working days prior to the notified intended date of submission. The undertaker will have due regard to any representations made by Peel in finalising the LEMP for submission and will seek to incorporate any reasonable requests made by Peel where practicable.

176

The undertaker will procure that in carrying out Work No. 4 at Plots 1-19, 1-20, 1-22, 1-23 and 1-24, as identified on the Land Plans, the Network Rail Standard (as in force when the works are being carried out) shall be complied with.

PART 15 — Protection of Encirc Limited

177

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

178

In this Part—

“Ash Road bridge” means the rail bridge crossing Ash Road;

“COMAH Regulations” means the Control of Major Accident Hazards Regulations 2015;

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

“CTS Meetings” means construction and traffic scheduling meetings to discuss a schedule in relation to the co-ordination of traffic movements relating to the specified works.

“Encirc” means Encirc Limited (company number NI030990, whose registered office is at 11 Gortahurk Road, Tonymore Derrylin, Enniskillen, Fermanagh, BT92 9DD and any associated company of Encirc Limited which holds property;

“Encirc’s business and operations” means the current operations and business carried out at the Encirc site and also includes any future business and operations of the Encirc site once the future development works have been implemented;

“Fence” means the existing fence erected by Encirc along the boundary between plots 1-02 and 1-06 as identified on the Land Plans;

“fit for purpose” means a road or access route which is of a standard equivalent to or better than the standard of the road or access route included in the Order for the same purpose;

“future development works” means;construction of automated warehouse including automated link to glass manufacturing and filling facility, ancillary office space, driver welfare building, security building, HGV parking and marshalling yard and other associated works (LPA Ref: 22/03693/FUL) or any variation to or alternative to that form of development effecting Land Plan Plots 1-02 and 1-06 (Ref Land Plan D2.2 Sheet 1); andconstruction of hydrogen/electricity fired furnace on site of existing dispatch yard and surrounding area effecting Land Plan Plot 1-02 (Ref: Land Plan D2.2 Sheet 1); andconstruction of new rail sidings and intermodal area between existing rail sidings and Network Rail main line affecting Land Plan Plots 1-06, 1-06a 1-20, 1-21 and 1-22 (Ref: Land Plan D2.2 Sheet 1).

“Network Rail Standard” means Network Rail Standard reference ‘NR/L2/CIV/044 ‘Planning, Design and Construction of Undertrack Crossings’;

“Peel” means Peel NRE Limited (company number 004480419), whose registered office is at Venus Building, 1 Old Park Lane, Traffordcity, Manchester, M41 7HA;

“Existing Peel access road” means the existing access road at Plots 1-01a and 1-01 as shown on the Land Plans;

“Proposed Peel access road(s)” means the access road(s) proposed to be constructed to connect Plot 1-01a to Plot 1-04 as identified on the Land Plans D2.2 Sheet 1 pursuant to planning application Ref: 23/01239/FUL for construction of gas fired electricity generators, enclosures with ancillary equipment, metering station, transformer compound and access from Grinsome Road;

“Peel access road(s)” means collectively the Existing Peel access road and the Proposed Peel access road(s) and being fit for purpose to allow the undertaker access to Plot 1-01 and between Plots 1-01a and 1-04;

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

“specified work” means so much of any of the authorised development as is situated upon, across, under, over, or may in any way adversely affect, relevant property and, for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article 5 (power to maintain the authorised development) in respect of such works.

Rights of access

179

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 Encirc otherwise than by agreement (both parties acting reasonably);

(b) must provide a minimum of two working days notification prior to each entry to the relevant property, such notice to be submitted in writing to facilities.elton@encirc360.com, and a single notification may cover multiple dates of entry;

(d) comply with any reasonable conditions which Encirc may specify in relation to the undertaker’s entry to the relevant property but only to the extent they do not restrict or impede the ability of the undertaker to construct, operate or maintain the authorised development;

(e) must keep any existing roads used for access to the relevant property by Encirc clean but only to the extent they have been dirtied as a result of the specified works, clear from obstruction and in a usable condition as far as reasonably practicable; and

(f) must pay a fair and reasonable proportion (according to use) of the costs incurred by Encirc in repairing and maintaining the entirety of Ash Road.

180

The parties shall hold the CTS Meetings fortnightly during detailed design and construction of the specified works. The undertaker and Encirc shall use all reasonable but commercially prudent endeavours to agree a schedule in relation to the co-ordination of traffic movements relating to the specified works. Where a schedule is agreed the parties will use the access routes only in accordance with the agreed schedule.

