The Sunnica Energy Farm Order 2024

Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.

120

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

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

• (c) by reason of any act or omission of the undertaker or any person in its employ or of its contractors or others whilst accessing to or egressing from the authorised development;

• (d) in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others;

• (e) in respect of costs incurred by Network Rail in complying with any railway operational procedures or obtaining any regulatory consents which procedures are required to be followed or consents obtained to facilitate the carrying out or operation of the authorised development;

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision must not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

• (2) Network Rail must—

• (a) give the undertaker reasonable written notice of any such claims or demands

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

• (c) take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands.

• (3) The sums payable by the undertaker under sub-paragraph (1) must if relevant include a sum equivalent to the relevant costs.

• (4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

• (5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

• (6) In this paragraph—

• “the relevant costs” means the costs, losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

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

121

Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 120) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

122

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

123

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

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

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

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

124

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

125

The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 31 (benefit of the Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

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

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

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

126

The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 37 (certification of plans and documents, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail.

127

In relation to any dispute arising under this Part of this Schedule (except for those disputes referred to in paragraph 116) the provisions of article 38 (arbitration) will not apply and any such dispute, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) to the President of the Institution of Civil Engineers.

PART 11 — FOR THE PROTECTION OF EAST OF ENGLAND AMBULANCE SERVICE NHS TRUST

Application

128

For the protection of East of England Ambulance Service NHS Trust as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and East of England Ambulance Service NHS Trust.

Site familiarisation

129

• (1) The undertaker must, prior to the date of final commissioning, use reasonable endeavours to facilitate a site familiarisation exercise in connection with the authorised development for the East of England Ambulance Service NHS Trust for the purpose of mitigating the potential impacts or risks associated with the authorised development.

• (2) Save where otherwise agreed in writing between East of England Ambulance Service NHS Trust and the undertaker, the undertaker must pay to East of England Ambulance Service NHS Trust the costs and expenses reasonably and properly incurred by East of England Ambulance Service NHS Trust in, or in connection with, its attendance at the site familiarisation exercise facilitated by the undertaker pursuant to sub-paragraph (1).

Arbitration

130

Any difference or dispute arising between the undertaker and East of England Ambulance Service NHS Trust under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and East of England Ambulance Service NHS Trust, be determined by arbitration in accordance with article 38 (arbitration).

PART 12 — FOR THE PROTECTION OF HPUT A LIMITED AND HPUT B LIMITED

Application

131

For the protection of HPUT and persons deriving title from HPUT the following provisions, unless otherwise agreed in writing at any time between the undertaker and HPUT, have effect.

Interpretation

132

In this Part of this Schedule—

• “Campus” means the land comprised in titles CB328220 and CB119083 registered at Land Registry on the date of this Order and shown for indicative purposes only edged red and dark blue respectively on the Campus plan;

• “Campus access road” means the area tinted brown and labelled “Campus access road” on the Campus plan;

• “Campus cable route corridor” means the land shown with a dashed purple line and labelled “Campus cable route corridor” on the Campus plan;

• “Campus laydown area” means the land tinted yellow and labelled “Campus laydown area” on the Campus plan and which, for the avoidance of doubt, includes the Campus cable route corridor;

• “Campus plan” means the drawing entitled Campus plan dated 21 March 2023 and given drawing reference 70050915-230118-WSP-PLN-AAA-001-BS-0 Rev 6 and certified by the Secretary of State as the Campus plan for the purposes of this Order;

• “Campus works area” means the Campus cable route corridor and the Campus laydown area;

• “HPUT” means—HPUT A LIMITED, a company incorporated and registered in England and Wales with company registration number 09389098; andHPUT B LIMITED, a company incorporated and registered in England and Wales with company registration number 09389118,both having their registered office at 250 Bishopsgate, London EC2M 4AA and in their capacity as nominees for and on behalf of NatWest Trustee and Depositary Services Limited as trustee and depositary (and not otherwise) of Federated Hermes Property Unit Trust and their successors in title to the freehold of the Campus or any part of it;

• “security fence” means the security fence to be installed by the undertaker pursuant to paragraph 135 (campus security) along the alignment indicated by a dashed green line and labelled “proposed security fence” on the Campus plan for the purposes of preventing any access by the undertaker from the Campus works area into the remainder of the Campus;

• “undertaker” includes—any person to whom the benefit of any or all of the provisions of the Order is transferred or granted pursuant to article 32 (consent to transfer benefit of the Order) (whether the consent of the Secretary of State is required or not); andany agents, contractors or subcontractors acting on behalf of the undertaker;

• “vibration criterion VC-B” is set out in Figure B.2 and Table B.3 of British Standard BS 5228-2:2009+A1:2014 on the date of this Order;

