The West Burton Solar Project Order 2025

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

• (2) The undertaker must not, in the exercise of the powers conferred by this Order, do or fail to do anything which is inconsistent with or would cause the Canal & River Trust to be in breach of its waste permit.

• (3) The undertaker must not exercise any power conferred by this Order to discharge water into the waterway under article ‎16 (discharge of water) or in any way interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of the Canal & River Trust, save as to surface water discharge which will not require the consent of the Canal & River Trust.

• (4) The undertaker must not exercise the powers conferred by article 18 (authority to survey and investigate the land) or section 11(3) of the 1965 Act, in relation to the waterway unless such exercise is with the consent of the Canal & River Trust.

• (5) The undertaker must not exercise any power conferred by article ‎29 (temporary use of land for constructing the authorised development), article ‎30 (temporary use of land for maintaining the authorised development) or article ‎38 (felling or lopping of trees and removal of hedgerows) in respect of the waterway unless such exercise is with the consent of the Canal & River Trust.

• (6) The undertaker must not exercise any power conferred by article 19 (compulsory acquisition of land), article ‎22 (compulsory acquisition of rights), article ‎25 (acquisition of subsoil) or article ‎31 (statutory undertakers) in respect of the Canal & River Trust’s interests in the waterway unless such exercise is with the consent of the Canal & River Trust.

• (7) The consent of the Canal & River Trust pursuant to sub-paragraphs ‎(1) to ‎(6) must not be unreasonably withheld or delayed but may be given subject to reasonable terms and conditions provided that it will not be reasonable for the Canal & River Trust to withhold or delay consent or impose terms and conditions that would prevent the undertaker from complying with the protective provisions in this Part of this Schedule or any condition contained in Schedule 2 (requirements).

Fencing

171

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

Survey of waterway

172

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

• (2) The design of and methods proposed to be used for the survey are to be approved by the Canal & River Trust and the undertaker.

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

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

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

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

Approval of plans, protective works, etc.

173

• (1) The undertaker must before commencing construction of any specified work including any temporary works supply to the Canal & River Trust proper and sufficient plans of that work, on the Canal & River Trust forms, having regard to the code of practice and such further particulars available to it as the Canal & River Trust may within 14 working days of the submission of the plans reasonably require for the approval of the engineer and must not commence such construction of a specified work until plans of that work have been approved in writing by the engineer or settled by arbitration.

• (2) The approval of the engineer under sub-paragraph ‎(1) must not be unreasonably withheld or delayed, and if within 25 working days after such plans (including any other particulars reasonably required under sub-paragraph ‎(1)) have been received by the Canal & River Trust the engineer has not intimated disapproval of those plans and the grounds of disapproval, the engineer is deemed to have approved the plans as submitted.

• (3) An approval of the engineer under this paragraph is not deemed to have been unreasonably withheld if approval within the time limited by sub-paragraph ‎(2) has not been given pending the outcome of any consultation on the approval in question that the Canal & River Trust is obliged to carry out in the proper exercise of its functions, provided prior written notice of such consultation has been provided by the Canal & River Trust to the undertaker.

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

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

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

and such protective works must be constructed by the undertaker or by the Canal & River Trust at the undertaker’s request with all reasonable dispatch and the undertaker must not commence the construction of a specified work until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction such consent not to be unreasonably withheld or delayed.

• (5) The withholding of an approval of the engineer under this paragraph will be deemed to be unreasonable if it would prevent the undertaker from complying with any condition contained in Schedule 2 (requirements).

• (6) The undertaker must pay to the Canal & River Trust a capitalised sum representing any reasonably increased and additional cost of maintaining and, when necessary, renewing any works, including any permanent protective works provided under sub-paragraph ‎(4), and of carrying out any additional dredging of the waterway reasonably necessitated by the exercise of any of the powers under this Order but if the cost of maintaining the waterway, or of works of renewal of the waterway, is reduced in consequence of any such works, a capitalised sum representing such reasonable saving is to be set off against any sum payable by the undertaker to the Canal & River Trust under this paragraph.

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

Design of works

174

Without prejudice to its obligations under the foregoing provisions of this Part of this Schedule the undertaker must consult, collaborate and respond constructively to any reasonable approach, suggestion, proposal or initiative made by the Canal & River Trust on—

• (a) the design of the specified works;

• (b) the environmental effects of those works;

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

• (c) amendments or alterations to the construction environmental management plan, landscape and ecological management plan, operational environmental management plan, decommissioning plan (as may be approved pursuant to Schedule 2) in respect of a specified work or a protective work or otherwise in connection with the waterway.

