The Sheringham Shoal and Dudgeon Extensions Offshore Wind Farm Order 2024

PART 9 — For the protection of Anglian Water Services Limited

Application

1

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

Interpretation

2

In this Part of this Schedule—

• “1991 Act” means the New Roads and Street Works Act 1991;

• “alternative apparatus” means alternative apparatus adequate to enable Anglian Water to fulfil its statutory functions in a manner no less efficient than previously;

• “Anglian Water” means Anglian Water Services Limited;

• “apparatus” means—works, mains, pipes or other apparatus belonging to or maintained by Anglian Water for the purposes of water supply and sewerage;any drain or works vested in Anglian Water under the Water Industry Act 1991;any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act;any drainage system constructed for the purpose of reducing the volume of surface water entering any public sewer belonging to Anglian Water; andincludes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;and for the purpose of this definition, where words are defined by section 219 of that Act, they shall be taken to have the same meaning;

• “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; and

• “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.

Apparatus in closed streets

3

Regardless of the temporary closure or diversion of any highway under the powers conferred by article 10 (temporary closure of streets), Anglian Water is at liberty at all times to take all necessary access across any such closed highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that highway.

Protective works to buildings

4

The undertaker, in the case of the powers conferred by article 15 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

5

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

Removal of apparatus

6

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that Anglian Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Anglian Water to maintain that apparatus in that land must not be extinguished, until—

• (a) alternative apparatus has been constructed and is in operation to the reasonable satisfaction of Anglian Water in accordance with sub-paragraphs ‎(2) to ‎(8); and

• (b) facilities and rights have been secured for that alternative apparatus in accordance with paragraph 7.

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to Anglian Water 28 days’ 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 an undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph ‎(3), afford to Anglian Water the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph ‎(2) in the land in which the alternative apparatus or part of such apparatus is to be constructed Anglian Water 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 the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Anglian Water and the undertaker or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

• (5) Anglian Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42, and after the grant to Anglian Water of any such facilities and rights as are referred to in sub-paragraphs ‎(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) Regardless of anything in sub-paragraph ‎(5), if Anglian Water gives notice in writing to the undertaker that it desires the undertaker to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker or to the extent that Anglian Water fails to proceed with that work in accordance with sub-paragraph ‎(5) or the undertaker and Anglian Water otherwise agree, that work, instead of being executed by Anglian Water, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of Anglian Water.

• (7) If Anglian Water fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph ‎(2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved. For the avoidance of doubt, any such “deemed consent” does not extend to the actual undertaking of the removal works, which shall remain the sole responsibility of Anglian Water or its contractors.

• (8) Whenever alternative apparatus is to be or is being substituted for existing apparatus, the undertaker shall, before taking or requiring any further step in such substitution works, use best endeavours to comply with Anglian Water’s reasonable requests for a reasonable period of time to enable Anglian Water to—

• (a) make network contingency arrangements; or

• (b) bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question.

Facilities and rights for alternative apparatus

7

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Anglian Water facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and Anglian Water or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

• (2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to Anglian Water 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 Anglian Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

• (3) Such facilities and rights as are set out in this paragraph are deemed to include any statutory permits granted to the undertaker in respect of the apparatus in question, whether under the Environmental Permitting Regulations 2010 or other legislation.

Retained apparatus

8

• (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus (or any means of access to it) the removal of which has not been required by the undertaker under paragraph 6(2), the undertaker must submit to Anglian Water a plan of the works to be executed.

• (2) Those works must be executed only in accordance with the plan submitted under sub- paragraph ‎(1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph ‎(3) by Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Anglian Water is entitled to watch and inspect the execution of those works.

• (3) Any requirements made by Anglian Water under sub-paragraph ‎(2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph ‎(1) is submitted to it.

• (4) Any approval of Anglian Water must—

• (a) not be unreasonably withheld or delayed;

• (b) in the case of a refusal must be accompanied by a statement of grounds for refusal;

• (c) is deemed to have been approved if it is neither given or refused within 28 days of the submission of the relevant information.

• (5) If Anglian Water in accordance with sub-paragraph ‎(3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs ‎(1) to ‎(3) and ‎(6) to ‎(8) of paragraph 6 apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

• (6) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

• (7) The undertaker is not required to comply with sub-paragraph ‎(1) in a case of emergency but in that case must give to Anglian Water notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances, using its best endeavours to keep the impact of those emergency works on Anglian Water’s apparatus, on the operation of its water and sewerage network and on end-users of the services Anglian Water provides to a minimum.

• (8) For the purposes of sub-paragraph ‎(1) and without prejudice to the generality of the principles set out in that sub-paragraph, works are deemed to be in land near Anglian Water’s apparatus (where it is a pipe) if those works fall within the following distances measured from the medial line of such apparatus—

• (a) 4 metres where the diameter of the pipe is less than 250 millimetres;

• (b) 5 metres where the diameter of the pipe is between 250 and 400 millimetres, and

• (c) a distance to be agreed on a case-by-case basis and before the submission of the plan under sub-paragraph ‎(1) is submitted where the diameter of the pipe exceeds 400 millimetres.