• “written agreement of HPUT” means a written agreement between (1) the undertaker and (2) HPUT from time to time;

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

Written Agreement of HPUT

133

• (1) Subject to sub-paragraph (2), the undertaker must not exercise any powers pursuant to this Order or the powers conferred by section 11(3) (powers of entry) of the 1965 Act, and such powers have no effect, in respect of HPUT’s interests in the Campus, the interests of any person deriving title from HPUT in relation to the Campus and any other tenants or occupiers of the Campus or those interests which benefit any of the aforementioned interests, including all rights, wayleaves and easements enjoyed by HPUT, or any person deriving title from it, in relation to the Campus including pursuant to any of—

• (a) article 12 (access to works);

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

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

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

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

• (f) article 20 (private rights);

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

• (h) article 25 (rights under and over streets);

• (i) article 26 (temporary use of land for constructing the authorised development);

• (j) article 27 (temporary use of land for maintaining the authorised development); or

• (k) article 35 (felling or lopping trees and removal of hedgerows),

unless the exercise of such powers is in accordance with the written agreement of HPUT.

• (2) The undertaker must not exercise any powers pursuant to this Order or the powers conferred by section 11(3) (powers of entry)of the 1965 Act to which sub-paragraph (1) refers, and such powers have no effect—

• (a) in respect of any part of the Campus (which for the avoidance of doubt includes the Campus access road) except, on the terms of this Part of this Schedule, the Campus works area;

• (b) so far as they affect any rights of which HPUT, or any person deriving title from HPUT in relation to the Campus, has the benefit pursuant to the transfer dated 7 March 1994 made between Horseracing Forensic Laboratory Limited, Frances Delia Sidebottom and Harry Sidebottom unless otherwise with the written agreement of HPUT.

Limits on the authorised development within the Campus

134

• (1) The undertaker must not carry out any of the authorised development within the Campus save within—

• (a) the Campus works area on the terms of this Part of this Schedule provided that, subject to paragraph (b), any works or structures placed within it are removed in accordance with paragraph 144 (reinstatement) of this Part of this Schedule;

• (b) the Campus cable route corridor on the terms of this Part of this Schedule provided that only below ground works or structures comprised in the authorised development may remain within it, save for a single access to the below ground works or structures comprised in the authorised development the details of which have been agreed in accordance with sub-paragraph (2), following reinstatement of the Campus cable route corridor in accordance with paragraph 144 (reinstatement) of this Part of this Schedule.

• (2) The undertaker must not lay any electrical cable within the Campus cable route corridor until it has submitted written details of Work No. 4(c) in the Campus cable route corridor to HPUT, such details to include the proposed location and dimensions for the single access to which paragraph 134(1)(b) refers which is not to exceed 2 metres by 2 metres wide and 2 metres deep, and the details have been approved by HPUT (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days following receipt of the written details) and the undertaker must comply with the approved details.

Campus security

135

• (1) The undertaker must install the security fence to the reasonable satisfaction of HPUT before either—

• (a) commencement of any of the authorised development and the beginning of any permitted preliminary works on the Campus works area (excluding the security fence);

• (b) the undertaker enters the Campus works area (except in connection with installation of the security fence),

unless the details approved by HPUT in respect of a particular survey or investigation pursuant to paragraph 146 (surveys and investigations) expressly set out that this is not necessary in relation to the survey or investigation.

• (2) The undertaker must not submit details of the proposed security fence to the relevant planning authority under requirement 11 (fencing and other means of enclosure) until it has submitted to HPUT written details of—

• (a) the proposed security fence; and

• (b) any measures on the Campus works area with which the undertaker must comply during installation of the proposed security fence, and the details have been approved by HPUT (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days following receipt of the written details) and the undertaker must comply with the details to which paragraph (a) refers as approved by the relevant planning authority under requirement 11 and with the details approved by HPUT to which paragraph (b) refers.

• (3) The undertaker must not at any time with or without vehicles enter upon any part of the Campus (which for the avoidance of doubt includes the Campus access road) except, on the terms of this Part of this Schedule, the Campus works area.

Work dates

136

• (1) The undertaker must not carry out any of the authorised development on the Campus works area until it has proposed and agreed the dates with HPUT (such agreement not to be unreasonably withheld or delayed and in any event given or refused no later than 40 working days following receipt of the written request) on which the authorised development on the Campus works area is to be carried out and—

• (a) the undertaker must not carry out the authorised development on the Campus works area (which includes there being no on-site presence by any personnel of the undertaker)—

• (i) other than on the agreed dates; and

• (ii) before a period of 20 working days has passed after the dates have been agreed;

• (b) the number of working days comprised in such dates, unless otherwise agreed in writing with HPUT (such agreement not to be unreasonably withheld or delayed) must not exceed 45.

