The Stonestreet Green Solar Order 2025

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

• (b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party and including STC claims or an incentive deduction other than arising from any default of National Grid.

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

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

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

• (b) any authorised works and/or any other works authorised by this Part of this Schedule carried out by National Grid pursuant to article 6 (benefit of the Order) or as a transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or article 7 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus, any authorised works yet to be executed and not falling within this sub-paragraph will be subject to the full terms of this Part of this Schedule including this paragraph; or

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

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

• (5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

• (6) National Grid 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 National Grid’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 National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.

• (7) Before carrying out any specified works the undertaker must put in place a policy of acceptable insurance with a reputable insurer the coverage and level of cover to be first agreed in writing between the undertaker and National Grid, and evidence of such insurance to be provided on request and thereafter maintained for the duration of the carrying out of any specified works.

• (8) Before carrying out any specified works the undertaker must put in place acceptable security, and evidence of such acceptable security is to be provided on request and thereafter maintained for the duration of the carrying out of any specified works.

• (9) Any dispute between the undertaker and National Grid regarding the terms, cover or insured level of the insurance policy or regarding the form and level of acceptable security shall be resolved in accordance with paragraph 59 (arbitration).

Enactments and agreements

56

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

Cooperation

57

• (1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph 51(2) (removal of apparatus) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 53 (retained apparatus: protection), the undertaker will 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 works and taking into account the need to ensure the safe and efficient operation of National Grid’s undertaking and National Grid will use its best endeavours to co-operate with the undertaker for that purpose.

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

Access

58

If in consequence of the agreement reached in accordance with paragraph 50(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

59

Save for any differences or disputes arising under paragraph 51(2), 51(4), 53(1) and 54, any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 44 (arbitration).

Notices

60

Notwithstanding article 42 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 53 (retained apparatus: protection) must be submitted using the LSBUD system (https://lsbud.co.uk/) or to such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 6 — FOR THE PROTECTION OF NATIONAL GRID INTERCONNECTORS LIMITED AS ELECTRICITY UNDERTAKER

Application

61

• (1) For the protection of National Grid Interconnectors as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid Interconnectors.

• (2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Grid Interconnectors, where the benefit of this Order is transferred or granted to another person under article 7 (consent to transfer benefit of the Order) written notice of the transfer or grant must be given to National Grid Interconnectors on or before the date of that transfer or grant.

• (3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Grid Interconnectors (but without prejudice to paragraph 68(3)(b) (indemnity)).

Interpretation

62

In this Part of this Schedule—

• “apparatus” means any electric lines, cables or electrical plant as defined in the Electricity Act 1989 and including convertor stations and sub-stations, belonging to or maintained by National Grid Interconnectors together with any apparatus constructed pursuant to the Order that becomes operational apparatus of National Grid Interconnectors for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

• “authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) of this Order and includes any associated development authorised by the 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” and “commencement” in this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

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

• “functions” includes powers and duties;

• “ground mitigation scheme” means a scheme approved by National Grid Interconnectors setting out the necessary measures (if any) for a ground subsidence event;

• “ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, must require the undertaker to submit for National Grid Interconnectors’ approval a ground mitigation scheme;

• “ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

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

• “Incentive Deduction” means any incentive deduction National Grid Interconnectors receives under its electricity transmission licence which is caused by an event on its transmission system that causes electricity not to be supplied to a demand customer and which arises as a result of the authorised works;

• “maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus of National Grid Interconnectors: construct, use, repair or inspect the apparatus;

• “National Grid Interconnectors” means National Grid Interconnectors Limited, company number 03385525, whose registered office is at 1-3 Strand, London, WC2N 5EH;

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

• “specified works” means any of the authorised works or activities undertaken in association with the authorised works which—will or may be situated over or within 15 metres measured in any direction of any apparatus; and/ormay in any way adversely affect any apparatus.

• “STC” means the System Operator Transmission Owner Code prepared by the electricity Transmission Owners and NESO as modified from time to time; and

• “STC Claims” means any claim made under the STC against National Grid Interconnectors arising out of or in connection with the de-energisation (whereby no electricity can flow to or from the relevant system through the generator or interconnector’s equipment) of a generator or interconnector party solely as a result of the de-energisation of plant and apparatus forming part of National Grid Interconnectors’ transmission system which arises as a result of the authorised works.