Expenses and costs

9

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to Anglian Water all expenses reasonably incurred by Anglian Water in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this Part of this Schedule.

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

• (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 article 42 (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 Anglian Water by virtue of sub-paragraph ‎(1) must be reduced by the amount of that excess.

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

• (a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; 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 is to be treated as if it also had been agreed or had been so determined.

10

• (1) Subject to sub-paragraphs ‎(2) and ‎(3), if by reason or in consequence of the construction of any such works referred to in paragraphs 4 or 6(2), or by reason of any subsidence resulting from such development or 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 those works) or property of Anglian Water, or there is any interruption in any service provided, or in the supply of any goods, by Anglian Water, the undertaker must—

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

• (b) make reasonable compensation to Anglian Water for any other expenses, loss, damages, penalty or costs incurred by Anglian Water;

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

• (2) The fact that any act or thing may have been done by Anglian Water on behalf of the undertaker or in accordance with a plan approved by Anglian Water or in accordance with any requirement of Anglian Water or under its supervision does not, subject to sub-paragraph ‎(3), excuse the undertaker from liability under the provisions of sub-paragraph ‎(1) unless Anglian Water fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.

• (3) 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 Anglian Water, its officers, servants, contractors or agents.

11

Anglian Water 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 (such consent not to be unreasonably withheld or delayed) who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Cooperation

12

Where in consequence of the proposed construction of any of the authorised development, the undertaker or Anglian Water requires the removal of apparatus under paragraph 6(2) or Anglian Water makes requirements for the protection or alteration of apparatus under paragraph 8(3), 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 Anglian Water’s undertaking, using existing processes where requested by Anglian Water, provided it is appropriate to do so, and Anglian Water must use all reasonable endeavours to co-operate with the undertaker for that purpose.

13

Where the undertaker identifies any apparatus which may belong to or be maintainable by Anglian Water but which does not appear on any statutory map kept for the purpose by Anglian Water, it shall inform Anglian Water of the existence and location of the apparatus as soon as reasonably practicable.

14

Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Anglian Water in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

15

The undertaker and Anglian Water may by written agreement substitute any period of time for those periods set out in this Part of this Schedule.

16

For the avoidance of doubt whenever Anglian Water’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.

17

Any difference or dispute arising between the undertaker and Anglian Water under this Part must, unless otherwise agreed in writing between the undertaker and Anglian Water, be determined by arbitration in accordance with article 42 (arbitration).

PART 10 — For the protection of Norfolk Vanguard

1

The provisions of this Part apply for the protection of Vanguard unless otherwise agreed in writing between the undertaker and Vanguard.

2

In this Part—

• “apparatus” means the cables, structures or other infrastructure owned, occupied or maintained by Vanguard or its successor in title within the Norfolk Vanguard Order land;

• “construction” includes execution, placing, altering, replacing, reconstruction, relaying, maintenance, extensions, enlargement and removal; and “construct” and “constructed” must be construed accordingly;

• “crossing area” means the land within land parcels 16-013, 16-014, 16-015, 16-018, 16-019 and 16-020 shown on the land plans and described in the book of reference;

• “Norfolk Vanguard Order” means the Norfolk Vanguard Offshore Wind Farm Order 2022 [^f00055];

• “Norfolk Vanguard Order land” means Order land as defined in the Norfolk Vanguard Order;

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

• “proposed Norfolk Vanguard Cable Corridor” means the proposed location for any electrical circuit(s) and construction compound(s) permitted by the Norfolk Vanguard Order within the Norfolk Vanguard Order land;

• “specified works” means within the crossing area so much of any works or operations authorised by this Order (or authorised by any planning permission intended to operate in conjunction with this Order) as is—in, on, under, over or within 25 metres of the proposed Norfolk Vanguard Cable Corridor or any apparatus; ormay in any way adversely affect any apparatus;

• “temporary works” so much of the specified works which are temporary works as set out within the Order; and

• “Vanguard” means an undertaker with the benefit of all or part of the Norfolk Vanguard Order for the time being.

3

The consent of Vanguard under this Part is not required where the Norfolk Vanguard Order has expired without the authorised development having been commenced pursuant to requirement 1, in Part 3 of Schedule 1 to the Norfolk Vanguard Order.

4

Where conditions are included in any consent granted by Vanguard pursuant to this Part, the undertaker must comply with the conditions if it chooses to implement or rely on the consent, unless the conditions are waived or varied in writing by Vanguard.

5

The undertaker must not under the powers of this Order—

• (a) acquire, extinguish, suspend, override or interfere with any rights that Vanguard has in respect of any apparatus or the proposed Norfolk Vanguard Cable Corridor;

• (b) acquire the Norfolk Vanguard Order land or acquire any new rights or impose restrictive covenants or exercise any powers of temporary use over or in relation to the Norfolk Vanguard Order land without the consent of Vanguard, which must not be unreasonably withheld or delayed but which may be made subject to reasonable conditions.

6

• (1) The undertaker must not under the powers of this Order carry out any specified works without the consent of Vanguard, which must not be unreasonably withheld or delayed but which may be made subject to reasonable conditions and if Vanguard does not respond within 30 days then consent is deemed to be given.