• (2) This paragraph does not apply to surveys and investigations, in respect of which paragraph 146 (surveys and investigations) will apply.

Construction method and management scheme

137

• (1) The undertaker must submit a detailed construction method and management scheme in respect of that part of the authorised development to be carried out within the Campus works area no later than 40 working days prior to commencing it and must not carry out any part of the authorised development within the Campus works area until the scheme has been approved by HPUT (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days following receipt of the scheme); and the undertaker must comply with the approved scheme.

• (2) The construction method and management scheme must include details in respect of—

• (a) a construction programme specific to the authorised development on the Campus works area;

• (b) plans showing the extent of any part of the Campus works area to be used at any time for the purposes of constructing the authorised development on it;

• (c) the storage of plant and materials;

• (d) the location and height of all plant and construction equipment;

• (e) the location and size of compounds and welfare facilities;

• (f) the management and mitigation of dust emissions and odour;

• (g) the disposal of waste and other materials arising from the construction programme;

• (h) security measures during the carrying out of the authorised development including any fencing (but not the security fence to which paragraph 135 (campus security) instead applies) and any hoardings, any CCTV (including the location of cameras), any security lighting and a physical security presence where appropriate;

• (i) the lighting of works;

• (j) impacts on the Campus’s services and utilities (including surface water and foul drainage) throughout the carrying out of the authorised development (including interruption and disruption periods and emergency procedures) and appropriate management and mitigation measures;

• (k) emergency protocols, including a 24-hour contact number for emergencies;

• (l) any other matters relevant to the Campus and its operation.

• (3) The undertaker must not burn waste on the Campus works area at any time.

Noise and vibration

138

• (1) The undertaker must not carry out any part of the authorised development on the Campus works area until it has submitted a detailed noise and vibration management plan in respect of that part of the authorised development and the plan has been approved by HPUT (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days- following receipt of the plan); and the undertaker must comply with the approved plan.

• (2) The plan must include—

• (a) a list of all equipment likely to be a source of noise or vibration affecting the Campus;

• (b) noise and vibration predictions for the Campus;

• (c) measures to reduce noise and vibration;

• (d) measures to monitor compliance with this paragraph;

• (e) the sharing of compliance monitoring information with HPUT (to be no less than weekly for the duration of the construction period for the works in the Campus works area);

• (f) the procedure to be followed in the event of complaints (including a 24-hour contact number so that the undertaker may be contacted in the event of any issues).

• (3) The undertaker must not use vibrating rollers or impact-driven or vibro-hammer piling rigs on, and within 300 metres of, the Campus works area.

• (4) Noise levels at 1m from any office window at the Campus caused by the carrying out of the authorised development (including construction traffic) must not exceed 65 dB LAeq, 12hour between the hours of 07:00 – 19:00 Monday to Saturday and 65 dB LAeq 12 hour at other times.

• (5) Noise levels at 1m from any residential window at the Campus caused by the carrying out of the authorised development (including construction traffic) must not exceed 65 dB LAeq, 12hour between the hours of 07:00 – 19:00 Monday to Saturday and 45 dB LAeq 12 hour at other times.

• (6) Levels of vibration caused by the carrying out of the authorised development must not exceed vibration criterion VC-B measured on the floor of any building or part of a building on the Campus.

Construction hours

139

• (1) Subject to paragraph 136 (work dates) no part of the authorised development may be carried out on the Campus works area nor may any other powers pursuant to this Order be exercised on it—

• (a) other than between the hours of 07:00 and 19:00 on Mondays to Saturdays;

• (b) on Sundays and public holidays.

• (2) Sub-paragraph (1) does not apply in relation to—

• (a) cases of emergency;

• (b) overnight traffic management measures; and

• (c) activities otherwise agreed by the undertaker with HPUT in advance (such agreement not to be unreasonably withheld or delayed),

• (d) provided that in respect of paragraph (a) the undertaker provides HPUT with details of the emergency within 3 working days of its occurrence, in respect of paragraph (b) the undertaker has provided HPUT with no less than 10 working days written notice and in respect of paragraph (c) the undertaker’s request has been made in writing no less than 10 working days in advance.

Supervision

140

The undertaker must carry out the authorised development on the Campus works area under HPUT’s reasonable supervision (where given) and the undertaker must give HPUT all such access as it reasonably requires for those purposes.