Notice of works

175

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

Construction of specified works

176

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

• (a) with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled as aforesaid and with any specifications made under paragraph ‎173 (approval of plans, protective works, etc.) and paragraph ‎174 (design of works);

• (b) under the supervision (if given) and to the reasonable satisfaction of the engineer;

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

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

• (e) in such a manner as to ensure that no materials are discharged or deposited into the waterway otherwise than in accordance with article ‎16 (discharge of water); and

• (f) in compliance with the code of practice (where appropriate and where consistent with the exercise of powers pursuant to this Order and for the timely, safe, economic and efficient delivery of the authorised works).

• (2) Nothing in this Order authorises the undertaker to make or maintain any permanent works in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which the Canal & River Trust is required by section 105(1)(b) and (2) of the Transport Act 1968 to maintain the waterway.

• (3) Following the completion of the construction of the specified works the undertaker must restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of those works unless otherwise agreed between the undertaker and the Canal & River Trust and save to the extent that any deterioration to the condition of the waterway is not caused by the construction of the specified works.

• (4) In assessing whether the condition of the waterway is no less satisfactory than immediately prior to the works pursuant to sub-paragraph ‎(3), the Canal & River Trust and the undertaker must take account of any survey issued pursuant to paragraph ‎172 (survey of waterway) and any other information agreed between them pursuant to this Part.

Prevention of pollution

177

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

Access to work – provision of information

178

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

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

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

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

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

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

Alterations to the waterway

179

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

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

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

180

• (1) The undertaker must repay to the Canal & River Trust in accordance with the code of practice all fees, costs, charges and expenses reasonably incurred by the Canal & River Trust—

• (a) in constructing any protective works under the provisions of paragraph ‎173(4)(a); (approval of plans, protective provisions, etc.);

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

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

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

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

• (2) If the Canal & River Trust considers that a fee, charge, cost or expense will be payable by the undertaker pursuant to sub-paragraph ‎(1), the Canal & River Trust will first provide an estimate of that fee, charge, cost or expense and supporting information in relation to the estimate to the undertaker along with a proposed timescale for payment for consideration and the undertaker may, within a period of 14 working days—

• (a) provide confirmation to the Canal & River Trust that the estimate is agreed and pay to the Canal & River Trust, by the date stipulated, that fee, charge, cost or expense; or

• (b) provide confirmation to the Canal & River Trust that the estimate is not accepted along with a revised estimate and a proposal as to how or why the undertaker considers that the estimate can be reduced and/or paid at a later date.

• (3) The Canal & River Trust must take into account any representations made by the undertaker in accordance with this paragraph and must, within 15 working days of receipt of the information pursuant to sub-paragraph ‎(1), confirm the amount of the fee, charge, cost or expense to be paid by the undertaker (if any) and the date by which this is to be paid.

• (4) The Canal & River Trust must, when estimating and incurring any charge, cost or expense pursuant to this paragraph, do so with a view to being reasonably economic and acting as if the Canal & River Trust were itself to fund the relevant fee, charge, cost or expense.

Making good of detriment; compensation and indemnity, etc.

181

• (1) If any detriment is caused by the construction or failure of the specified works or the protective works if carried out by the undertaker, the undertaker (if so required by the Canal & River Trust) must make good such detriment and must pay to the Canal & River Trust all reasonable expenses incurred by the Canal & River Trust, and compensation for any loss sustained by the Canal & River Trust in making good or otherwise by reason of the detriment.

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

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

• (b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction of a specified work or protective work and subject to sub-paragraph ‎(4), the undertaker must effectively indemnify and hold harmless the Canal & River Trust from and against all claims and demands arising out of or in connection with any of the matters referred to in paragraphs ‎(a) and ‎(b) (provided that the Canal & River Trust is not entitled to recover from the undertaker any consequential losses which are not reasonably foreseeable).

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

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

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

• (6) The Canal & River Trust 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 applies. If requested to do so by the undertaker, the Canal & River Trust must provide an explanation of how the claim has been minimised.

Arbitration

182

Any difference arising between the undertaker and the Canal & River Trust under this Part (other than a difference as to the meaning or construction of this Part) must be referred to and settled by arbitration in accordance with article ‎42 (arbitration).

Capitalised sums

183

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

• (2) The aggregate cap of the undertaker’s gross liability to pay capitalised sums and any other payments or liabilities under the terms of this Part of this Schedule shall be limited to £5,000,000 (five million pounds) for any one occurrence or all occurrences of a series arising out of the one original cause.