• (2) Subject to obtaining consent pursuant to sub-paragraph ‎(1) and before beginning to construct any specified works, the undertaker must submit plans of the specified works to Vanguard and must submit such further particulars available to it that Vanguard may reasonably require.

• (3) Any specified works must be constructed without unreasonable delay in accordance with the plans approved in writing by Vanguard.

• (4) Any approval of Vanguard required under this paragraph may be made subject to such reasonable conditions as may be required for the protection or alteration of any apparatus or the proposed Norfolk Vanguard Cable Corridor or for securing access to any apparatus or the proposed Norfolk Vanguard Cable Corridor.

• (5) Without limiting sub-paragraph ‎(1), it is not reasonable for Vanguard to withhold or delay any consent or approval under this Part in relation to specified works solely on the basis of thermal interaction where the plans of the specified works submitted under sub-paragraph ‎(2) demonstrate that all reasonable steps have been taken to minimise thermal interaction between the specified works and any apparatus or the proposed Norfolk Vanguard Cable Corridor.

• (6) Where Vanguard requires any protective works to be carried out either by themselves or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to Vanguard’s reasonable satisfaction.

• (7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any specified works, new plans instead of the plans previously submitted, and the provisions of this paragraph shall apply to and in respect of the new plans.

7

• (1) The undertaker must give to Vanguard not less than 28 days’ written notice of its intention to commence the construction of the specified works and, not more than 14 days after completion of their construction, must give Vanguard written notice of the completion.

• (2) The undertaker is not required to comply with paragraph 6 or sub-paragraph ‎(1) in a case of emergency, but in that case it must give to Vanguard notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonable practicable subsequently and must comply with paragraph 6 in so far as is reasonably practicable in the circumstances.

8

The undertaker must at all reasonable times during construction of the specified works allow Vanguard and its servants and agents access to the specified works and all reasonable facilities for inspection of the specified works.

9

• (1) After the purpose of any temporary works has been accomplished, the undertaker must with all reasonable dispatch, or after a reasonable period of notice in writing from Vanguard requiring the undertaker to do so, remove the temporary works.

• (2) If the undertaker fails to remove the temporary works within a reasonable period of receipt of a notice pursuant to sub-paragraph ‎(1), Vanguard may remove the temporary works and may recover the reasonable costs of doing so from the undertaker.

10

If in consequence of the exercise of the powers conferred by 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 Vanguard to maintain or use the apparatus no less effectively than was possible before the obstruction.

11

Subject to paragraph 10 the undertaker must not exercise the powers conferred by this Order to prevent or interfere with the access by Vanguard to the proposed Norfolk Vanguard Cable Corridor.

12

To ensure its compliance with this Part, the undertaker must before carrying out any specified works or operations pursuant to this Order request up-to-date written confirmation from Vanguard of the location of any apparatus or the proposed Norfolk Vanguard Cable Corridor.

13

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

14

The undertaker must pay to Vanguard the reasonable expenses incurred by Vanguard in connection with the approval of plans, inspection of any specified works or the alteration or protection of any apparatus or the proposed Norfolk Vanguard Cable Corridor.

15

• (1) Subject to sub-paragraphs ‎(2) and ‎(3), if by reason or in consequence of the construction of any specified works, any damage is caused to any apparatus or there is any interruption in any service provided, or in the supply of any goods, by Vanguard, or Vanguard becomes liable to pay any amount to any third party, the undertaker must—

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

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

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

• (3) Vanguard must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering its representations.

• (4) Vanguard must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph 15 applies. If requested to do so by the undertaker, Vanguard shall provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph 15 for claims reasonably incurred by Vanguard.

• (5) The fact that any work or thing has been executed or done with the consent of Vanguard and in accordance with any conditions or restrictions prescribed by Vanguard or in accordance with any plans approved by Vanguard or to its satisfaction or in accordance with any directions or award of any arbitrator does not relieve the undertaker from any liability under this Part.

16

Any dispute arising between the undertaker and Vanguard under this Part must be determined by arbitration under article 42 (arbitration).

PART 11 — For the protection of Norfolk Boreas

1

The provisions of this Part apply for the protection of Boreas unless otherwise agreed in writing between the undertaker and Boreas.

2

In this Part—

• “apparatus” means the cables, structures or other infrastructure owned, occupied or maintained by Boreas or its successor in title within the Norfolk Boreas Order Land;

• “Boreas” means an undertaker with the benefit of all or part of the Norfolk Boreas Order for the time being;

• “construction” includes execution, placing, altering, replacing, reconstruction, relaying, maintenance, extensions, enlargement and removal; and “construct” and “constructed” must be construed accordingly;

• “crossing area” means the land within land parcels 16-013, 16-014, 16-015, 16-018, 16-019 and 16-020 shown on the land plans and described in the book of reference;

• “Norfolk Boreas Order” means the Norfolk Boreas Offshore Wind Farm Order 2021[^f00056];

• “Norfolk Boreas Order land” means Order land as defined in the Norfolk Boreas Order;

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

• “proposed Norfolk Boreas Cable Corridor” means the proposed location for any electrical circuit(s) and construction compound(s) permitted by the Norfolk Boreas Order within the Norfolk Boreas Order land;

• “specified works” means within the crossing area so much of any works or operations authorised by this Order (or authorised by any planning permission intended to operate in conjunction with this Order) as is—in, on, under, over or within 25 metres of the proposed Norfolk Boreas Cable Corridor or any apparatus; ormay in any way adversely affect any apparatus; and

• “temporary works” so much of the specified works which are temporary works as set out within the Order.