Construction liaison

141

• (1) The undertaker must procure that a dedicated construction liaison officer will throughout the construction of the authorised development on the Campus works area—

• (a) respond to telephone calls and emails from HPUT between 07:00 and 19:00 hours Mondays to Saturdays (and at any time in case of emergencies or for the purposes of paragraphs 138(2)(f) and 139(2) of this Part of this Schedule) in respect of the construction of the authorised development;

• (b) arrange and hold meetings with HPUT no less than once a week (unless otherwise agreed in writing between HPUT and the undertaker) in respect of the construction of the authorised development on the Campus works area throughout the construction of that part of the authorised development; and the officer must issue minutes of each meeting to HPUT no later than 5 working days after each meeting;

• (c) resolve on behalf of the undertaker reasonable concerns raised by HPUT promptly in respect of the construction of the authorised development,

and the undertaker must not construct any part of the authorised development on the Campus works area until it has provided HPUT in writing with the contact details of the officer.

• (2) If HPUT does not consider that the undertaker (or dedicated construction liaison officer on its behalf) has resolved its reasonable concerns in respect of the carrying out of the authorised development pursuant to this paragraph it may require the matter to be settled in accordance with article 38 (arbitration).

Use of the Campus’s facilities

142

The undertaker may not use any of the Campus’s facilities (including its power supply) other than on such terms as the undertaker and HPUT agree in advance from time to time.

Health and safety

143

The undertaker must make the health and safety file maintained in respect of the authorised development on the Campus works area pursuant to the Construction (Design and Management) Regulations 2007⁸² available for inspection by HPUT at reasonable prior written notice.

Reinstatement

144

• (1) The undertaker must not carry out any part of the authorised development within the Campus works area until it has submitted a schedule of condition of that area and the schedule has been approved by HPUT (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days following receipt of the schedule).

• (2) The restriction on carrying out any part of the authorised development within the Campus works area to which sub-paragraph (1) refers does not apply in respect of non-intrusive surveys reasonably required for the preparation of the schedule to which the sub-paragraph refers which have been approved in advance in writing by HPUT and are carried out in accordance with such approval (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days following receipt of the schedule).

• (3) The undertaker must within 20 working days following the earlier of—

• (a) the authorised development on the Campus works area, once commenced, not having been carried out for more than 20 consecutive working days; or

• (b) completion of the authorised development on the Campus works area,

reinstate the Campus works area to the condition set out in the schedule of condition (unless otherwise agreed by HPUT and the undertaker acting reasonably) save for the below ground works or structures comprised in the authorised development and any means of access to those works the details of which have been agreed pursuant to paragraph 134 (limits on the authorised development within the Campus) of this Part of this Schedule and which must be in accordance with the details agreed in writing between HPUT and the undertaker.

Maintenance and decommissioning

145

• (1) Subject to sub-paragraph (2), the undertaker must not carry out any maintenance or decommissioning of the authorised development on the Campus works area, or enter upon any part of it, until it has submitted details of the proposed maintenance or decommissioning activities and measures proposed to mitigate any resulting adverse impacts on the operation of the Campus and the details have been approved by HPUT (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days of receipt of the written details); and—

• (a) such details must (unless otherwise agreed in writing between HPUT and the undertaker) accord with the principles of the provisions in this Part of this Schedule where relevant for the purposes of maintenance or decommissioning; and

• (b) the undertaker must comply with the approved details.

• (2) The undertaker must not use or enter upon any part of the Campus (which for the avoidance of doubt includes the Campus access road) to carry out any maintenance or decommissioning of the authorised development except, on the terms of this Part of this Schedule, the Campus works area, unless otherwise agreed in writing between HPUT in its absolute discretion and the undertaker.

Surveys and investigations

146

The undertaker must not carry out any surveys or investigations (including environmental surveys, geotechnical surveys, intrusive archaeological surveys and other investigations for the purpose of assessing ground conditions) on the Campus works area, or enter upon any part of it for such purposes, until it has submitted details of the proposed surveys or investigations and measures proposed to mitigate any resulting adverse impacts on the Campus works area or operation of the Campus and the details have been approved by HPUT (such approval not to be unreasonably withheld or delayed and in any event to be given or refused no later than 40 working days of receipt of the written details); and—

• (a) such details must (unless otherwise agreed in writing between HPUT and the undertaker) accord with the principles of the provisions in this Part of this Schedule where relevant for the purposes of the surveys or investigations in question; and

• (b) the undertaker must comply with the approved details.