On street apparatus

63

Except for paragraphs 64 (apparatus of National Grid Interconnectors Limited in closed streets), 66 (apparatus: protection), 67 (expenses) and 68 (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 National Grid Interconnectors, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid Interconnectors are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of National Grid Interconnectors Limited in closed streets

64

• (1) Where any street is closed under article 10 (street works and temporary closure of streets and private means of access), if National Grid Interconnectors has any apparatus in the street or accessed via that street National Grid Interconnectors has the same rights in respect of that apparatus as it enjoyed immediately before the closure and the undertaker must grant to National Grid Interconnectors, or procure the granting to National Grid Interconnectors of, legal easements reasonably satisfactory to National Grid Interconnectors in respect of such apparatus and access to it prior to the closure of any such street but nothing in this paragraph affects any rights of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 66 (apparatus: protection).

• (2) Notwithstanding the temporary closure or diversion of any street under the powers of article 10 (street works and temporary closure of streets and private means of access), National Grid Interconnectors is at liberty at all times to take all necessary access across any such closed 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 closure or diversion was in that street.

Acquisition of land

65

• (1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not—

• (a) appropriate or acquire or take temporary possession of any land or apparatus of National Grid Interconnectors; or

• (b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right or apparatus of National Grid Interconnectors,

otherwise than by agreement between the undertaker and National Grid Interconnectors (such agreement not to be unreasonably withheld).

• (2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Grid Interconnectors and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid Interconnectors or affect the provisions of any enactment or agreement regulating the relations between National Grid Interconnectors and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid Interconnectors requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Grid Interconnectors and the undertaker (each acting reasonably) and which must be no less favourable on the whole to National Grid Interconnectors, unless otherwise agreed by National Grid Interconnectors, and it will be the responsibility of the undertaker to use best endeavours to procure or secure (or both) the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised works.

• (3) Any agreement or consent granted by National Grid Interconnectors under paragraph 66 (apparatus: protection) or any other paragraph of this Part of this Schedule must not be taken to constitute agreement under sub-paragraph (1).

Apparatus: protection

66

• (1) Not less than 28 days before the commencement of any specified works the undertaker must submit to National Grid Interconnectors a plan of the works to be executed and seek from National Grid Interconnectors details of the underground extent of their electricity assets.

• (2) In relation to specified works the plan to be submitted to National Grid Interconnectors under sub-paragraph (1) must include a method statement and describe—

• (a) the exact position of the works;

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

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

• (d) the position of all apparatus;

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

• (f) any intended maintenance regimes;

• (g) an assessment of risks of rise of earth issues; and

• (h) a ground monitoring scheme, where required.

• (3) The undertaker must not commence any works to which sub-paragraph (2) applies until National Grid Interconnectors has given written approval of the plan so submitted.

• (4) Any approval of National Grid Interconnectors required under sub-paragraph (3)—

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

• (b) must not be unreasonably withheld; and

• (c) will be deemed approved if no response is provided by National Grid Interconnectors within 28 days of a request for approval being submitted by the undertaker.

• (5) In relation to any work to which sub-paragraph (2) applies National Grid Interconnectors may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (6) Works executed under sub-paragraph (2) must be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (5), as approved or as amended from time to time by agreement between the undertaker and National Grid Interconnectors and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by National Grid Interconnectors for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid Interconnectors will be entitled to watch and inspect the execution of those works.

• (7) Where National Grid Interconnectors 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 National Grid Interconnectors’ satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required and National Grid Interconnectors will give notice of its requirement for such works within 14 days of the date of submission of a plan pursuant to sub-paragraph (1) (except in an emergency).

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

• (9) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid Interconnectors notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances.