3

The consent of Boreas under this Part is not required where the Norfolk Boreas Order has expired without the authorised development having been commenced pursuant to any requirement of Schedule 1 to the Norfolk Boreas Order.

4

Where conditions are included in any consent granted by Boreas pursuant to this Part, the undertaker must comply with the conditions if it chooses to implement or rely on the consent, unless the conditions are waived or varied in writing by Boreas.

5

The undertaker must not under the powers of this Order—

• (a) acquire, extinguish, suspend, override or interfere with any rights that Boreas has in respect of any apparatus or the proposed Norfolk Boreas Cable Corridor;

• (b) acquire the Norfolk Boreas Order land or acquire any new rights or impose restrictive covenants or exercise any powers of temporary use over or in relation to the Norfolk Boreas Order land without the consent of Boreas, which must not be unreasonably withheld or delayed but which may be made subject to reasonable conditions.

6

• (1) The undertaker must not under the powers of this Order carry out any specified works without the consent of Boreas, which must not be unreasonably withheld or delayed but which may be made subject to reasonable conditions and if Boreas does not respond within 30 days then consent is deemed to be given.

• (2) Subject to obtaining consent pursuant to sub-paragraph ‎(1) and before beginning to construct any specified works, the undertaker must submit plans of the specified works to Boreas and must submit such further particulars available to it that Boreas may reasonably require.

• (3) Any specified works must be constructed without unreasonable delay in accordance with the plans approved in writing by Boreas.

• (4) Any approval of Boreas required under this paragraph may be made subject to such reasonable conditions as may be required for the protection or alteration of any apparatus or the proposed Norfolk Boreas Cable Corridor or for securing access to any apparatus or the proposed Norfolk Boreas Cable Corridor.

• (5) Without limiting sub-paragraph ‎(1), it is not reasonable for Boreas to withhold or delay any consent or approval under this Part in relation to specified works solely on the basis of thermal interaction where the plans of the specified works submitted under sub-paragraph ‎(2) demonstrate that all reasonable steps have been taken to minimise thermal interaction between the specified works and any apparatus or the proposed Norfolk Boreas Cable Corridor.

• (6) Where Boreas requires any protective works to be carried out either by themselves or by the undertaker (whether of a temporary or permanent nature) such protective works must be carried out to Boreas’s reasonable satisfaction.

• (7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any specified works, new plans instead of the plans previously submitted, and the provisions of this paragraph shall apply to and in respect of the new plans.

7

• (1) The undertaker must give to Boreas not less than 28 days’ written notice of its intention to commence the construction of the specified works and, not more than 14 days after completion of their construction, must give Boreas written notice of the completion.

• (2) The undertaker is not required to comply with paragraph 6 or sub-paragraph ‎(1) in a case of emergency, but in that case it must give to Boreas notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonable practicable subsequently and must comply with paragraph 6 in so far as is reasonably practicable in the circumstances.

8

The undertaker must at all reasonable times during construction of the specified works allow Boreas and its servants and agents access to the specified works and all reasonable facilities for inspection of the specified works.

9

• (1) After the purpose of any temporary works has been accomplished, the undertaker must with all reasonable dispatch, or after a reasonable period of notice in writing from Boreas requiring the undertaker to do so, remove the temporary works.

• (2) If the undertaker fails to remove the temporary works within a reasonable period of receipt of a notice pursuant to sub-paragraph ‎(1), Boreas may remove the temporary works and may recover the reasonable costs of doing so from the undertaker.

10

If in consequence of the exercise of the powers conferred by 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 Boreas to maintain or use the apparatus no less effectively than was possible before the obstruction.

11

Subject to paragraph 10, the undertaker must not exercise the powers conferred by this Order to prevent or interfere with the access by Boreas to the proposed Norfolk Boreas Cable Corridor.

12

To ensure its compliance with this Part, the undertaker must before carrying out any works or operations pursuant to this Order request up-to-date written confirmation from Boreas of the location of any apparatus or the proposed Norfolk Boreas Cable Corridor.

13

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

14

The undertaker must pay to Boreas the reasonable expenses incurred by Boreas in connection with the approval of plans, inspection of any specified works or the alteration or protection of any apparatus or the proposed Norfolk Boreas Cable Corridor.

15

• (1) Subject to sub-paragraphs ‎(2) and ‎(3), if by reason or in consequence of the construction of any specified works, any damage is caused to any apparatus or there is any interruption in any service provided, or in the supply of any goods, by Boreas, or Boreas becomes liable to pay any amount to any third party, the undertaker must—

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

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

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

• (3) Boreas must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made, unless payment is required in connection with a statutory compensation scheme without first consulting the undertaker and considering its representations.