Expenses

147

The undertaker must pay HPUT the reasonable expenses reasonably incurred by it (including by its solicitors, surveyors or other relevant consultants) for, or in connection with, the carrying out of the authorised development or any action required of HPUT in this Part of this Schedule including—

• (a) considering and giving any agreement or approval pursuant to this Part of this Schedule or otherwise required by the undertaker;

• (b) considering and liaising with the undertaker in respect of any compliance monitoring information provided by the undertaker pursuant to this Part of this Schedule;

• (c) HPUT’s reasonable supervision pursuant to paragraph 140 (Supervision) of this Part of this Schedule;

• (d) attending meetings with the undertaker during the construction, maintenance or decommissioning of the authorised development,

and it will be reasonable for HPUT to withhold its agreement or approval pursuant to the relevant provision of this Part of this Schedule if the undertaker does not in advance pay such expenses or provide a solicitor’s undertaking (from a firm of reasonably sufficient covenant strength) in respect of them.

Reasonableness

148

The undertaker and HPUT must act reasonably in respect of any given term of this Part of this Schedule and, in particular, (without prejudice to generality) where any consent, approval or expression of satisfaction is required by this Part of this Schedule it must not be unreasonably withheld or delayed (save in each aforementioned case except in respect of agreement by HPUT pursuant to paragraph 145(2) (maintenance and decommissioning)).

The HPUT Trustees

149

References in this Part of this Schedule to HPUT A Limited and HPUT B Limited (the “Nominees”) are only to them in their capacity as nominees for and on behalf of NatWest Trustee and Depositary Services Limited (“NatWest”). The same will be the case for any party succeeding them in their capacity as nominees for and on behalf of NatWest.

150

References in this Part of this Schedule to NatWest is to it solely in its capacity as trustee and depositary of Federated Hermes Property Unit Trust (the “Fund”). The same will be the case for any party succeeding NatWest in its capacity as trustee and depositary of the Fund.

PART 13 — FOR THE PROTECTION OF SOUTH STAFFORDSHIRE WATER PLC

Application

151

For the protection of SSW the following provisions have effect unless otherwise agreed in writing between Sunnica Limited (“Sunnica”) and SSW.

152

The provisions of Part 1 of Schedule 12 (Protective Provisions for the protection of Water Undertakers, etc.), in so far as they relate to the removal of apparatus, do not apply in relation to apparatus to which this Part of this Schedule applies.

153

This Part of this Schedule does not apply to apparatus in respect of which the relations between Sunnica and SSW are regulated by the provisions of Part 3 of the 1991 Act.

Interpretation

154

In this Part of this Schedule—

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

• “apparatus” means—mains, pipes or other apparatus belonging to or maintained by SSW for the purposes of water supply;any drain or works vested in SSW under the Water Industry Act 1991; andany sewer which is so vested in SSW or is the subject of a notice of intention to adopt by SSW given under section 102(4) of that Act or an agreement to adopt by SSW made under section 104 of that Act,and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “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;

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

• “SSW” means South Staffordshire Water Plc and includes its successors in function or any successor in respect of any land interests or any successor as a water undertaker within the meaning of the Water Industry Act 1991.

Acquisition of apparatus

155

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

Alternative apparatus

156

• (1) If, in the exercise of the powers conferred by this Order, Sunnica acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule, and any right of SSW to maintain that apparatus in that land must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of SSW.

• (2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, Sunnica requires the removal of any apparatus placed in that land, it must give to SSW written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed.

• (3) The proposed position of the alternative apparatus to be provided or constructed is subject to approval by SSW (such approval not to be unreasonably withheld or delayed). In the event that SSW (acting reasonably) considers the proposed position of the alternative apparatus to be unsuitable, SSW must (acting reasonably) propose an alternative position for the alternative apparatus and must give Sunnica written notice of such alternative position for the alternative apparatus within 28 days of the service of a notice under sub-paragraph (2). Any dispute regarding the alternative apparatus (including but not limited to the proposed position or the alternative proposed position) which cannot be agreed between the parties is to be determined in accordance with article 38 (arbitration).

• (4) Any alternative apparatus to be constructed in land of Sunnica under this Part of this Schedule is to be constructed in such manner and in such line or situation as may be agreed between SSW and Sunnica such agreement to be within 28 days of the service of a notice under sub-paragraph (2) (or within 28 days of service of a notice under sub-paragraph (3) where SSW has proposed an alternative position for the alternative apparatus under sub-paragraph (3) which is acceptable to Sunnica) or in default of such agreement settled by arbitration in accordance with article 38 (arbitration).

• (5) In any case where alternative apparatus is to be provided or constructed under sub-paragraphs (2) or (3), or if in consequence of the exercise of any of the powers conferred by this Order SSW reasonably needs to remove any of its apparatus, Sunnica must, subject to sub-paragraph (6), afford to SSW the necessary facilities and rights for the construction of alternative apparatus in other land of Sunnica and subsequently for the maintenance of that apparatus and SSW is entitled to recover its reasonable costs incurred in securing such necessary facilities and rights from Sunnica subject to paragraph 159(3) below.