Rights of access – Grinsome Road to the Protos Site

181

Subject to paragraph 183 (Rights of access – Ash Road (South)), provided that—

(a) Peel has constructed the Peel access road(s) prior to the undertaker completing that part of Work No. 3 which relates to Land Plans Plots 1-01a, 1-01, 1-02, 1-03 and 1-04;

(b) Peel has granted the undertaker an easement for all rights of access required by the undertaker over the Peel access road(s) and Land Plans Plot 1-04 to ensure the undertaker has suitable access (to the undertaker’s satisfaction) to Plots 1-05, 1-08, 1-09, 1-10, 1-11, 1-12, 1-13, 1-14, 1-15, 1-16, 1-17 and 1-18; and

(c) the undertaker is satisfied that the Peel access road(s) are/ is fit for purpose for the purposes of Work No.1, No.2, No. 3 and No.4:

the undertaker must not exercise the Powers conferred by this Order to (a) appropriate or acquire or take temporary possession of Land Plans Plots 1-02 and 1-03, or (b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right held by Encirc over Land Plans Plots 1-01a and 1-01.

182

The undertaker shall use all reasonable but commercially prudent endeavours to secure the grant by Peel of an easement for all rights of access required by the undertaker over the Peel access road(s) and Plot Plans Plot 1-04 to ensure the undertaker has suitable access (to the undertaker’s satisfaction) to Plots 1-05, 1-08, 1-09, 1-10, 1-11, 1-12, 1-13, 1-14, 1-15, 1-16, 1-17 and 1-18.

Rights of access – Ash Road (South)

183

Subject to Paragraph 184 (Rights of Access – Abnormal Loads), the undertaker must use the entrance from Ash Road as the primary access route (over Plots 1-06, 1-06a, 1-06b and 1-06c as identified on the Land Plans) for construction activities within Plots 1-20, 1-21 and 1-22. Provided that Encirc has granted to the undertaker a suitable right of access across a fit for purpose access route (to the undertaker’s satisfaction) to all of Plot 1-22 as identified on the Land Plans as required by the undertaker—

(a) The undertaker may in relation to Plot 1-21 exercise its powers under article 35 (temporary use of land for carrying out the authorised development) for the purpose of temporary use as a construction working area and for access only; and

(b) The undertaker may not exercise the powers conferred under article 27 (compulsory acquisition of rights and restrictive covenants) in relation to Land Plans Plot 1-21 without the prior consent in writing of Encirc.

Rights of Access – Abnormal Loads

184

In respect of abnormal loads, the undertaker may use the access route over Grinsome Road, being either (a) over Plots 1-01a, 1-01, 1-02, 1-03, 1-06, and 1-06d as identified in the Lands Plans, (b) over a route to be determined from Plots 1-01a, 1-01, part of 1-02, and from a point of egress (to be determined) in Plot 1-02 to the north end of Plot 1-06 subject to Encirc granting to the undertaker a suitable right of access across such route which must be a fit for purpose route (to the undertaker’s satisfaction), or (c) over a route to be determined from that part of the Peel access road(s) constructed pursuant to planning permission reference 22/0363/FUL over Plots 1-03 and 1-02, and from an egress in Plot 1-02 (to be determined) to the north end of Plot 1-06 subject to Encirc granting to the undertaker a suitable right of access across such route which must be a fit for purpose route (to the undertaker’s satisfaction). Use of any of the above routes is subject to the following conditions—

(a) The undertaker must provide a minimum of two working days notification prior to use of the construction access, writing to be provided to facilities.elton@encirc360.com;

(b) The undertaker must not take access through the Fence unless and until Encirc have confirmed the written approval of HMRC and shall not take any steps which would lead to Encirc being in breach of any obligations to HMRC;

(c) The undertaker shall comply with all reasonable conditions imposed by Encirc when taking access through the Fence and shall notify Encirc immediately if there is a breach of any such condition;

(d) The undertaker will use all reasonable endeavours to take access through the Fence in such a manner as to cause as little damage as reasonably practicable and shall inform Encirc immediately if any damage is caused to the Fence including providing full details of the location and the damage caused.

(e) The undertaker must pay to Encirc all reasonable and proper costs incurred by Encirc in providing reasonably necessary security detail to escort abnormal loads through the Fence;

(f) The undertaker must make good any damage to the Fence as soon as reasonably practicable and must pay to Encirc all documented reasonable and proper expenses to which Encirc may be put and any compensation for any direct loss which it may sustain by reason of such damage provided that at all times Encirc will be under an obligation to take reasonable steps to mitigate its loss.