As built drawings

184

As soon as reasonably practicable following the completion of the construction of the authorised development, the undertaker must provide to the Canal & River Trust as built drawings of any specified works in a form and scale to be agreed between the undertaker and the Canal & River Trust to show the position of those works in relation to the waterway.

Decommissioning

185

Where the decommissioning plan identifies activities which may impact the waterway, the protective provisions in this Part of this Schedule will, so far as appropriate, apply to those activities as if they were a specified work.

PART 14 — FOR THE PROTECTION OF UNIPER UK LIMITED

186

For the protection of Uniper as referred to in this Part of this Schedule the following provisions will, unless otherwise agreed in writing between the undertaker and Uniper, have effect.

187

In this Part of this Schedule—

• “acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than—“A-” if the rating is assigned by Standard & Poor’s Ratings Group or Fitch Ratings; and“A3” if the rating is assigned by Moody’s Investors Services Inc.;

• “acceptable insurance” means a third party liability insurance effected and maintained by the undertaker or its contractor with a limit of indemnity of not less than £50,000,000 (fifty million pounds) per occurrence or series of occurrences arising out of one event or such lower amount as approved by Uniper, whether arising pursuant to the undertaker or any person on its behalf, arranged with an internationally recognised insurer of repute operating in the London and worldwide insurance market underwriters whose security/credit rating meets the same requirements as an “acceptable credit provider” (including any replacement insurance pursuant to paragraph ‎195(6)), such insurance to be maintained for the construction and operational period of that part or parts of the authorised development which constitute specified works and such policy must include (but without limitation)—a waiver of subrogation and an indemnity to principal clause in favour of Uniper; andcontractors’ pollution liability for third party property damage and third party bodily damage arising from pollution, contamination or environmental harm with cover of £10,000,000 (ten million pounds) per event or £20,000,000 (twenty million pounds) in aggregate;

• “acceptable security” means either—a parent company guarantee from a parent company in favour of Uniper to cover the undertaker’s liability to Uniper to a cap of not less than £10,000,000 (ten million pounds) per asset per event up to a total liability cap of £25,000,000 (twenty-five million pounds) (in a form reasonably satisfactory to Uniper and where required by Uniper, accompanied by a legal opinion confirming the due capacity and authorisation of the parent company to enter into and be bound by the terms of such guarantee) including any replacement parent company pursuant to paragraph ‎195(6); ora bank bond or letter of credit from an acceptable credit provider in favour of Uniper to cover the undertaker’s liability to Uniper for an amount of not less than £10,000,000 (ten million pounds) per asset per event up to a total liability cap of £25,000,000 (twenty-five million pounds) (in a form reasonably satisfactory to Uniper) which includes any replacement bank bond or letter of credit pursuant to paragraph ‎195(6);

• “alternative apparatus” means alternative apparatus to the satisfaction of Uniper to enable Uniper to fulfil its functions in a manner no less efficient than previously;

• “apparatus” means—any fixed and moveable items, which forms, or may form, part of Uniper’s system, including cavities, chambers, pipelines, valves, ventilators, pumps, compressors, pumping or compression systems, control systems and any associated cables (including high voltage, low voltage and datacoms) and any equipment in which electrical conductors are used, supported, or otherwise form, or may form, part of the system, cathodic protection systems, roads, compounds and equipment owned by Uniper; orany other equipment or apparatus belonging to or maintained by Uniper or apparatus and such other equipment or apparatus constructed that becomes operational for the purposes of Uniper’s functions including any structure in which equipment or apparatus is, or will be, lodged or which gives, or will give, access to apparatus; orany replacement equipment or apparatus as required or determined by Uniper;

• “applicable law” means any applicable legislation, statutes, directives, regulations (including safety regulations), judgments, decisions, decrees, orders and other legislative measures or decisions having the force of law, treaties, conventions and other agreements between states, or between states and the European Union or other supranational bodies, rules of common law, customary law and equity and all civil or other codes and all other laws of, or having effect in, any jurisdiction from time to time in each case to the extent the same is legally binding upon the relevant person;

• “as-built records” means each as-built record or document prepared by the undertaker or delivered to the undertaker by its subcontractors or any other person carrying out the specified works;

• “authorised development” has the same meaning as in article 2 of this Order and includes any associated development authorised by this Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Part of this Schedule;

• “commence” has the same meaning as in article ‎2 of this Order and “commencement” will be construed to have the same meaning save that for the purposes of this Part of this Schedule the terms “commence” and “commencement” include operations consisting of ecological or archaeological investigations, investigations for the purpose of assessing and monitoring ground conditions and levels (including drilling and making trial or bore holes), remedial work in respect of any pollution, contamination or other adverse ground conditions, erection of any temporary means of enclosure, receipt and erection of construction plant and equipment, diversion and laying of underground apparatus (including cables) and site clearance (including removal of vegetation) or any other activities being undertaken under, over, across, along or upon the apparatus or alternative apparatus in land;