• (6) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of Sunnica, or Sunnica is unable to afford such facilities and rights as are mentioned in sub-paragraph (5), in the land in which the alternative apparatus or part of such apparatus is to be constructed, SSW must, on receipt of a written notice to that effect from Sunnica, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (7) SSW must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 38 (arbitration), and after the grant to SSW of any such facilities and rights as are referred to in sub-paragraph (5) or (6), proceed without unreasonable delay (having regard to the operational requirements of SSW) to construct and bring into operation the alternative apparatus and subsequently to allow Sunnica to remove any apparatus as required to be removed by Sunnica (acting reasonably) under the provisions of this Part of this Schedule PROVIDED THAT to the extent that any reasonable costs are incurred by SSW as a result of the removal of such apparatus then such reasonable costs are recoverable in full from Sunnica.

• (8) Regardless of anything in sub-paragraph (7), if Sunnica gives notice in writing to SSW that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of Sunnica, that work, instead of being executed by SSW, must be executed by Sunnica without unreasonable delay under the superintendence, if given, and to the reasonable satisfaction of SSW.

• (9) Nothing in sub-paragraph (8) authorises Sunnica to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 6 metres of the apparatus without the written consent of SSW (such consent not to be unreasonably withheld or denied).

• (10) In relation to any works which will or may be situated on, over or within 6 metres measured in any direction of any apparatus, the plan to be submitted to SSW under sub-paragraph (1) must be detailed, include a method statement and describe—

• (a) the exact position of the works;

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

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

• (d) the position of all apparatus including existing apparatus and apparatus to be retained;

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

• (f) any maintenance required.

157

• (1) Where, in accordance with the provisions of this Part of this Schedule, Sunnica affords to SSW facilities and rights for the construction and maintenance in land of Sunnica 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 Sunnica and SSW or in default of agreement settled by arbitration in accordance with article 38 (arbitration).

• (2) In settling those terms and conditions in respect of alternative apparatus to be constructed within 6 metres of any existing apparatus of SSW, the arbitrator must—

• (a) give effect to all reasonable requirements of SSW for ensuring the protection of the existing apparatus and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with the existing apparatus; and

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

• (3) If the facilities and rights to be afforded by Sunnica 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 SSW than the facilities and rights enjoyed by SSW 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 Sunnica to SSW as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Existing apparatus: protection and access

158

• (1) Not less than 42 days before starting the execution of any of the authorised works that are near to, or will or may affect, any apparatus the removal of which has not been required by Sunnica under paragraph 156(2), Sunnica must submit to SSW a plan, section and description of the works to be executed.

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

• (3) Any requirements made by SSW under sub-paragraph (2) must be made within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

• (4) If SSW in accordance with sub-paragraph (3) and in consequence of the works proposed by Sunnica, reasonably requires the removal of any apparatus and gives written notice to Sunnica of that requirement, paragraphs 151 to 157 apply as if the removal of the apparatus had been required by Sunnica under paragraph 156(2).

• (5) Nothing in this paragraph precludes Sunnica from submitting at any time or from time to time, but in no case less than 42 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

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

Expenses

159

• (1) Subject to the following provisions of this paragraph, Sunnica must repay to SSW the reasonable expenses incurred by SSW in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus (including reasonable costs or compensation payable in connection with the acquisition of land for that purpose) which may be required in consequence of the execution of any of the authorised works.

• (2) The value of any apparatus removed under the provisions of this Part of this Schedule (other than apparatus that is re-used by SSW acting reasonably as alternative apparatus) is to be deducted from any sum payable under sub-paragraph (1), 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 except where this has been solely due to using the nearest currently available type; or

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by Sunnica or, in default of agreement, is not determined by arbitration in accordance with article 38 (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 type, capacity, dimensions, or at the existing depth required to maintain the existing operational requirement, as the case may be, the amount which apart from this paragraph would be payable to SSW by virtue of sub-paragraph (1) is to be reduced by the amount of that excess (save to the extent that it is not possible in the circumstances (or it would be unlawful due to a statutory or regulatory change) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth).

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

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

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

• (5) An amount which apart from this sub-paragraph would be payable to SSW in respect of works under sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on SSW 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) Any dispute as to whether a financial benefit is conferred in accordance with sub-paragraph (5) or as to the amount of such financial benefit which cannot be agreed is to be determined in accordance with article 38 (arbitration).

Damage to apparatus: costs, losses, etc.

160

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the authorised works 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 SSW or there is any interruption in any service provided or in the supply of any goods by SSW, Sunnica must—

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

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

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

• (3) SSW must give Sunnica reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of Sunnica (such consent not to be unreasonably withheld or delayed) and in the event of any dispute to be settled by arbitration in accordance with article 38 (arbitration).