Railway

185

(1) The undertaker will procure that in carrying out Work No. 4 at Plots 1-19, 1-20, 1-22, 1-23 and 1-24, as identified on the Land Plans:

(a) The Network Rail Standard (as in force when the works are being carried out) shall be complied with;

(b) All crossings under the existing railway lines (or any future development works installed by Encirc at the relevant property prior to the commencement of Work No. 4) will use trenchless crossing methods;

(2) The undertaker must—

(a) at all times before, during and after the construction of the specified works allow an engineer or other person appointed by Encirc to watch and inspect the execution of the specified work; and

(b) supply the appointed person with all such information and all relevant and available documents as they may reasonably require with regard to the method of constructing a specified work.

(3) Encirc shall provide details of their scheduled trains at the relevant property to the undertaker on a monthly basis at CTS Meetings, and the undertaker and Encirc shall use all reasonable but commercially prudent endeavours to agree at the CTS Meetings provision to enable the authorised development and the operation of the scheduled trains. Where Encirc advise the undertaker of any changes to the schedule as soon as reasonably practicable, the undertaker shall use all reasonable endeavours to minimise interference of the carrying out of the specified works with the operation of Encirc’s re-scheduled trains.

Construction Traffic Management Plan

186

The undertaker must consult with Encirc prior to submitting any CTMP to the relevant planning authority for approval in accordance with Requirement 6. The undertaker will provide a draft CTMP to Encirc no later than 20 working days prior to submission, and confirm to Encirc the intended date of submission at the same time. Encirc may make representations on the draft CTMP to the undertaker no later than 14 days prior to the notified intended date of submission. The undertaker will have due regard to any reasonable representations timeously made by Encirc in finalising the CTMP for submission.

Co-operation

187

Where Encirc propose to carry out any piling or construction works on the Order land within Land Plan Plots 1-20 and 1-22, prior to carrying out such works Encirc must agree with the undertaker the design and methodology which will be used, and the operational use of such works.

188

The undertaker and Encirc must use all reasonable but commercially prudent endeavours to reach agreement to enable the authorised development, Encirc’s business and operations and any future development works to be carried out (subject to Encirc obtaining all necessary consents, permissions and authorisations).

189

The undertaker shall ensure that the pipeline is buried to a minimum depth of 4.3m under the existing railway ground level.

Specified work

190

The undertaker must give Encirc no less than 56 days written notice of the intended commencement of any specified works and must include with this notification a plan and description of the works to be commenced and a programme for these works.

191

Any specified work must, when commenced, be constructed-

(a) In such a manner as to cause as little damage and disruption as reasonably practicable to the relevant property, including damage by way of pollution or to the operation of Encirc’s business and operations;

(b) In such a manner so as not to cause any breaches of Encirc’s obligations to HMRC or under the COMAH Regulations; and

(c) If any damage to the relevant property or Encirc’s business and operations or any such interference or obstruction is caused by the carrying out of the construction of a specified work, the undertaker must promptly inform Encirc of such damage, must make good such damage and must pay to Encirc all reasonable and proper expenses to which Encirc may be put and any compensation for any loss which it may sustain by reason of such damage, interference or obstruction, provided that at all times Encirc will be under an obligation to take reasonable steps to mitigate its loss.

Expenses

192

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

(2) The undertaker must pay to Encirc all reasonable and proper costs, charges, penalties, damages and expenses not otherwise provided for in this Part of this Schedule which may be reasonably incurred by Encirc, provided that at all times Encirc will be under an obligation to take reasonable steps to mitigate its loss -

(a) by reason of the construction, maintenance or operation of a specified 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 a specified work;

(d) in respect of any damage to any access routes to the relevant property for which Encirc have a maintenance obligation but always limited to the extent such damage is attributable to the undertaker and the undertaker has not reimbursed the costs of remediation of such damage under sub-paragraph (e);

(e) in respect of any claim against Encirc by any third party in respect of the access routes to the extent such claim relates to damage to the access routes but always limited to the extent such damage is attributable to the undertaker and the undertaker has not reimbursed the costs of remediation of such damage under sub-paragraph (d);

(f) by the provision of reasonably necessary security detail for any land, works, apparatus and equipment belonging to Encirc to the extent attributable to the specified works;

(g) in respect of securing any required consents from HMRC in respect of the undertaking authorised development by the undertaker.