• (4) Boreas must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph 15 applies. If requested to do so by the undertaker, Boreas shall provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph 15 for claims reasonably incurred by Boreas.

• (5) The fact that any work or thing has been executed or done with the consent of Boreas and in accordance with any conditions or restrictions prescribed by Boreas or in accordance with any plans approved by Boreas or to its satisfaction or in accordance with any directions or award of any arbitrator does not relieve the undertaker from any liability under this Part.

16

Any dispute arising between the undertaker and Boreas under this Part must be determined by arbitration under article 42 (arbitration).

PART 12 — For the protection of Eastern Power Networks Plc

Application

1

For the protection of the persons referred to in this part of this Schedule the following provisions will, unless otherwise agreed in writing between the undertaker and the person concerned, have effect.

Interpretation

2

In this Part of this Schedule—

• “1991 Act” means the New Roads and Street Works Act 1991;

• “alternative apparatus” means appropriate alternative apparatus to the satisfaction of the protected person to enable the protected person in question to fulfil its statutory functions in a manner no less efficient than previously;

• “apparatus” means in respect of the various protected persons means electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by that protected person;

• “commence” has the same meaning as in article 2 but for the purposes of this Part of Schedule 14 any works whatsoever which are near to or may affect apparatus of the protected person will be included within this definition and for the avoidance of doubt this includes works for the diversion or laying of services;

• “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” will include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of the protected person including construct, use, repair, alter, inspect, renew or remove the apparatus;

• “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 the works to be executed;

• “protected person” means any licence holder within the meaning of Part 1 of the Electricity Act 1989.

3

Except for paragraph 4 (apparatus in closed streets), and 9 (retained apparatus: protection), this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the protected person are regulated by the provisions of Part 3 of the 1991 Act (as if this Order did not apply).

Apparatus of Protected Persons in closed streets

4

Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 10 (temporary closure of streets), or otherwise under this Order, a protected person will be at liberty at all times to take all necessary access across any such closed highway or to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that highway subject always to the undertaking of works by the undertaker authorised by this Order.

Protective works to buildings

5

• (1) The undertaker, in the case of the powers conferred by this Order will so exercise those powers as not to obstruct or render less convenient the access to any apparatus without the written consent of the protected person and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of any protected person or any interruption in the supply of electricity, gas or water, as the case may be, by the protected person is caused, the undertaker will bear and pay on demand the cost reasonably incurred by that protected person in making good such damage or restoring the supply; and, subject to sub-paragraph ‎(2), will—

• (a) make compensation to the undertaker for any loss sustained by it; and

• (b) reimburse the protected person against all reasonably made claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by that protected person, by reason of any such damage or interruption.

• (2) Nothing in this paragraph will impose any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of a protected person or its contractors or workmen; and the protected person will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof will be made without first consulting the undertaker and giving it an opportunity to make representations as to the claim or demand.

Acquisition of land

6

Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker will not acquire any apparatus or override any easement or other interest of a protected person or acquire any land or other interest of a protected person or create any new rights over the same otherwise than by agreement of the protected person, such agreement not to be unreasonably withheld or delayed.

Removal of apparatus

7

• (1) If, in the exercise of agreement reached in accordance with paragraph 6 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus will not be removed under this part of this Schedule and any right of a protected person to maintain that apparatus in that land will not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of the protected person in question in accordance with sub-paragraphs ‎(2) to ‎(5) inclusive.

• (2) If, for the purpose of executing any 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 will give to the protected person in question 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 a protected person reasonably needs to remove any of its apparatus) the undertaker will, subject to sub‑paragraph ‎(3), afford to the protected person to their satisfaction (taking into account sub-paragraph 8(1) below) the necessary facilities and rights for—

• (a) the construction of alternative apparatus in other land of the undertaker; and

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

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph ‎(2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the protective person in question will, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation will not extend to the requirement for the protected person to use its compulsory purchase powers to this end unless it elects to so do.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this part of this Schedule will be constructed in such manner and in such line or situation as may be agreed between the protected person in question and the undertaker both acting reasonably.

• (5) The protected person in question will, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to the protected person of any such facilities and rights as are referred to in sub-paragraphs ‎(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.

Facilities and rights for alternative apparatus

8

• (1) Where, in accordance with the provisions of this part of this Schedule, the undertaker affords to a protected person facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights will be granted upon such terms and conditions as may be agreed between the undertaker and the protected person in question and will be no less favourable on the whole to the protected person in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless agreed by the protected person.

• (2) If the facilities and rights to be afforded by the undertaker and agreed with the protected person 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 the protected person in question 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 and, the arbitrator will make such provision for the payment of compensation by the undertaker to that protected person as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: Protection

9

• (1) Not less than 56 days before commencing the execution of any works authorised by 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 sub-paragraph 7(2) or otherwise, the undertaker will submit to the protected person in question a plan.

• (2) In relation to any works which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or involve embankment works within 15 metres of any apparatus, the plan to be submitted to the protected person under sub-paragraph ‎(1) will be detailed including a material statement and describing—

• (a) the exact position of the works;

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

• (c) the manner of their construction or renewal including details of excavation, positioning of plant;

• (d) the position of all apparatus; and

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

• (f) proposed mitigation required.