• “confidential information” means information exchanged during the negotiation or performance of this Part of this Schedule, which is identified in writing by the furnishing party as being confidential at the time of disclosure to the other party;

• “deed of consent” means a deed of consent, crossing or proximity agreement, deed of easement, deed of variation or new deed of grant agreed between the parties;

• “emergency works” has the meaning given to it in section 52 of the 1991 Act;

• “good industry practice” means exercising the degree of skill, diligence, prudence, foresight and care reasonably expected of a skilled and experienced solar developer, which includes obtaining all necessary permits and compliance with any safety rules;

• “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;

• “including” or “include” are to be construed without limitation, and such general words are not to be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words and references to “such as” or “for example” must be construed accordingly;

• “insolvency related event” means, in respect of any person, any step, process, application, filing in court, order, proceeding, notice or appointment is taken or made by or in respect of such person in relation to the Banking Act 2009 special resolution regime or for a moratorium, composition, compromise or arrangement with creditors, administration, liquidation (other than for the purposes of amalgamation or reconstruction), dissolution, receivership (administrative or otherwise), distress (or the taking control of goods procedure set out in the Tribunals, Courts and Enforcement Act 2007) or execution in any jurisdiction or such person becomes insolvent or is unable or is deemed unable to pay its debts, suspends making payments on its debts, as they fall due in accordance with the law of any application jurisdiction;

• “maintain” and “maintenance” include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Uniper including retain, lay, construct, use, maintain, repair, protect, access, alter, inspect, renew, replace, enlarge, decommission or remove the apparatus or alternative apparatus;

• “parent company” means—a parent company of the undertaker acceptable to and which must have been approved by Uniper acting reasonably; orwhere a parent company is subject to an insolvency related event, a replacement parent company approved by Uniper acting reasonably;

• “plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and mitigation measures (including but not limited to integrity reports), earthing philosophies, proposed land and road crossings and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

• “representative” means Uniper’s directors, officers, employees, agents, consultants and advisers;

• “specified works” means any of the authorised development or activities undertaken in association with the authorised development which—will or may be situated over, under, across, along, upon or within 15 metres measured in any direction of any apparatus, excluding any high pressure pipelines to which paragraph ‎(b) below shall apply;will or may be situated over, under, across, along, upon or within 50 metres measured in any direction of any high pressure pipeline; ormay in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph ‎192(2) or otherwise; and

• “Uniper” means Uniper UK Limited incorporated in England with company number 2796628 and whose registered office is at Compton House 2300 The Crescent, Birmingham Business Park, Birmingham, England, B37 7YE and for the purposes of this Part of this Schedule is a “statutory undertaker”.

188

Except for paragraphs ‎189 (apparatus of Uniper in streets subject to temporary prohibition or restriction of use and public rights of way), ‎192 (retained apparatus), ‎193 (removal of apparatus), ‎194 (expenses) and ‎195 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of Uniper, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Uniper are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of Uniper in streets subject to temporary prohibition or restriction of use and public rights of way

189

Regardless of temporary prohibition or restriction of use or diversion of any street or public right of way under the powers of article 11 (temporary prohibition or restriction of use of streets and public rights of way), Uniper will be at liberty at all times to take all necessary access across any such street or public right of way and to execute and do all such works and things in, upon or under any such street or public right of way as it would have been entitled to do immediately before such temporary prohibition or restriction of use or diversion in respect of any apparatus which at the time of the prohibition or restriction of use or diversion was in that street or public right of way.

Protective works to buildings

190

The undertaker, in the case of the powers conferred by article 17 (protective works to buildings), must exercise those powers in accordance with paragraph ‎192 so as not to obstruct or render less convenient the access to any apparatus or alternative apparatus.

Acquisition of land

191

• (1) Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 11 (temporary prohibition or restriction of use of streets and public rights of way), Uniper is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.

• (2) 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.

Retained apparatus

192

• (1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Uniper at the address stated in paragraph 200 a plan in respect of those works.

• (2) The plan to be submitted to Uniper under sub-paragraph ‎(1) must include all comprehensive risk assessments (including any quantitative risk assessments) and any method statement 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 etc;

• (d) the position of all apparatus;

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

• (f) any changes to the land drainage systems, temporary crossing designs, traffic management plans, health and safety management plans, emergency response plans, planned changes or rerouting of any assets and their corresponding design codes, earth schedules and earthing risk assessments;

• (g) any recommendations and/or mitigation measures to avoid interference with, or loss or damage to the apparatus (including damage caused by passing over the apparatus by heavy construction machinery) and related remedies should such mitigation measures fail;

• (h) any intended maintenance regimes; and

• (i) a programme of the works, including any proposed start dates and the anticipated duration of the works.