Expenses

67

Save where otherwise agreed in writing between National Grid Interconnectors and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to National Grid Interconnectors within 30 days of receipt of an itemised VAT invoice or claim from National Grid Interconnectors all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid Interconnectors in, or in connection with, the inspection or protection of any apparatus which may be required in consequence of the execution of any authorised works including without limitation—

• (a) any costs reasonably incurred by or compensation properly paid by National Grid Interconnectors in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid Interconnectors as a consequence of National Grid Interconnectors exercising any compulsory acquisition powers in the Order transferred to or benefitting National Grid Interconnectors;

• (b) the approval of plans under this part of this Schedule;

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

• (d) 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.

Indemnity

68

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

• (a) bear and pay on demand accompanied by an invoice or claim from National Grid Interconnectors the cost reasonably and properly incurred by National Grid Interconnectors in making good such damage or restoring the supply; and

• (b) indemnify National Grid Interconnectors for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid Interconnectors, by reason or in consequence of any such damage or interruption or National Grid Interconnectors becoming liable to any third party and including STC Claims or Incentive Deduction other than arising from any default of National Grid Interconnectors.

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

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

• (a) any damage or interruption to the extent that it is attributable to the neglect or default of National Grid Interconnectors, its officers, servants, contractors or agents;

• (b) any authorised works or any other works authorised by this Part of this Schedule carried out by National Grid Interconnectors pursuant to article 6 (benefit of the Order) or as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or 7 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus, any authorised works yet to be executed and not falling within this sub-paragraph 68(3)(b) will be subject to the full terms of this Part of this Schedule including this paragraph; or

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

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

• (5) National Grid Interconnectors must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

• (6) National Grid Interconnectors 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 National Grid Interconnectors reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid Interconnectors’ control and if reasonably requested to do so by the undertaker, National Grid Interconnectors must provide an explanation of how the claim has been minimised, where relevant.

Enactments and agreements

69

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

Co-operation

70

• (1) Where in consequence of the proposed construction of any part of the authorised works National Grid Interconnectors makes requirements for the protection of apparatus under paragraph 66 (apparatus: protection), 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 works and taking into account the need to ensure the safe and efficient operation of National Grid Interconnectors’ undertaking and National Grid Interconnectors must use its best endeavours to co-operate with the undertaker for that purpose.

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

Access

71

If in consequence of the agreement reached in accordance with paragraph 65(1) (acquisition of land) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid Interconnectors to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

72

Any difference or dispute arising between the undertaker and National Grid Interconnectors under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid Interconnectors, be determined by arbitration in accordance with article 44 (arbitration).

Notices

73

Notwithstanding article 42 (service of notices), any plans submitted to National Grid Interconnectors by the undertaker pursuant to paragraph 66 (apparatus: protection) must be submitted using the LSBUD system (https://lsbud.co.uk/) or to such other address as National Grid Interconnectors may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 7 — FOR THE PROTECTION OF NETWORK RAIL

74

The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 88 of this Part of this Schedule any other person on whom rights or obligations are conferred by that paragraph.

75

In this Part of this Schedule—

• “asset protection agreement” means an agreement to regulate the construction and maintenance of the specified work in a form prescribed from time to time by Network Rail;

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

• “the engineer” means an engineer appointed by Network Rail for the purposes of this Order;

• “network licence” means the network licence, as the same is amended from time to time, granted to Network Rail by the Secretary of State in exercise of their powers under section 8 (licences) of the Railways Act 1993[^f00066];

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

• “railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

• “railway property” means any railway belonging to Network Rail and— any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and any easement or other property interest held or used by Network Rail or a tenant or licensee of Network Rail for the purposes of such railway or works, apparatus or equipment;

• “regulatory consents” means any consent or approval required under— the Railways Act 1993; the network licence; or any other relevant statutory or regulatory provisions,

by either the Office of Rail and Road or the Secretary of State for Transport or any other competent body including change procedures and any other consents, approvals of any access or beneficiary that may be required in relation to the authorised development;

• “specified work” means so much of any of the authorised development as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property and, for the avoidance of doubt, includes the maintenance of such works under the powers conferred by article 4 (maintenance of authorised development) in respect of such works; and

• “undertaker” has the same meaning as in article 2 (interpretation) of this Order.

76

• (1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

• (2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

• (a) co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

• (b) use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development pursuant to this Order.