(3) The undertaker must indemnify and keep indemnified Encirc from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission to a maximum cap on liability of £5 million for each individual claim and an aggregate cap of £15 million provided that there shall be no cap on liability in respect of any damage caused to the Ash Road bridge which prevents access to the relevant property, provided that at all times Encirc will be under an obligation to take reasonable steps to mitigate its loss Encirc must—

(a) give the undertaker reasonable written notice of any such sums referred to in paragraph 192 (3) as soon as reasonably possible after Encirc become aware of the same;

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

(d) where any claims or demands are made by Network Rail, advise Network Rail that any claims and demands should be directed to the undertaker only; and

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

General

193

(1) Any difference or dispute arising between the undertaker and Encirc under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Encirc, be determined by arbitration in accordance with article 49 (arbitration) of this Order.

(2) The undertaker and Encirc must each act reasonably in connection with the implementation of this Part of this Schedule.

Notices

194

Any plans or notices submitted to Encirc by the undertaker pursuant to this Part must be sent to Encirc at legal@encirc360.com or such other address as Encirc may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 16 — For the protection of Welsh Ministers as Strategic Highway Authority

Application

195

The provisions of this Part have effect for the protection of the Welsh Ministers (“the WM”) as the Highway Authority for the strategic road network in Wales, in addition to all other applicable statutory protections, unless otherwise agreed in writing between the undertaker and the WM.

Interpretation

196

In this Part—

“highway structure” means any bridge, subway, culvert, pipe, tunnel, manhole, chamber, wall, reinforced soil embankment, piece of street furniture, building or other structure built in, over, under or adjacent to any part of the highway which materially affects the support of that highway and/or the safety of the travelling public;

“strategic highway” means any part of the highway network including trunk roads or special roads which the WM are responsible for;

“NMWTRA” means the North and Mid Wales Trunk Road Agency, who act as the highway agents of the WM and exercise functions relating to the management and operation of the relevant part of the strategic highway on behalf of the WM pursuant to an agreement between the WM and Gwynedd Council under section 6 of the Highways Act 1980. In practice therefore, the procedural matters contained in this Part will be largely dealt with by NMWTRA on behalf of the WM; and

“works” means—that part of Work No. 39 which requires the trenchless installation of the pipeline under the A494 (Aston Expressway) highway;that part of Work No. 44 which requires the open cut installation of the pipeline under the verge of the A55 adjacent to Junction 33a, heading north under Chester Road; orany other work forming part of the authorised development within or which affects or requires occupation of the strategic highway.

Approvals

197

The crossing of the A494 and its associated assets must only be carried out by trenchless techniques. The installation of the pipeline under the verge of the A55 adjacent to Junction 33a, heading north under Chester Road shall be carried out as open cut installation.

198

(1) Prior to the commencement of the works the undertaker must obtain the written approval of the WM to such works.

(2) When requesting approval under sub-paragraph (1), the undertaker must submit to the WM:

(a) Copy of location plan to a scale not less than 1/10,000 showing the location and/or proposed route and siting of the works;

(b) Details of the methodology of the works;

(d) Details of any traffic management measures (including signage) proposed in connection with the works; and

(e) Where approval is sought for works to or within the carriageway of a strategic highway, evidence of NHSS (National Highways Sector Scheme) certification and Street Works Qualifications.

199

No crossing is to take place until a monitoring regime and the Geotechnical Design Report (GDR as defined by the DMRB CD622 Managing Geotechnical Risk) is agreed and certified by the WM.

200

Technical Approval from WM in accordance with DMRB CG300 is required in advance of any part of the works which is likely to affect any existing highway structure(s)

201

Approval under this Part may be sought in one or more applications.

202

Any approval of the WM under this Part may be given subject to such reasonable requirements or conditions as the WM may determine.

203

The undertaker must contact any owners or operators of apparatus in, on, over, under or near the strategic highway including other statutory undertakers to ascertain whether their existing or proposed apparatus to within or under the strategic highway is likely to be affected by the works. The undertaker must comply with the reasonable requirements and conditions imposed by the owners or operators relating to the protection of existing apparatus in, on, over, under or near the strategic highway likely to be affected by the works.

204

The undertaker must pay a fee of £250 to the WM with any application for approval under this Part.