• (3) The undertaker must not commence any works to which sub-paragraphs ‎(1) and ‎(2) apply until Uniper has given written approval of the plan so submitted and the undertaker and Uniper have used reasonable endeavours to carry out a joint site walk in the period 4 weeks before commencement of the works.

• (4) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by Uniper, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under this Part of this Schedule.

• (5) Any approval of Uniper required under sub-paragraph ‎(3)—

• (a) may be given subject to reasonable conditions for any purpose mentioned in sub- paragraphs ‎(6) or ‎(10); and

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

• (6) In relation to any work to which sub-paragraphs ‎(1) or ‎(2) apply, the undertaker will provide any additional information or documentation as reasonably requested by Uniper and Uniper may require modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (7) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraph ‎(1) and ‎(2) or as relevant sub-paragraph ‎(5) and ‎(6), as approved or as amended from time to time by agreement between the undertaker and Uniper and in accordance with all conditions imposed under sub-paragraph ‎(5)(a) by Uniper for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Uniper (or its representative) will be entitled to attend any meetings related to the specified works and watch, monitor and inspect the execution of those works.

• (8) If, during the carrying out of the authorised development, any aspect of the works pose a risk of interference with or loss or damage to the apparatus, the undertaker will immediately notify Uniper, in writing and submit a revised plan in respect of the affected works to Uniper for approval, and the provisions of this paragraph will apply to, and in respect of, the revised plan.

• (9) If Uniper (or its representative) identifies a potential risk of interference with or loss or damage to the apparatus while watching, monitoring or inspecting the specified works, then Uniper (or its representative) may request suspension of such works, and the undertaker will then submit a revised plan in respect of the affected works to Uniper for approval, and the provisions of this paragraph will apply to, and in respect of, the revised plan, and a failure or delay of Uniper (or its representative) in exercising this right, or the undertaker’s failure to suspend the specified works upon request by Uniper (or its representative), will not relieve the undertaker of its responsibility for any interference with, loss of, or damage to the apparatus.

• (10) Where Uniper requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Uniper’s satisfaction (acting reasonably) prior to the commencement.

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

• (12) The undertaker will not be required to comply with sub-paragraph ‎(1) where it needs to carry out emergency works, provided that—

• (a) in respect of danger to persons it must give to Uniper notice as soon as is reasonably practicable by calling Uniper’s emergency telephone line on 0800 389 4795 or such other telephone number notified by Uniper to the undertaker in writing; and

• (b) in respect of danger to property it shall notify Uniper in accordance with paragraph ‎(a), before any emergency works are commenced by or on behalf of the undertaker,

and, in each case, as soon as is reasonably practicable give to Uniper a plan of those works and must—

• (c) comply with sub-paragraphs ‎(6) to ‎(10) insofar as is reasonably practicable in the circumstances; and

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

• (13) At all times when carrying out any works authorised under the Order the undertaker must comply with, and use reasonable endeavours to procure compliance by any party acting on its behalf with, all applicable law and good industry practice. The undertaker must procure that any party carrying out any works on the land on its behalf has knowledge of the apparatus, its location (including as illustrated by a site map) and procure that the obligations contained in this Part of this Schedule are adhered to by such parties working on the land on its behalf.

• (14) The undertaker must prepare and keep up to date a complete set of red-lined as-built records of the execution of the specified works, showing the exact as-built locations, sizes and details of such works as executed and the undertaker must submit the as-built records to Uniper no later than five working days after the completion of the specified works and Uniper may specify the number of copies of any as-built records acting reasonably.

Removal or replacement of apparatus

193

• (1) The undertaker is not permitted to remove, move or replace any apparatus in land without the prior written consent of Uniper, such consent not to be unreasonably withheld or delayed.

• (2) If, in the exercise of the powers conferred by the Order, the undertaker has exercised its compulsory purchase powers to acquire any interest in or possesses temporarily any Order land in which any apparatus is placed and has the power to move, replace or remove that apparatus, it must not do so under this Part of this Schedule and any right of Uniper 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 Uniper in accordance with sub-paragraphs ‎(3) to ‎(7) inclusive.