• (3) The undertaker will not commence the construction or renewal of any works to which sub- paragraph ‎(2) applies until the protected person has given written approval of the plan so submitted.

• (4) The protected person may require as a condition of their consent the undertaker to enter into an asset protection agreement in a form which is reasonably required by the protected person to ensure that the undertaker provides enough mitigation for the works.

• (5) Any approval of the protected person required under sub-paragraph ‎(2)—

• (a) may be given subject to reasonable conditions for any purpose mentioned in sub- paragraphs ‎(5) or ‎(7);

• (b) will not be unreasonably withheld or delayed;

• (c) will be deemed to be granted 14 days after the expiry of the 56 day period if no response to the request for approval has been provided within that initial 56 day period.

• (6) In relation to a work to which sub-paragraph ‎(2) applies, the protected person may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (7) Works executed under this Order will be executed only in accordance with the plan, submitted under sub-paragraph ‎(1) or as relevant sub-paragraph ‎(4), as amended from time to time by agreement between the undertaker and the protected person and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs ‎(5) or ‎(7) by the protected person for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the protected person will be entitled to watch and inspect the execution of those works.

• (8) Where any protected person requires any protective works to be carried out either by the protected person itself or by the undertaker (whether of a temporary or permanent nature) such protective works will be carried out to the protected person’s reasonable satisfaction prior to the carrying out of any works authorised by the Order (or any relevant part thereof) and the protected person in question will give 56 days’ notice of such works from the date of approval of a plan submitted in line with sub-paragraphs ‎(1) or ‎(4) (except in an emergency).

• (9) If a protected person in accordance with sub-paragraphs ‎(5) or ‎(7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 3 and 6 to 8 will apply as if the removal of the apparatus had been required by the undertaker under sub-paragraph 7(2).

• (10) Nothing in this paragraph will preclude the undertaker from submitting at any time or from time to time, but in no case will the execution of any works commence until 56 days have lapsed following submission of any 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; and

• (11) 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 will give to the protected person in question notice as soon as is reasonably practicable and a plan of those works and will comply with sub-paragraphs ‎(5), ‎(6) and ‎(7) insofar as is reasonably practicable in the circumstances.

Expenses

10

• (1) Subject to the following provisions of this paragraph, the undertaker will repay to a protected person on demand all charges, costs and expenses reasonably incurred by that protected person in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this Part of this Schedule including without limitation—

• (a) any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that the protected person elects to use compulsory purchase powers to acquire any necessary rights under sub-paragraph 7(3) all costs incurred as a result of such action;

• (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 protective works, plus a capitalised sum to cover the 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 in consequence of the execution of any such works referred to in 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 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 settled by arbitration in accordance with article 42 (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 the protected person in question by virtue of sub- paragraph (1) will be reduced by the amount of that excess save where it is not possible in the circumstances to obtain the existing type of operations, capacity, 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) An amount which apart from this sub-paragraph would be payable to a protected person 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 the protected person 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.

11

• (1) Subject to sub-paragraphs ‎(2) and ‎(3) of this paragraph 11, if by reason or in consequence of the execution of any works in, on, under or over any land purchased, held, appropriated or used under this Order, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a protected person, or there is any interruption in any service provided, or in the supply of any goods, by any protected person, the undertaker must bear and pay the cost reasonably incurred by that protected person in making good such damage or restoring the supply, and must—

• (a) make reasonable compensation to that protected person for any other expenses, loss, damages, penalty or costs incurred by the protected person; and

• (b) indemnify the protected person against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from, or incurred by, the protected person,

by reason or in consequence of any such damage or interruption; and the fact that any act or thing may have been done by the protected person on behalf the undertaker or in accordance with plans approved by the protected person or in accordance with any requirement of the protected person or under its supervision does not, subject to sub-paragraph ‎(2), excuse the undertaker from any liability under the provisions of this paragraph.

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

• (3) A protected person must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker, which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Enactments and agreements

12

Nothing in this part of this Schedule will affect the provisions of any enactment or agreement regulating the relations between the undertaker and a protected person 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

13

Where in consequence of the proposed construction of any of the authorised development, the undertaker or a protected person requires the removal of apparatus under sub-paragraph 7(2) or a protected person makes requirements for the protection or alteration of apparatus under sub- paragraph (9), the undertaker will use its best endeavours to co-ordinate the execution of the works in the interests of safety and the need to ensure the safe and efficient operation of the protected person’s undertaking taking into account the undertaker’s desire for the efficient and economic execution of the authorised development and the undertaker and each relevant protected person will co-operate with each other for those purposes.

Access

14

If in consequence of an agreement reached in accordance with sub-paragraph 6(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker will provide such alternative means of access to such apparatus as will enable the protected person to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

15

Save for differences or disputes arising under sub-paragraphs 7(2), 7(4), 8(1) and 9 any difference or dispute arising between the undertaker and a protected person under this Part of this Schedule will, unless otherwise agreed in writing between the undertaker and that protected person, be determined by arbitration in accordance with article 42 (arbitration).