77

• (1) The undertaker must not exercise the powers conferred by—

• (a) article 3 (development consent granted by the Order);

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

• (c) article 14 (access to works)

• (d) article 19 (discharge of water);

• (e) article 20 (authority to survey and investigate the land);

• (f) article 21 (compulsory acquisition of land);

• (g) article 23 (statutory authority to override easements and other rights)

• (h) article 25 (compulsory acquisition of rights and imposition of restrictive covenants);

• (i) article 26 (private rights);

• (j) article 28 (acquisition of subsoil and airspace only);

• (k) article 34 (acquisition of wayleaves, easements and other rights);

• (l) article 30 (temporary use of land for carrying out the authorised development);

• (m) article 32 (temporary use of land for maintaining the authorised development);

• (n) article 33 (statutory undertakers);

• (o) article 43 (felling or lopping of trees or shrubs);

• (p) the powers conferred by section 11(3) (powers of entry) of the 1965 Act;

• (q) the powers conferred by section 203 (power to override easements and rights) of the Housing and Planning Act 2016;

• (r) the powers conferred by section 172 (right to enter and survey land) of the Housing and Planning Act 2016; and

• (s) any powers under in respect of the temporary possession of land under the Neighbourhood Planning Act 2017;

in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.

• (2) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.

• (3) The undertaker must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, article 33 (statutory undertakers), article 34 (acquisition of wayleaves, easements and other rights) or article 26 (private rights) in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

• (4) The undertaker must not under the powers of this Order acquire or use or acquire new rights over, or seek to impose any restrictive covenants over, any railway property, or extinguish any existing rights of Network Rail in respect of any third party property, except with the consent of Network Rail.

• (5) The undertaker must not under the powers of this Order do anything which would result in railway property being incapable of being used or maintained or which would affect the safe running of trains on the railway.

• (6) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions but it shall never be unreasonable to withhold consent for reasons of operational or railway safety (such matters to be in Network Rail’s absolute discretion).

• (7) The undertaker must enter into an asset protection agreement prior to the carrying out of any specified work.

78

• (1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as 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, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated their disapproval of those plans and the grounds of such disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer shall be deemed to have approved the plans as submitted.

• (3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

• (4) When signifying their approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to their reasonable satisfaction.

79

• (1) Any specified work and any protective works to be constructed by virtue of paragraph 78(3) must, when commenced, be constructed—

• (a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 76;

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

• (c) in such manner as to cause as little damage as is possible to railway property; and

• (d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.

• (2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

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

80

The undertaker must—

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

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

81

Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.

82

• (1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction or completion of a specified work (during a period of 24 months after the completion of that work) in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

• (2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 78, pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

• (3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 83(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

• (4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

83

The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

• (a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 78 or in constructing any protective works under the provisions of paragraph 78(3) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

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

• (c) in respect of the employment or procurement of the services of any inspectors, signallers, watch-persons and other persons whom it shall be reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

• (d) in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

• (e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

84

• (1) In this paragraph—

• “EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

• “Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

• (2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 78(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

• (3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

• (4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

• (a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 78(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

• (b) Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to paragraph (a); and

• (c) Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to paragraph (a).

• (5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 78(1) has effect subject to the sub-paragraph.

• (6) Prior to the commencement of operation of the authorised development the undertaker shall test the use of the authorised development in a manner that shall first have been agreed with Network Rail and if, notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

• (7) In the event of EMI having occurred—

• (a) the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;

• (b) Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI;

• (c) Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI; and

• (d) the undertaker shall not allow the use or operation of the authorised development in a manner that has caused or will cause EMI until measures have been taken in accordance with this paragraph to prevent EMI occurring.

• (8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—

• (a) Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and

• (b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 79.

• (9) To the extent that it would not otherwise do so, the indemnity in paragraph 88(2) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

• (10) For the purpose of paragraph 83(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

• (11) In relation to any dispute arising under this paragraph the reference in article 44 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Engineering and Technology.

85

If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

86

The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

87

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.

88

• (1) 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 (2); 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.

• (2) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (subject to article 36 (no double recovery)) 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;

• (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; and

• (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 shall 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.