• (3) If, for the purpose of executing any specified works in, on, under or over any land held, appropriated or used under this Order pursuant to exercising its compulsory purchase powers the undertaker requires the replacement or removal of any apparatus placed in that land it must give to Uniper no less than 56 days advance written notice of that requirement, together with a plan of the work proposed, and where applicable, the proposed replacement apparatus or the position of any alternative apparatus to be provided or constructed and in that case provided that where—

• (a) the undertaker requires the replacement of any apparatus placed in that land, it must be replaced with identical apparatus, provided that if identical apparatus is not available, it must not be replaced with any apparatus that is less advanced than the apparatus being replaced and must either be—

• (i) replaced with apparatus on a similar or equivalent basis (i.e. like-for-like basis); or

• (ii) where it cannot be replaced on a similar or equivalent basis, then it must be replaced with enhanced apparatus no less advanced than the apparatus being replaced; and

• (b) the undertaker requires the removal of any apparatus placed in that land (or if in consequence of the exercise of any of the powers conferred by this Order Uniper reasonably needs to remove any of its apparatus), Uniper must, subject to sub-paragraph ‎(5), secure any necessary consents for the alternative apparatus and afford to Uniper to its satisfaction the necessary facilities and rights for the construction of alternative apparatus in other land of or land secured by Uniper and subsequently for the maintenance of that apparatus.

• (4) Prior to any removal or any replacement of the apparatus pursuant to this paragraph, the parties must agree the value attributable to such apparatus or alternative apparatus and, prior to any replacement or removal, if such value cannot be agreed between the parties, such value will be determined in accordance with paragraph ‎199 (arbitration).

• (5) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph ‎(3), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the undertaker must take all steps required in the circumstances to assist Uniper to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (6) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the undertaker and Uniper.

• (7) Uniper must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written agreement having been entered into between the parties and the grant to Uniper of any such facilities and rights as are referred to in sub-paragraph ‎(3) or ‎(5), 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.

Expenses

194

• (1) Subject to the following provisions of this paragraph, the undertaker must pay to Uniper within 30 days of receipt of an invoice, all charges, costs and expenses incurred, or reasonably anticipated to be incurred, by Uniper in, or in connection with, the inspection, removal, relaying or replacing, alteration, repair, remediation or restoration of or protection of any apparatus or alternative apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any powers conferred on the undertaker, pursuant to the Order (including in the execution of any authorised development as is referred to in this Part of this Schedule) including without limitation—

• (a) in connection with the cost of the carrying out of any assessment of Uniper’s apparatus under P.S.R 1996 and G.S.M.R reasonably necessary as a consequence of the authorised development;

• (b) implementing any mitigation measures required as a result of any assessment referred to in sub-paragraph ‎(a) reasonably necessary as a consequence of the authorised development;

• (c) the approval of plans;

• (d) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works; and

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

• (2) For the purposes of calculating the sums payable pursuant to sub-paragraph ‎(1) above, in the case of the replacement or removal of apparatus, the following applies—

• (a) where apparatus is removed under the provisions of this Part of this Schedule and which will not re-used as part of the apparatus or alternative apparatus, there will be excluded from any sum payable under sub-paragraph ‎(1) the value of the apparatus being removed; and

• (b) subject to paragraph ‎193(3)(a), when replacing existing apparatus, there will be deducted from any sum payable under sub-paragraph ‎(1) the value of that apparatus being removed under the provisions of this Part of this Schedule and which is not re-used as part of the apparatus or alternative apparatus, except that the value of any apparatus or alternative apparatus used to replace the apparatus being removed will be included in the sum payable under sub-paragraph ‎(1), such value being agreed between the parties (or as determined in accordance with paragraph ‎199 (arbitration)) prior to any removal or replacement of the apparatus,

provided that, in each case, all charges, costs and expenses reasonably incurred, or reasonably anticipated to be incurred, by Uniper in, or in connection with the works required for the removal or replacement of such apparatus will be included in the sum payable under sub-paragraph ‎(1).

• (3) If, in accordance with sub-paragraph ‎(2), any existing apparatus is replaced with enhanced apparatus where the undertaker’s consent has not been obtained by Uniper (or where disputed in accordance with paragraph ‎199 (arbitration), decided not to be necessary), then, if the construction expenses for this replacement surpass the construction expenses that would have been paid for similar or equivalent apparatus then any excess costs will be borne by Uniper, except that where it is not possible in the circumstances to obtain similar or equivalent apparatus, full costs will be payable by the undertaker.