Indemnity

205

The undertaker indemnifies the WM against any and all claims in respect of injury, damage or loss arising out of—

(a) the placing or presence in the strategic highway of apparatus as part of the works; or

(b) the excavation by any person of any works within the strategic highway,

always provided that the undertaker shall not be liable for any consequential loss or any indirect loss under any circumstances.

206

The undertaker (or any person carrying out works on its behalf) must have and maintain in force for the duration of any works to or within the strategic highway network, public liability/third party insurance to the sum of £10 million covering its liability under paragraph 205. The undertaker must provide evidence of such insurance to the WM if requested.

Traffic management

207

The undertaker must contact the NMWTRA, the WM RA Control Room, North Wales Traffic Management Centre, Ffordd Sam Parri, Morfa, Conwy, LL32 8HH – Telephone number 01492 564790 before erecting or removal of traffic management measures on the strategic highway on each occasion that erection or removal is required.

208

The undertaker must execute the works in strict accordance with the requirements contained in Chapter 8 of the Traffic Signs Manual (2009) as published by Her Majesty’s Stationery Office HMSO and any amendments thereof.

Inspections

209

The WM or any person authorised by them for this purpose is entitled to inspect any works to, within or under the strategic highway while such works are being carried out and following completion of such works.

210

Exercise of the right to inspect under paragraph 209 must be carried out reasonably, in compliance with any requirements of any health and safety requirements in place within the site of any works, and in accordance with the instructions of the undertaker.

211

(1) The undertaker must compensate the WM in respect of any loss, damage, charge, cost or expense reasonably suffered or incurred by the WM as a result of the execution, use or maintenance of the works.

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

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

(b) any indirect or consequential loss of WM or any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption).

Reinstatement

212

Any reinstatement of the strategic highway required in connection with or as a consequence of the works must be carried out in strict conformity with the Code of Practice “Specification for the Reinstatement of Openings in Highways”.

213

(1) Where, in the reasonable opinion of the WM, any reinstatement carried out by the undertaker is defective, three defect inspections will be carried out comprising:

(a) A joint inspection by the WM and the undertaker to determine the nature of the failure and what remedial works need to be carried out;

(b) Inspection by or on behalf of the WM of remedial works in progress; and

(2) The undertaker must pay an inspection fee of £47.50 for each inspection carried out under this paragraph.

214

Any and all reasonable costs associated with the reinstatement work will be met by the undertaker.

Notice of completion of Works

215

The undertaker must notify the WM of the completion of works approved by the WM under this Part within 10 working days of such completion.

216

The undertaker must supply the WM with as built records of any apparatus sited within or under the strategic highway within 20 working days of the completion of works, including, in particular, the location and depth of any electrical cables on a plan to a scale of 1/500 with a longitudinal and vertical accuracy of + or - 100mm.

217

The undertaker must submit a Geotechnical Feedback Report (GFR as defined in the DMRB CD622 Managing Geotechnical Risk) including all monitoring results and as built drawings to the WM no later than six months from the date of completion.

218

After the apparatus has been placed, the undertaker must not carry out any further works or maintenance to the apparatus or works or any other works involving excavation within the boundaries of the strategic highway without the prior written approval of the WM, such approval not to be unreasonably withheld or delayed, and any such works must be carried out and completed to the reasonable satisfaction of WM.

Arbitration

219

Any difference or dispute arising between the undertaker and the WM under this Part must, unless otherwise agreed in writing between the undertaker and the WM, be determined by arbitration in accordance with article 49 (arbitration).

Notices

220

The plans submitted to the WM by the undertaker pursuant to this Part must be submitted to North & Mid Wales Trunk Road Agent, Unit 5 Llys Britannia, Parc Menai, Bangor, Gwynedd, LL57 4BN and streetworks@nmwtra.org.uk or such other address as the WM may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Maintenance

221

The undertaker must maintain the apparatus in an appropriate state of repair and condition. The undertaker must if required place and maintain within the limits of the said highway suitable permanent signs of a type and in positions to be approved by the WM for the purpose of indicating as nearly as possible the exact position under the highway in which the said apparatus is laid.

PART 17 — For the protection of National Highways Limited

Application etc.,

222

The provisions of this Part of this Schedule apply for the protection of National Highways and have effect unless otherwise agreed in writing between the undertaker and National Highways.

Interpretation

223

(1) Where the terms defined in article 2 (interpretation) of this Order are inconsistent with subparagraph (2) the latter prevail.