• (3) 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.

• (4) The sums payable by the undertaker under sub-paragraph (2) shall if relevant include a sum equivalent to the relevant costs.

• (5) 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 (4) which relates to the relevant costs of that train operator.

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

89

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 88) 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).

90

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.

91

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 plans and land plans and described in the book of reference;

• (b) any land, 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.

92

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.

93

The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 7 (consent to transfer 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.

94

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 41 (certification of plans etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail.

95

In relation to any dispute arising under this part of this Part of this Schedule (except for those disputes referred to in paragraph 84(11)), the provisions of article 44 (arbitration) shall 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 8 — FOR THE PROTECTION OF LONDON ST PANCRAS HIGHSPEED

96

The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the Company.

97

In this Part of this Schedule—

• “CDM Regulations” means the Construction (Design and Management) Regulations 2015[^f00067];

• “Company” means HS1 Limited, trading as London St. Pancras Highspeed (company number 03539665, whose registered office is at 5th Floor, Kings Place, 90 York Way, London N1 9AG) and any HS1 Group Company which holds property for railway purposes;

• “concession agreement” means the agreement between the Secretary of State for Transport and the Company for the design, construction, financing, operation, repair and maintenance of High Speed 1 as amended or supplemented from time to time;

• “construction” includes execution, placing, alteration, testing and commissioning (and, where relevant, the removal, alteration, re-carrying out after testing/commissioning or re-testing/commissioning) and reconstruction and construct and constructed have corresponding meanings;

• “contamination” means the presence of any substance at, in, on or under any given property, that is capable of causing harm to the environment;

• “emergency” means fouling of the line, any plant and/or equipment failing and/or falling within the fence, anything touching the overheads, any breach of the security fence, or any activity which adversely affects the stability or safety of any earthwork or structure (including track, overheads and/or stanchions);

• “the engineer” means an engineer appointed by the Company for the purposes of this Order;

• “environment” means any one or more of— air (including air within natural or manmade structures, above or below ground); water (including water under or within land, or in drains or sewers, and surface, ground, coastal and inland waters); land (including surface land, sub-surface strata, land under water and natural and man-made structures); and living organisms (including humans) including the ecological systems of which they form part, and, in the case of man, his senses and his property;

• “High Speed 1” means the high speed rail link between St Pancras in the London Borough of Camden and the Channel Tunnel Portal at Castle Hill, Folkestone, Kent and the international stations at St Pancras, Stratford and Ebbsfleet and Ashford and all associated track, facilities and installations, including the Waterloo Connection and the maintenance depots at Temple Mills and Singlewell;

• “HS1 group company” means any subsidiary or holding company of the Company or of another subsidiary or holding company of the Company, as “subsidiary” and “holding company” are understood within section 1159, Companies Act 2006, but on the basis that the holding of not less than one quarter of voting rights shall be deemed to satisfy the condition in section 1159(1)(a);

• “HS1 property” means any land (whether freehold or leasehold), easement, property interest, railway, infrastructure, structure (or any part of any of the foregoing) including works, apparatus or equipment, leased, owned, held or used by the Company for the purposes of High Speed 1 that may be affected by the authorised development;

• “network licence” means the network licence, as is amended from time to time, granted to the Company by the Secretary of State in exercise of powers pursuant to the Railways Act 1993[^f00068];

• “plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of HS1 property;

• “protective works” means any works specified by the engineer under paragraph 100;

• “railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease; and

• “specified work” means so much of any of the authorised development as is, or is to be, situated upon, across, under, over or within 15 metres of, or may (or whose maintenance may) in any way adversely affect, HS1 property.

98

• (1) Where under this Part of this Schedule the Company is required to give its consent, agreement or approval in respect of any matter, that consent, agreement or approval is subject to the condition that the Company must comply with any relevant railway operational procedures, any obligations under statute and the concession agreement.

• (2) In so far as any specified work or the acquisition or use of HS1 property or rights over HS1 property is or may be subject to railway operational procedures, the Company must—

• (a) co-operate with the undertaker and use its reasonable endeavours to avoid delay and secure conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

• (b) use its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised development under this Order.