• (4) Any amount which apart from this sub-paragraph would be payable to Uniper 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 Uniper any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Indemnity

195

• (1) Subject to sub-paragraphs ‎(2) and ‎(3), if by reason or in consequence of the construction of the authorised development or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by them) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any loss or damage is caused to any apparatus, alternative apparatus or property of Uniper, or there is any interruption in any services provided, or in the supply of any goods, or in the use of the apparatus or alternative apparatus (as applicable) by Uniper, the undertaker must—

• (a) bear and pay the costs reasonably and properly incurred by Uniper in making good such loss or damage or in restoring the supply or its use;

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

• (c) indemnify Uniper for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from Uniper, by reason or in consequence of any such damage or interruption or Uniper becoming liable to any third party (an “indemnity claim”).

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

• (a) any damage or interruption to the extent that it is attributable to the act, neglect or default of Uniper or its representatives; or

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

• (3) Uniper must give the undertaker reasonable notice of an indemnity claim and no settlement or compromise is to be made that is prejudicial to the undertaker without the consent of the undertaker (not to be unreasonably withheld) which, if it withholds such consent, it will assume the sole conduct of the indemnity claim, provided that if the undertaker does not assume the sole conduct of the indemnity claim within 30 days of the indemnified claim being notified to it, Uniper, or a person designated by Uniper, may conduct the indemnity claim in such manner as it may deem appropriate and the undertaker will indemnify Uniper for any costs and expenses incurred in connection with defending any such indemnity claim.

• (4) The undertaker will give assistance to Uniper, as requested, in connection with an indemnity claim (including circumstances where Uniper reasonably believes may give rise to an action, claim or demand by a third party).

• (5) The undertaker undertakes not to commence construction (and not to permit the commencement of such construction) of the authorised development on any land owned by Uniper or in respect of which Uniper has an easement, wayleave or lease for its apparatus or any other interest or to carry out any works within 15 metres of Uniper’s apparatus (except in respect of any high pressure pipelines) or within 50 metres of Uniper’s high pressure pipelines until the following conditions are satisfied—

• (a) unless and until Uniper is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has first provided the acceptable security (and provided evidence that it will maintain such acceptable security for the construction period of the authorised development from the proposed date of commencement of construction the authorised development) and Uniper has confirmed the same to the undertaker in writing; and

• (b) unless and until Uniper is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to Uniper that it will maintain such acceptable insurance for the construction period of the authorised development from the proposed date of commencement of construction of the authorised development) and Uniper has confirmed the same in writing to the undertaker.

• (6) The undertaker agrees that if, at any time, the acceptable security or acceptable insurance expires or terminates, ceases to fulfil the criteria of acceptable security or acceptable insurance, ceases to be in full force and effect or becomes invalid or unenforceable for the purpose of this Part of this Schedule or an insolvency-related event occurs in respect of the undertaker, then the relevant security or insurance will no longer constitute acceptable security or acceptable insurance and will promptly be replaced by the undertaker with alternative acceptable security or acceptable insurance as approved by the undertaker.

• (7) In the event that the undertaker fails to comply with sub-paragraph ‎(4) nothing in this Part of this Schedule will prevent Uniper from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.

• (8) Uniper must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within Uniper’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of Uniper’s control and if reasonably requested to do so by the undertaker Uniper must provide an explanation of how the claim has been minimised, where relevant.

Co-operation

196

• (1) Where, in consequence of the proposed construction of any of the authorised development, Uniper makes requirements for the protection or alteration of apparatus under paragraphs ‎192(6) or ‎192(8), the undertaker must use its best 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, efficient and economic operation of Uniper’s apparatus and Uniper must use its best endeavours to co-operate with the undertaker for that purpose.

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

Confidentiality

197

• (1) Each party must treat any confidential information as private and confidential. The party in receipt of any confidential information from the other party may not use it for a purpose other than for the performance of its obligations under this Part of this Schedule and must not disclose confidential information received from the other party to any person, provided that a party may disclose confidential information to any of its directors, other officers, employees, contractors, customers, affiliates, insurers, funders, advisers or consultants to the extent that disclosure is reasonably necessary for the purposes of this Part of this Schedule.

• (2) Sub-paragraph ‎(1) does not apply to confidential information—

• (a) which is at the date of commencement, or at any time after that date becomes, publicly known other than by breach of sub-paragraph ‎(1);

• (b) which was known by the receiving party before disclosure by the other party to the receiving party, provided that such confidential information was lawfully obtained; or

• (c) to the extent disclosure of the confidential information is required by laws, the instructions of a competent governmental authority or such competent authority acting on behalf of such governmental authority, or the rules of a relevant and recognised stock exchange.

Access

198

If in consequence of the agreement reached in accordance with paragraph ‎191(1) of this Part of this Schedule or otherwise as granted by this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by Uniper (or representative) in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable Uniper (or its representative) to maintain or use the apparatus no less effectively than was possible before such obstruction. For the avoidance of doubt, Uniper (or its representative) will be entitled to access its apparatus in the land at all times.