(2) In this Part of this Schedule—

“acceptable security” means either:a parent company guarantee from a parent company in favour of National Highways to cover the undertaker’s liability to National Highways to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Highways and where required by National Highways, accompanied with a legal opinion confirming the due capacity and authorisation of the parent company to enter into and be bound by the terms of such guarantee); ora bank bond or letter of credit from an acceptable credit provider in favour of National Highways to cover the undertaker’s liability to National Highways for an amount of not less than £10,000,000.00 (ten million pounds) per asset per event up to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Highways);

“as built information” means one electronic copy of the following information—as constructed drawings in both PDF and AutoCAD DWG formats showing the location and depth of the pipeline as installed and any ancillary or protective measures installed within the strategic road network;as constructed information for any utilities discovered or moved during the specified works;method statements for the specified works carried out;in so far as it is relevant to the specified works, the health and safety file; andsuch other information as is reasonably required by National Highways to be used to update all relevant databases and to ensure compliance with National Highway’s Asset Data Management Manual as is in operation at the relevant time.

“condition survey” means a survey of the condition of National Highways structures and assets within the Order limits that may be affected by the specified works;

“contractor” means any contractor or subcontractor appointed by the undertaker to carry out the specified works;

“detailed design information” means such of the following drawings specifications and calculations as are relevant to the specified works—site clearance details;boundary, environmental and mitigation fencing;earthworks including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification;utilities diversions; andother such information that may be reasonably required by National Highways to be used to inform the detailed design of the specified works;

“DMRB” means the Design Manual for Roads and Bridges or any replacement or modification of it;

“the health and safety file” means the file or other permanent record containing the relevant health and safety information for the specified works required by the Construction Design and Management Regulations 2015 (or such updated or revised regulations as may come into force from time to time);

“nominated persons” means the undertaker’s representatives or the contractor’s representatives on site during the carrying out of the specified works as notified to National Highways from time to time;

“parent company” means a parent company of the undertaker acceptable to National Highways acting reasonably;

“programme of works” means a document setting out the sequence and timetabling of the specified works;

“specified works” means so much of the authorised development, including any maintenance of that work, as is on, in, under or over the strategic road network for which National Highways is the highway authority, and specifically including Work No.12 in so far as that crosses the M56 motorway, Work No.16 in so far as that crosses the M53 motorway, and Work No. 22 in so far as that crosses the A41 highway.

“strategic road network” means any part of the road network including trunk roads, special roads or streets for which National Highways is the highway authority including drainage infrastructure, street furniture, verges and vegetation and all other land, apparatus and rights located in, on, over or under the highway;

“utilities” means any pipes wires cables or equipment belonging to any person or body having power or consent to undertake street works under the New Roads and Street Works Act 1991; and

(3) References to any standards, manuals, contracts, Regulations and Directives including to specific standards forming part of the DMRB are, for the purposes of this Part of this Schedule, to be construed as a reference to the same as amended, substituted or replaced, and with such modifications as are required in those circumstances.

General

224

The undertaker acknowledges that parts of the works authorised by this Order affect or may affect parts of the strategic road network in respect of which National Highways may have appointed or may appoint a highway operations and maintenance contractor.

225

Notwithstanding the limits of deviation permitted pursuant to article 6 (limits of deviation) of this Order, no works in carrying out, maintaining or diverting the authorised development may be carried out under the strategic road carriageway at a distance less than 4 metres below the lowest point of the carriageway surface.

226

References to any standards, manuals, contracts, regulations and directives including to specific standards forming part of the DMRB are, for the purposes of this Part of this Schedule, to be construed as a reference to the same as amended, substituted or replaced, and with such modifications as are required in those circumstances.

Prior approvals and security

227

(1) Any specified works which involve tunnelling, boring or otherwise installing the pipeline under the strategic road network without trenching from the surface, must be designed by the undertaker in accordance with DMRB CD622 unless otherwise agreed in writing by National Highways.

(2) The specified works must not commence until—

(a) the programme of works has been approved by National Highways;

(b) the detailed design of the specified works comprising of the following details, insofar as considered relevant by National Highways, has been submitted to and approved by National Highways—

(i) the detailed design information;

(ii) the identity and suitability of the contractor and nominated persons; and

(iii) a process for stakeholder liaison, with key stakeholders to be identified and agreed between National Highways and the undertaker;

(c) a condition survey and regime of monitoring of any National Highways assets or structures that National Highways reasonably considers will be affected by the specified works, has been agreed in writing by National Highways; and

(d) an acceptable security in favour of National Highways for the indemnity set out in paragraph 232 below has been put in place, which security must be maintained in place until the expiry of 12 months following the completion of all of the specified works.