Enactments and agreements

161

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

PART 14 — FOR THE PROTECTION OF SUFFOLK COUNTY COUNCIL AND CAMBRIDGESHIRE COUNTY COUNCIL

162

The provisions of this Part of this Schedule have effect for the protection of Suffolk County Council and Cambridgeshire County Council unless otherwise agreed in writing between the undertaker and Suffolk County Council or Cambridgeshire County Council.

163

Where Suffolk County Council or Cambridgeshire County Council are the drainage authority, Part 8 of this Schedule shall apply with the following amendments—

• (a) In sub-paragraph 90(1), for “14 days” substitute “28 days”;

• (b) In sub-paragraph 90(3)(b), for “28 days” substitute “2 months”;

• (c) In paragraph 94, for “make reasonable compensation for”, substitute “repay to the drainage authority all reasonable”; and

• (d) In paragraph 95, for “make reasonable compensation for” substitute “compensate the drainage authority for all”.

SCHEDULE 13 — PROCEDURE FOR DISCHARGE

Interpretation

1

In this Schedule—

• “appeal documentation” means a written statement of appeal which describes the nature of the differences between the parties, the factual issues, the undertaker’s case and evidence relied on;

• “business day” means a day other than a Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971⁸³;

• “relevant authority” means any person, authority or body, other than the Secretary of State, named in any of the provisions of this Order and whose consent, agreement or approval is sought; and

• “requirement consultee” means any body or authority named in a requirement as a body to be consulted by the relevant planning authority in discharging that requirement.

Applications made under provisions of this Order

2

• (1) Where an application has been made to the relevant authority for any consent, agreement or approval required or contemplated by any of the provisions of this Order (including consent, agreement or approval in respect of part of a requirement) the relevant authority must give notice to the undertaker of their decision on the application within—

• (a) in respect of all provisions (including the requirements in Schedule 2 (requirements)) a period of 56 days beginning with the day immediately following that on which the application is received by the relevant authority;

• (b) where further information is requested under paragraph 3 of this Schedule (further information and consultation), a period of 56 days beginning with the day immediately following that on which further information has been supplied by the undertaker; or

• (c) such period that is longer than the periods in sub-paragraphs (a) or (b) as may be agreed in writing by the undertaker and the relevant authority before the end of such period.

• (2) In determining any application made to the relevant authority for any consent, agreement or approval required or contemplated by any of the provisions of this Order (including consent, agreement or approval in respect of part of a requirement), the relevant authority may—

• (a) give or refuse its consent, agreement or approval; or

• (b) give its consent, agreement or approval subject to reasonable conditions,

and where consent, agreement or approval is refused or granted subject to reasonable conditions the relevant authority must provide its reasons for that decision within the notice of the decision.

• (3) Subject to sub-paragraph (4), in the event that the relevant authority does not determine an application within the period set out in sub-paragraph (1), the relevant authority is to be taken to have granted all parts of the application (without any condition or qualification) at the end of that period.

• (4) Where an application has been made to the relevant authority for any consent, agreement or approval required by a requirement included in this Order, and—

• (a) the relevant authority does not determine the application within the period set out in sub-paragraph (1) and such application is accompanied by a report which states that the subject matter of such application is likely to give rise to any materially new or materially different environmental effects compared to those in the environmental statement; or

• (b) the relevant authority determines during the period set out in sub-paragraph (1) that it considers that the subject matter of such application will give rise to any materially new or materially different environmental effects compared to those in the environmental statement.

then the application is to be taken to have been refused by the relevant authority at the end of that period.

• (5) The undertaker must include in any application made to the relevant authority for any consent, agreement or approval required or contemplated by any of the provisions of this Order a statement that the provisions of sub-paragraph (3) apply and, if the application fails to do so, it is to be null and void.

• (6) In the case of requirements in respect of which—

• (a) West Suffolk Council is the discharging authority under Schedule 2 of this Order, West Suffolk Council must consult with Suffolk County Council;

• (b) Suffolk County Council is the discharging authority under Schedule 2 of this Order, Suffolk County Council must consult with West Suffolk Council;

• (c) East Cambridgeshire District Council is the discharging authority under Schedule 2 of this Order, East Cambridgeshire District Council must consult with Cambridgeshire County Council; and

• (d) Cambridgeshire County Council is the discharging authority under Schedule 2 of this Order, Cambridgeshire County Council must consult with East Cambridgeshire District Council.

Further information and consultation

3

• (1) In relation to any application made under paragraph 2, the relevant authority may request such reasonable further information from the undertaker as is necessary to enable it to consider the application.