99

• (1) The undertaker shall not exercise the powers conferred by articles 20 (authority to survey and investigate the land), 21 (compulsory acquisition of land), 23 (statutory authority to override easements and other rights), 25 (compulsory acquisition of rights and imposition of restrictive covenants), 26 (private rights), 28 (acquisition of subsoil and airspace only), 30 (temporary use of land for carrying out the authorised development), 32 (temporary use of land for maintaining the authorised development), 33 (statutory undertakers), and 38 (use of subsoil and airspace within the Order limits) of the Order or the powers conferred by section 11(3) of the Compulsory Purchase Act 1965 in respect of any HS1 property unless the exercise of such powers is with the consent of the Company.

• (2) The undertaker shall not in the exercise of the powers conferred by the Order prevent pedestrian or vehicular access to any HS1 property, unless preventing such access is with the consent of the Company.

• (3) The undertaker shall not under the powers of the Order acquire or use or acquire new rights over any HS1 property except with the consent of the Company.

100

• (1) Where the Company is asked to give its consent pursuant to this paragraph, such consent shall not be unreasonably withheld but may be given subject to reasonable conditions.

• (2) The undertaker must, before commencing construction of any specified work, supply to the Company proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration under article 44 (arbitration).

• (3) The approval of the engineer under sub-paragraph (2) must not be unreasonably withheld, and if by the end of the period of 30 business days beginning with the date on which such plans have been supplied to the Company the engineer has not intimated disapproval of those plans and the grounds of disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 10 business days beginning with the date upon which the engineer receives written notice from the undertaker and if, by the expiry of the further 10 business days period specified in the written notice the engineer has not intimated approval or disapproval, the engineer is deemed to have refused the plans as submitted and the undertaker shall be entitled to refer the dispute for arbitration in accordance with the provisions of article 44 (arbitration) of this Order. Where the engineer notifies the undertaker that it withholds its approval under sub-paragraph (2) and gives its reasons, the undertaker shall resubmit such plans amended to address the engineer’s reasons as soon as practicable and the provisions of this paragraph 100 shall apply to the revised plans.

• (4) The undertaker shall ensure compliance with any conditions imposed by the engineer if and when approving any given plans.

• (5) If the Company gives notice to the undertaker that it desires itself to construct any part of a specified work or protective work (including in either case some or all of the requisite design) which in the reasonable opinion of the engineer will or may affect the stability of HS1 property or the safe operation of traffic on High Speed 1 then, if the undertaker desires such part of the specified work to be constructed and subject to sub-paragraph (4), the Company must construct it (together with any adjoining part of the specified work which the undertaker reasonably requires to be constructed with that work with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

• (6) When signifying approval of the plans under sub-paragraph (2) the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s reasonable opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of HS1 property or the continuation of safe and efficient operation of High Speed 1 or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by the Company, or by the undertaker, if the Company so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.

• (7) Without prejudice to the provisions of sub-paragraph (6), in a case of emergency the Company may elect to carry out itself any protective works or any alteration or addition (or other work) as may be specified under paragraph 104, in which case such work shall be carried out by the Company with all reasonable dispatch.

• (8) Subject to sub-paragraph (9), if, in any case, the carrying out of the specified works requires the diversion or other alteration of any road or the alteration, removal, replacement or protection of any apparatus belonging to third parties (including mains, sewers, pipes, drains and cables), the undertaker shall be responsible for—

• (a) obtaining all requisite consents and approvals for such works;

• (b) ensuring such works do not significantly impact on any access or any use of any utilities by the Company; and

• (c) meeting any and all costs, fees, charges and expenses associated with such works, including any compensation or other amounts payable to third parties.

• (9) Where the Company is carrying out any specified works pursuant to sub-paragraph (5) and the carrying out of the specified works requires the diversion or other alteration of any road or the alteration, removal, replacement or protection of any apparatus belonging to third parties (including mains, sewers, pipes, drains and cables), the Company shall be responsible for—

• (a) obtaining all requisite consents and approvals for such works; and

• (b) ensuring such works do not significantly impact on any access or any use of any utilities by the undertaker.