(3) National Highways must, prior to the commencement of the specified works, inform the undertaker of the identity of the person who will act as a point of contact on behalf of National Highways for consideration of the information required under sub-paragraph (2).

(4) Any approval of National Highways required under this paragraph-

(a) must not be unreasonably withheld;

(b) must be given in writing;

(c) shall be deemed to have been given if neither given nor refused within 2 months of the receipt of the information for approval or, where further particulars are requested by National Highways (acting reasonably) within 2 months of receipt of the information to which the request for further particulars relates; and

(d) may be subject to any reasonable conditions as National Highways considers necessary.

(5) Any change to the identity of the contractor and/or designer of the specified works will be notified to National Highways immediately and details of their suitability to deliver the specified works will be provided on request.

(6) Any change to the detailed design of the specified works must be approved by National Highways in accordance with paragraph 227(2) of this Part.

Construction of the specified works

228

(1) The undertaker must give National Highways 28 days’ notice in writing of the date on which the specified works will start.

(2) The specified works must be carried out by the undertaker to the reasonable satisfaction of National Highways in accordance with—

(a) the relevant detailed design information and programme of works approved pursuant to paragraph 227(2) above or as subsequently varied by agreement between the undertaker and National Highways;

(b) in so far as it may be applicable, the DMRB, save to the extent that exceptions from those standards apply which have been approved by National Highways; and

(c) all aspects of the Construction (Design and Management) Regulations 2015 or any statutory amendment or variation of the same.

(3) The undertaker must permit and must require the contractor to permit at all reasonable times persons authorised by National Highways (whose identity must have been previously notified to the undertaker by National Highways) to gain access to the specified works for the purposes of inspection and supervision of the specified works.

(4) If any part of the specified works is constructed-

(a) other than in accordance with the requirements of this Part of this Schedule; or

(b) in a way that causes damage to the highway, highway structure or asset or any other land of National Highways,

National Highways may by notice in writing require the undertaker, at the undertaker’s own expense, to comply promptly with the requirements of this Part of this Schedule or remedy any damage notified to the undertaker under this Part of this Schedule, to the satisfaction of National Highways, acting reasonably.

(5) If during the carrying out of the authorised development the undertaker or its appointed contractors or agents causes damage to the strategic road network then National Highways may by notice in writing require the undertaker, at its own expense, to remedy the damage.

(6) If within 28 days on which a notice under sub-paragraph (4) or sub-paragraph (5) is served on the undertaker (or in the event of there being, in the opinion of National Highways, a danger to road users, within such lesser period as National Highways may stipulate), the undertaker has failed to take the steps required by that notice, National Highways may carry out the steps required of the undertaker and may recover any expenditure reasonably incurred by National Highways in so doing.

(7) Nothing in this Part of this Schedule prevents National Highways from carrying out any work or taking any such action as it reasonably believes to be necessary as a result of or in connection with the carrying out or maintenance of the authorised development without prior notice to the undertaker in the event of an emergency or to prevent the occurrence of danger to the public and National Highways may recover any expenditure it reasonably incurs in so doing.

(8) In constructing the specified works, the undertaker must at its own expense divert or protect all utilities.

(9) The undertaker must notify National Highways if it fails to complete the specified works in accordance with the agreed programme of works pursuant to paragraph 227(2)(b) of this Part, or suspends the carrying out of any specified work beyond 14 days, and National Highways reserves the right to withdraw any road space booking granted to the undertaker to ensure compliance with its network occupancy requirements.

Payments

229

(1) The undertaker must pay to National Highways a sum equal to the whole of any reasonable costs and expenses which National Highways incurs (including costs and expenses for using internal or external staff and costs relating to any work which becomes abortive) in relation to the specified works and in relation to any approvals sought under this Order, or otherwise incurred under this Part, including—

(a) the checking and approval of the information required under paragraph 227(2);

(b) the supervision of the specified works;

(d) any value added tax which is payable by National Highways in respect of such costs and expenses and for which it cannot obtain reinstatement from HM Revenue and Customs,

together comprising “the NH costs”.

(2) National Highways must provide the undertaker with a schedule showing its reasonable estimate of the NH costs prior to the commencement of the specified works and the undertaker must pay to National Highways the reasonable estimate of the NH costs prior to commencing the specified works and in any event prior to National Highways incurring any cost.