• (2) In the event that the relevant authority considers additional further information to be necessary and the provision governing or requiring the application does not specify that consultation with a requirement consultee is required the relevant authority must, within 14 business days of receipt of the application, notify the undertaker in writing specifying the additional further information required.

• (3) If the provision governing or requiring the application specifies that consultation with a requirement consultee is required, the relevant authority must issue the consultation to the requirement consultee within five business days of receipt of the application, and must notify the undertaker in writing specifying any additional further information requested by the requirement consultee within 14 business days of receipt of the application.

• (4) In the event that the relevant authority does not give notification as specified in sub-paragraph (2) or (3) it is to be deemed to have sufficient information to consider the application and is not thereafter entitled to request additional further information without the prior agreement of the undertaker.

Appeals

4

• (1) The undertaker may appeal in the event that—

• (a) the relevant authority refuses (including a deemed refusal pursuant to paragraph 2(4)) an application for any consent, agreement or approval required by an article or requirement included in this Order or grants it subject to conditions;

• (b) on receipt of a request for further information pursuant to paragraph 3 the undertaker considers that either the whole or part of the specified information requested by the relevant authority is not necessary for consideration of the application; or

• (c) on receipt of any further information requested, the relevant authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.

• (2) The appeal process is to be as follows—

• (a) any appeal by the undertaker must be made within 42 days of the date of the notice of the decision or determination giving rise to the appeal referred to in sub-paragraph (1);

• (b) the undertaker must submit the appeal documentation to the Secretary of State and must on the same day provide copies of the appeal documentation to the relevant authority and any consultee required to be consulted pursuant to the provision of this Order which is the subject of the appeal (together with the undertaker, these are the “appeal parties”);

• (c) as soon as is practicable after receiving the appeal documentation, the Secretary of State must appoint a person to determine the appeal and must forthwith notify the appeal parties of the identity of the appointed person and the address to which all correspondence for his attention should be sent, the date of such notification being the “start date” for the purposes of this sub-paragraph (2);

• (d) the relevant authority and any consultee required to be consulted pursuant to the provision of this Order which is the subject of the appeal must submit written representations to the appointed person in respect of the appeal within 20 business days of the start date and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

• (e) the undertaker must make any counter-submissions to the appointed person within 20 business days of receipt of written representations pursuant to sub-paragraph (d) above; and

• (f) the appointed person must make his decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable and in any event within 30 business days of the deadline for the receipt of counter-submissions pursuant to sub-paragraph (e).

• (3) The appointment of the person pursuant to sub-paragraph (2)(c) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.

• (4) In the event that the appointed person considers that further information is necessary to enable him to consider the appeal he must, notify the appeal parties in writing specifying the further information required and the date by which the information is to be submitted and the appointed person must set the date for the receipt of such further information having regard to the timescales in sub-paragraph (2).

• (5) Any further information required pursuant to sub-paragraph (4) must be provided by the appeal parties to the appointed person on the date specified by the appointed person (the “specified date”), and the appointed person must notify the appeal parties of the revised timetable for the appeal on or before that day. The revised timetable for the appeal must require submission of any written representations on the submitted further information to the appointed person within 10 business days of the specified date but otherwise is to be in accordance with the process and time limits set out in sub-paragraphs (2)(d) to (2)(f).

• (6) On an appeal under this paragraph, the appointed person may—

• (a) allow or dismiss the appeal; or

• (b) reverse or vary any part of the decision or determination of the relevant authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to him in the first instance.

• (7) The appointed person may proceed to a decision on an appeal taking into account only such written representations as have been sent within the relevant time limits.

• (8) The appointed person may proceed to a decision even though no written representations have been made within the relevant time limits, if it appears to him that there is sufficient material to enable a decision to be made on the merits of the case.

• (9) The decision of the appointed person on an appeal is to be final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.

• (10) If an approval is given by the appointed person pursuant to this Schedule, it is to be deemed to be an approval as if it had been given by the relevant authority. The relevant authority may confirm any determination given by the appointed person in identical form in writing but a failure to give such confirmation (or a failure to give it in identical form) is not to be taken to affect or invalidate the effect of the appointed person’s determination.

• (11) Save where a direction is given pursuant to sub-paragraph (12) requiring the costs of the appointed person to be paid by the relevant authority, the reasonable costs of the appointed person must be met by the undertaker.

• (12) On application by the relevant authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to Planning Practice Guidance: Appeals (March 2014) or any circular or guidance which may from time to time replace it.

Fees

5

• (1) Where an application is made to the relevant authority for consent, agreement or approval in respect of a requirement only, a fee is to be paid to that relevant authority as follows—