PART 13 — For the protection of National Highways Limited

Application etc.

1

• (1) 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.

• (2) Except where expressly amended by the Order the operation of the powers and duties of National Highways or the Secretary of State under the 1980 Act, the 1984 Act, the 1991 Act, the Transport Act 2000, or Town and Country Planning (General Permitted Development) (England) Order 2015 which shall continue to apply in respect of the exercise of all National Highways’ statutory functions.

Interpretation

2

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

• (2) In this Part of this Schedule—

• “as built information” means one electronic copy of the following information—as constructed drawings in both PDF and AutoCAD DWG formats for anything designed by the undertaker; in compliance with Interim Advice Note 184 or any successor document;list of suppliers and materials used, as well as any relevant test results and ... CCTV surveys (if required to comply with DMRB standards);product data sheets and technical specifications for all materials used;as constructed information for any utilities discovered or moved during the works;method statements for the works carried out;in relation to road lighting, signs and traffic signals, any information required by Series 1300 and 1400 of the Specification for Highway Works or any replacement or modification of it;organisation and methods manuals for all products used;as constructed programme;test results and records as required by the detailed design information and during construction phase of the project;a stage 3 road safety audit subject to any exceptions to the road safety audit standard as agreed by the undertaker and National Highways;the health and safety file; andsuch other information as is 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.

• “the bond sum” means the sum equal to 200% of the cost of the carrying out the specified works (to include all costs plus any commuted sum) or such other sum agreed between the undertaker and National Highways;

• “the cash surety” means the sum agreed between the undertaker and National Highways;

• “commuted sum” means such sum calculated as provided for in paragraph 9 of this Part of this Schedule to be used to fund the future cost of maintaining the specified works;

• “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;

• “defects period” means the period from the date of the provisional certificate to the date of the final certificate which shall be no less than 12 months from the date of the provisional certificate;

• “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;road restraints systems and supporting road restraint risk appraisal process assessment;drainage and ducting as required by DMRB CD 535 Drainage asset data and risk management and DMRB CS551 Drainage surveys – standards for Highways;earthworks including supporting geotechnical assessments required by DMRB CD622 Managing geotechnical risk and any required strengthened earthworks appraisal form certification;pavement, pavement foundations, kerbs, footways and paved areas;traffic signs and road markings;traffic signal equipment and associated signal phasing and timing detail;road lighting (including columns and brackets);regime of California Bearing Ratio testing;electrical work for road lighting, traffic signs and signals;motorway communications as required by DMRB;highway structures and any required structural approval in principle;landscaping;proposed departures from DMRB standards;walking, cycling and horse-riding assessment and review report;stage 1 and stage 2 road safety audits and exceptions agreed;utilities diversions;topographical survey;maintenance and repair strategy in accordance with DMRB GD304 Designing health and safety into maintenance or any replacement or modification of it;health and safety information including any asbestos survey required by GG105 or any successor document; andother such information that may be required by National Highways to be used to inform the detailed design of the specified works;

• “DBFO contract” means the contract between National Highways and the highway operations and maintenance contractor for the maintenance and operation of parts of the strategic road network which are within the Order Limits or any successor or replacement contract that may be current at the relevant time;

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

• “final certificate” means the certificate relating to those aspects of the specified works that have resulted in any alteration to the strategic road network to be issued by National Highways pursuant to paragraph 9;

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

• “highway operations and maintenance contractor” means the contractor appointed by National Highways under the DBFO contract;

• “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;

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

• “provisional certificate” means the certificate of provisional completion relating to those aspects of the specified works that have resulted in any alteration to the strategic road network to be issued by National Highways in accordance with paragraph 7 when it considers the specified works are substantially complete and may be opened for traffic;

• “road safety audit” means an audit carried out in accordance with the road safety audit standard;

• “road safety audit standard” means DMRB Standard HD GG119 or any replacement or modification of it;

• “road space booking” means road space bookings in accordance with National Highways’ Asset Management Operational Requirements (AMOR) including Network Occupancy Management System (NOMS) used to manage road space bookings and network occupancy;

• “Specification for Highways Works” means the specification for highways works forming part of the manual of contract documents for highway works published by National Highways and setting out the requirements and approvals procedures for work, goods or materials used in the construction, improvement or maintenance of the strategic road network;

• “specified works” means so much of any work, including highway works and signalisation, authorised by this Order including any maintenance of that work, as is undertaken on, in, under or over the strategic road network for which National Highways is the highway authority;

• “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 for which National Highways is the highway authority;

• “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

• “winter maintenance” means maintenance of the road surface to deal with snow and ice.

• (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

3

In respect of any part of the strategic road network that is managed under a DBFO contract both National Highways and the highway operations and maintenance contractor shall have the benefit of this Part of Schedule 14 but for the purposes of any approvals required under this Part of Schedule 14 the undertaker shall liaise directly with National Highways.

4

Notwithstanding any limits of deviation permitted pursuant to the Order, no works in carrying out, maintaining or diverting the authorised development may be carried out under the strategic road network at a distance within 4 metres of the lowest point of the ground.

5

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.