(3) If at any time after the payment referred to in sub-paragraph (2) has become payable, National Highways reasonably believes that the NH costs will exceed the reasonably estimated NH costs it may give notice to the undertaker of the amount that it reasonably believes the NH costs will exceed the estimate of the NH costs (the excess) and the undertaker must pay to National Highways within 28 days of the date of the notice a sum equal to the excess.

(4) National Highways must give the undertaker a final account of the NH costs referred to in sub-paragraph (1) above within 91 days of the date of completion of the specified works as set out in the programme of works.

(5) Within 28 days of the issue of the final account:

(a) if the final account shows a further sum as due to National Highways the undertaker must pay to National Highways the sum shown due to it; or

(b) if the account shows that the payment or payments previously made by the undertaker have exceeded the costs incurred by National Highways, National Highways must refund the difference to the undertaker.

(6) If any payment due under sub-paragraph (2) above, is not made on or before the date on which it falls due the party from whom it was due must at the same time as making the payment pay to the other party interest at 3% above the Bank of England base lending rate from time to time being in force for the period starting on the date upon which the payment fell due and ending with the date of payment of the sum on which interest is payable together with that interest.

Condition survey and as built details

230

(1) The undertaker must, as soon as reasonably practicable after completing the specified work, arrange for any highways structures and assets that were the subject of the condition survey under paragraph 227(2)(c) to be re-surveyed and must submit the re-survey to National Highways for its approval. The re-survey will include a renewed geotechnical assessment required by DMRB CD622 if the specified works include any works beneath the strategic road network.

(2) If the re-surveys carried out pursuant to sub-paragraph 230(1) indicates that any damage has been caused to a structure or asset, the undertaker must submit a scheme for remedial works in writing to National Highways. National Highways must remedy any damage identified in the re-surveys and National Highways may recover any expenditure it reasonably incurs in so doing from the undertaker.

(3) The undertaker must make available to National Highways upon request copies of any survey or inspection reports produced pursuant to any inspection or survey of any specified work following its completion that the undertaker may from time to time carry out.

(4) Within 30 days of completion of the specified works, the as built details must be provided by the undertaker to National Highways.

Insurance

231

Prior to the commencement of the specified works the undertaker must effect and maintain in place until the completion of all of the specified works, public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) in respect of any one claim against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of specified works or use of the strategic road network by the undertaker.

Indemnity

232

The undertaker fully indemnifies National Highways from and against all reasonable costs, claims, expenses, damages, losses and liabilities suffered by National Highways directly arising from the construction, maintenance or use of the specified works or exercise of or failure to exercise any power under this Order within 30 days of demand save for any loss arising out of or in consequence of any negligent act or default of National Highways and always excluding any indirect or consequential loss suffered by National Highways.

Maintenance of the specified works

233

(1) The undertaker must, prior to the commencement of any works of external maintenance to the specified works, give National Highways 28 days’ notice in writing of the date on which those works will start unless otherwise agreed by National Highways, acting reasonably. Works of inspection or maintenance undertaken from within the pipeline will not be subject to this paragraph.

(2) If, for the purposes of maintaining the specified works, the undertaker needs to occupy any road space, the undertaker must comply with National Highways’ road space booking requirements and no maintenance of the specified works for which a road space booking is required shall commence without a road space booking having first been secured.

(3) The undertaker must comply with any reasonable requirements that National Highways may notify to the undertaker, such requirements to be notified to the undertaker not less than 14 days’ in advance of the planned commencement date of the maintenance works.

Land

234

(1) The undertaker must not, in reliance on or in exercise of any power under this Order, interfere with, remove, damage or prevent or impair the functioning of, and must on reasonable request (or in case of emergency, on demand) allow access by National Highways to, the highway drainage assets located in plots 2-14, 4-20, 5-01, 5-02, 5-03, 5-04, 5-10, 5-12, 5-14, 5-15, 5-20, 5-22, 5-23, 6-02, 6-03, 6-04, 6-05, 6-06,

(2) The undertaker must not, in reliance on or in exercise of any power under this Order, interfere with, remove or prevent access by National Highways in pursuance of any right held over plots 2-03, 2-14 and 5-05.

(3) The undertake must not, in reliance on or in exercise of any power under this Order, acquire, extinguish or remove any right National Highways holds for the purposes of its undertaking in any of the plots listed in sub-paragraphs (1) and (2) and plot 9-04.

Expert Determination

235

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

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