101

• (1) Any specified work and any protective works to be constructed by virtue of paragraph 100(5) must, when commenced, be constructed—

• (a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 100;

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

• (c) in such manner as to cause as little damage as is reasonably possible to HS1 property; and

• (d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of the Company or the traffic on it and the use by passengers of HS1 property.

• (2) The undertaker shall forthwith halt the carrying out of any specified work or protective work or do anything reasonably required by the engineer (including the carrying out of emergency works) to ensure the safety, security, stability, operation or maintenance of High Speed 1. The engineer shall notify the undertaker of the action required to be taken by the undertaker in order to rectify the situation. The undertaker shall be entitled to recommence performance of the specified work or protective work provided that they are in accordance with such action as the engineer requires the undertaker to take.

• (3) If any damage to HS1 property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of, a specified work by the undertaker or any person for whom the undertaker is responsible or a protective work carried out by the undertaker or any person for whom the undertaker is responsible, the undertaker must, regardless of any such approval, make good such damage and must pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may sustain by reason of any such damage, interference or obstruction.

• (4) If the carrying out of the specified works or the protective works or any act, omission, neglect or default on the part of the undertaker or any person for whom the undertaker is responsible, results in any contamination which has the potential to adversely affect HS1 property, or disturbs or causes to be disturbed any existing contamination which has the potential to adversely affect HS1 property in addition to any other rights—

• (a) the Company may give the undertaker a notice specifying the remedial action it reasonably requires and a reasonable period for the undertaker to do it; and

• (b) the undertaker shall undertake the remedial action within the stated period at its own costs and to the Company’s reasonable satisfaction.

• (5) If the undertaker does not complete the remedial action within the stated period, the Company may do so and the undertaker shall pay the costs which the Company incurs in doing so plus 7% on account of overheads (on demand and as a debt) provided that any such delay could have been avoided by the undertaker acting reasonably.

• (6) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of the Company or its servants, contractors or agents, or any liability on the Company with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or the undertaker’s employees, contractors or agents.

102

The undertaker must—

• (a) at all times afford reasonable facilities to the engineer for access to a specified work or protective 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 protective work or the method of constructing it.

103

The Company must at all times afford reasonable facilities to the undertaker and the undertaker’s agents for access to any works carried out by the Company under this Part of this Schedule during their construction and must supply the undertaker with such information as the undertaker may reasonably require with regard to such works or the method of constructing them.

104

• (1) If any permanent or temporary alterations or additions to HS1 property are reasonably necessary in consequence of the construction of a specified work or a protective work, or during a period of 12 months after the completion of that work in order to ensure the safety of HS1 property or the continued safe operation of the railway of the Company, such alterations and additions may be carried out by the Company and if the Company gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (and the notice must specify details of alterations and additions including the costs of carrying out, and in the case of any permanent alterations or additions, maintaining, working and, when necessary, renewing such alterations or additions), the undertaker must pay to the Company the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be properly and reasonably incurred by the Company in maintaining, working and, when necessary, renewing any such alterations or additions provided the undertaker acting reasonably approves the costs contained in the notice provided under this paragraph prior to the works being carried out.

• (2) If during the construction of a specified work or a protective work by the undertaker, the Company gives notice to the undertaker that the Company desires itself to construct that part of the specified work or protective work which in the reasonable opinion of the engineer is endangering the stability of HS1 property or the safe operation of traffic on High Speed 1 then, if the undertaker decides that part of the specified work or protective work is to be constructed, the Company must assume construction of that part of the specified work or protective work and the undertaker must, regardless of any such approval of a specified work or protective work under paragraph 100, pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may suffer by reason of the execution by the Company of that specified work or protective work provided that the undertaker is not liable under this paragraph for any injury, loss, damage, costs arising from the negligence of the Company or any person for whom it is responsible in respect of any specified or protective works under.

• (3) If the cost of maintaining, working or renewing HS1 property are reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be notified to the undertaker by the Company as soon as reasonably practicable and is to be set off against any sum payable by the undertaker to the Company under this paragraph.

• (4) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 105 provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.