Works outside the Order limits

6

If the undertaker proposes to carry out works to the strategic road network that are outside of the Order limits in connection with the authorised development, the undertaker must enter into an agreement with National Highways in respect of the carrying out of those works prior to the commencement of those works.

Prior approvals and security

7

• (1) The specified works must not commence until—

• (a) a stage 1 and stage 2 road safety audit has been carried out and all recommendations raised by them or any exceptions are approved by National Highways;

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

• (c) 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, incorporating all recommendations and any exceptions approved by National Highways under sub-paragraph ‎(a);

• (ii) details of the proposed road space bookings;

• (iii) the identity and qualification of the contractor and nominated persons;

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

• (v) information demonstrating that the walking, cycling and horse-riding assessment and review process undertaken by the undertaker in relation to the specified works has been adhered to in accordance with DMRB GG142 – Designing for walking, cycling and horse riding;

• (d) a scheme of traffic management has been submitted by the undertaker and approved by National Highways such scheme to be capable of amendment by agreement between the undertaker and National Highways from time to time;

• (e) stakeholder liaison has taken place in accordance with the process for such liaison agreed between the undertaker and National Highways under sub-paragraph ‎(c)(iv) above;

• (f) National Highways has approved the audit brief and CVs for all road safety audits and exceptions to items raised in accordance with the road safety audit standard;

• (g) the undertaker has agreed the estimate of the commuted sum with National Highways;

• (h) the scope of all maintenance operations (routine inspections, incident management, reactive and third party damage) to be carried out by the undertaker during the construction of the specified works (which must include winter maintenance) has been agreed in writing by National Highways:

• (i) the undertaker has procured to National Highways collateral warranties in a form approved by National Highways from the contractor and designer of the specified works in favour of National Highways to include covenants requiring the contractor and designer to exercise all reasonable skill, care and diligence in designing and constructing the specified works, including in the selection of materials, goods, equipment and plant; and

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

• (2) The undertaker must not exercise—

• (a) article 4 (maintenance of authorised development);

• (b) article 8 (street works);

• (c) article 10 (temporary closure of streets);

• (d) article 11 (temporary closure of public rights of way);

• (e) article 14 (discharge of water);

• (f) article 15 (protective works to buildings);

• (g) article 16 (authority to survey and investigate land);

• (h) article 17 (compulsory acquisition of land);

• (i) article 19 (compulsory acquisition of rights);

• (j) article 24 (rights under or over streets);

• (k) article 25 (temporary use of land for carrying out the authorised project);

• (l) article 26 (temporary use of land for maintaining the authorised project); or

• (m) article 33 (felling or lopping trees or removal of hedgerows) of this Order,

over any part of the strategic road network without the consent of National Highways, and National Highways may in connection with any such exercise require the undertaker to provide details of any proposed road space bookings and submit a scheme of traffic management as required for National Highways’ approval.

• (3) National Highways must prior to the commencement of the specified works or the exercise of any power referenced in sub-paragraph ‎(2) 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-paragraphs ‎(1) or ‎(2).

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

• (a) must not be unreasonably withheld;

• (b) must be given in writing;

• (c) shall be deemed to have been refused 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 within 2 months of receipt of the information to which the request for further particulars relates; and

• (d) may be subject to any 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 along with collateral warranties in a form agreed by National Highways.

• (6) Any change to the detailed design of the specified works must be approved by National Highways in accordance with sub-paragraph 7(1) of this Part.

Construction of the specified works

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

• (2) The undertaker must comply with National Highways’ road space booking procedures prior to and during the carrying out the specified works and no specified works for which a road space booking is required shall commence without a road space booking having first been secured from National Highways.

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

• (a) the relevant detailed design information and programme of works approved pursuant to sub-paragraph 7(1) above or as subsequently varied by agreement between the undertaker and National Highways;

• (b) the DMRB, the Manual of Contract Documents for Highway Works, including the Specification for Highway Works, together with all other relevant standards as required by National Highways to include, inter alia; all relevant interim advice notes, the Traffic Signs Manual and the Traffic Signs Regulations and General Directions 2016 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 and in particular the undertaker, as client, must ensure that all client duties (as defined in the said regulations) are undertaken to the satisfaction of National Highways.

• (4) 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.

• (5) 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.

• (6) 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.

• (7) If within 28 days on which a notice under sub-paragraph ‎(6) or sub-paragraph ‎(7) 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 incurred by National Highways in so doing, such sum to be payable within 30 days of demand.

• (8) 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.

• (9) In constructing the specified works, the undertaker must at its own expense divert or protect all utilities and all agreed alterations and reinstatement of highway over existing utilities must be constructed to the satisfaction of National Highways.

• (10) During the construction of the specified works the undertaker must carry out all maintenance (including winter maintenance) in accordance with the scope of maintenance operations agreed by National Highways pursuant to paragraph 7(1)(h) and the undertaker must carry out such maintenance at its own cost.

• (11) The undertaker must notify National Highways if it fails to complete the specified works in accordance with the agreed programme pursuant to paragraph 7(1)(b) of this Part or suspends the carrying out of any specified work beyond a reasonable period of time 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

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