Arbitration

199

Any difference or dispute arising between the undertaker and Uniper under this Part of this Schedule must be determined by arbitration in accordance with article ‎42 (arbitration).

Notices

200

Any notice, statement, request, plan or any other written communication (including the plan to be provided at paragraph ‎192) to be given or made in respect of this Part of this Schedule by the undertaker must be given or made in writing FAO Lead Pipeline Engineer, Uniper Pipelines Team, Pipelines Office, Uniper Killingholme Power Station, Chase Hill Road, Killingholme, North Lincolnshire, DN40 3LU or such other address as Uniper may have notified to the undertaker from time to time.

PART 15 — FOR THE PROTECTION OF EXOLUM PIPELINE SYSTEM LIMITED

Application

201

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

• (2) In this Part of this Schedule, the following terms have the following meanings—

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

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

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

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

• “Exolum” means Exolum Pipeline System Ltd (company registration number 09497223 whose registered office is 1st Floor 55 King William Street, London, England, EC4R 9AD) and for the purpose of enforcing the benefit of any provisions in this Part of this Schedule, any group company of Exolum Pipeline System Ltd and in all cases any successor in title;

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

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

• “plan” includes all designs, drawings, sections, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary to allow Exolum to assess the restrictive works to be executed properly and sufficiently and in particular must describe—the position of the works as proposed to be constructed or renewed;the level at which the works are proposed to be constructed or renewed;the manner of the works’ construction or renewal including details of excavation, positioning of plant etc.;the position of the affected apparatus and/or premises and any other apparatus belonging to another undertaker that may also be affected by the restrictive works;by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus;any intended maintenance regime;details of the proposed method of working and timing of execution of works; anddetails of vehicle access routes for construction and operational traffic;

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

• “protective works” means works for the inspection and protection of apparatus; and

• “restrictive works” means any works that are near to, or will or may affect any apparatus or premises including—all works within 15 metres measured in any direction of any apparatus including embankment works and those that involve a physical connection or attachment to any apparatus;the crossing of apparatus by other utilities;the use of explosives within 400 metres of any apparatus;piling, undertaking of a 3D seismic survey or the sinking boreholes within 30 metres of any apparatus; andall works that impose a load directly upon the apparatus, wherever situated,whether carried out by the undertaker or any third party in connection with the authorised development.

Acquisition of apparatus

202

• (1) Regardless of any other provision in the Order or anything shown on the land plan—

• (a) the undertaker must not, otherwise than by agreement with Exolum, acquire any apparatus, Exolum’s rights in respect of apparatus or any of Exolum’s interests in the Order land;

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

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

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

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

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

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

• (d) any right of Exolum to maintain, repair, renew, adjust, alter or inspect apparatus must not be extinguished by the undertaker until any necessary alternative apparatus has been constructed and it is in operation and the alternative rights have been granted, all to the reasonable satisfaction of Exolum; and

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

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

• (3) Where the undertaker acquires land which is subject to any existing rights and the provisions of paragraph ‎203(4) do not apply, the undertaker must—

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

• (b) (where no such notice of the existing rights or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with an application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of the existing rights or other interest in relation to such acquired land; and

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

• (4) Where the undertaker takes temporary possession of any land or carries out survey works on land in respect of which Exolum has apparatus—

• (a) where reasonably necessary, Exolum may exercise its rights to access such land;

• (i) in an emergency, without notice; and

• (ii) in non-emergency circumstances, having first given not less than 14 days’ written notice to the undertaker in order to allow the parties to agree the timing of their respective works during the period of temporary possession; and

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

Removal of apparatus and rights for alternative apparatus

203

• (1) If, having used all reasonable endeavours to implement the authorised development without the removal of any apparatus—

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

• (b) Exolum reasonably requires the removal of any apparatus,

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

• (2) The parties must use their reasonable endeavours to produce a plan of the work proposed and a plan of the proposed position of the alternative apparatus to be provided or constructed.

• (3) The undertaker must afford to Exolum the necessary facilities and rights for the construction of alternative apparatus and subsequently the grant of alternative rights in accordance with paragraph ‎204.

• (4) Any alternative apparatus is to be constructed in land owned by the undertaker or in land in respect of which alternative rights have been or are guaranteed to be granted to Exolum. The alternative apparatus must be constructed in such manner and in such line or situation as may be agreed between Exolum and the undertaker or in default of agreement settled by arbitration in accordance with article ‎42 (arbitration).