The Stonestreet Green Solar Order 2025

SCHEDULE2A (1) (1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 27 (application of the 1981 Act) of the Stonestreet Green Solar Order 2025 in respect of the land to which the notice to treat relates. (2) But see article 28 (acquisition of subsoil and airspace only) of the Stonestreet Green Solar Order 2025 which excludes acquisition of subsoil or airspace only from this Schedule. (2) In this Schedule, “house” includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner’s interest in the house, building or factory. (4) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter-notice, the acquiring authority must decide whether to— (a) withdraw the notice to treat; (b) accept the counter-notice; or (c) refer the counter-notice to the Upper Tribunal. (6) The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the authority decides to refer the counter-notice to the Upper Tribunal they must do so within the decision period. (8) If the authority does not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (10) On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory; or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making its determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right or the imposition of the covenant; (b) the use to be made of the right or covenant proposed to be acquired or imposed; and (c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take. (13) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (14) (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of six weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice. (3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 12 — ACQUISITION OF WAYLEAVES, EASEMENTS AND OTHER RIGHTS

PART 1 — ON BEHALF OF LICENCE HOLDERS

Acquisition of necessary wayleaves

1

• (1) This paragraph applies where—

• (a) a licence holder has agreed in writing with the undertaker that it is necessary or expedient to remove an electric line within the Order limits and to install and keep installed an electric line in substitution for it on, under or over specified land;

• (b) the licence holder has agreed in writing that the undertaker may seek a necessary wayleave on behalf of the licence holder in respect of the specified land; and

• (c) the owner or occupier of the specified land, having been given a notice by the undertaker or the licence holder requiring him to give the necessary wayleave to the licence holder within a period (not being less than 21 days) specified in the notice—

• (i) has failed to give the wayleave before the end of that period; or

• (ii) has given the wayleave subject to terms and conditions to which the undertaker,

following consultation with the licence holder, objects.

• (2) Subject to sub-paragraphs (3) and (4) below, the Secretary of State may, on the application of the undertaker, himself grant the necessary wayleave to the licence holder subject to such terms and conditions as he thinks fit; and a necessary wayleave so granted shall, unless previously terminated in accordance with a term contained in the wayleave, continue in force for such period as may be specified in the wayleave.

• (3) The Secretary of State shall not entertain an application under sub-paragraph (2) above in any case where—

• (a) the specified land is covered by a dwelling, or will be so covered on the assumption that any planning permission which is in force is acted on; and

• (b) the line is to be installed on or over the specified land.

• (4) Before granting the necessary wayleave to the licence holder, the Secretary of State shall afford—

• (a) the occupier of the specified land; and

• (b) where the occupier is not also the owner of the specified land, the owner, an opportunity of being heard by a person appointed by the Secretary of State.

• (5) A necessary wayleave granted to the licence holder under this paragraph—

• (a) shall not be subject to the provisions of any enactment requiring the registration of interests in, charges over or other obligations affecting land; but

• (b) shall bind any person who is at any time the owner or occupier of the specified land.

• (6) Where in pursuance of a necessary wayleave granted under this paragraph a licence holder has erected on any land supports for an electric line, he shall be deemed to have an interest in that land for the purposes of section 7 of the Mines (Working Facilities and Support) Act 1966.

• (7) Where a wayleave is granted to a licence holder under this paragraph—

• (a) the occupier of the specified land; and

• (b) where the occupier is not also the owner of the specified land, the owner, may recover from the undertaker compensation in respect of the grant.

• (8) Where in the exercise of any right conferred by such a wayleave any damage is caused to the specified land or to movables, any person interested in the specified land or movables may recover from the undertaker compensation in respect of that damage; and where in consequence of the exercise of such a right a person is disturbed in his enjoyment of any land or movables he may recover from the undertaker compensation in respect of that disturbance.

• (9) Compensation under this paragraph may be recovered as a lump sum or by periodical payments or partly in one way and partly in the other.

• (10) Any question of disputed compensation under this paragraph shall be determined by the Tribunal; and section 4 of the Land Compensation Act 1961 shall apply to any such determination.

Compulsory acquisition of easements or other rights

2

• (1) This paragraph applies where—

• (a) a licence holder has agreed in writing with the undertaker that it is necessary or expedient to remove an electric line within the Order limits and to install and keep installed an electric line in substitution for it on, under or over specified land; and

• (b) the licence holder has agreed in writing that the undertaker may seek an easement or other right in land on behalf of the licence holder in respect of the specified land.

• (2) Subject to sub-paragraph (3) and (4), where a compulsory purchase order is sought by the undertaker pursuant to sub-paragraph (1), the Secretary of State may authorise the relevant licence holder to purchase compulsorily an easement or right over the specified land where the Secretary of State is satisfied that it is required for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on.

• (3) Part I (paragraphs 2 onwards) and Part II of Schedule 3 of the Electricity Act 1989 shall apply in respect of powers of compulsory purchase sought pursuant to this paragraph.

• (4) Unless otherwise agreed between the undertaker and the licence holder in writing, where the undertaker seeks a compulsory purchase order on behalf of a licence holder pursuant to this paragraph, the negotiation of consideration and compensation shall be undertaken by the undertaker and any consideration or compensation agreed or determined shall be payable by the undertaker and Schedule 3 of the Electricity Act 1989 as applied by this paragraph shall be interpreted accordingly.

Interpretation

3

In this Part of this Schedule—

• “dwelling” means a building or part of a building occupied, or (if not occupied) last occupied or intended to be occupied, as a private dwelling and includes any garden, yard, outhouses and appurtenances belonging to or usually enjoyed with that building or part;

• “licence holder” means a person holding a licence under section 6 of the Electricity Act 1989;

• “necessary wayleave” means consent for the licence holder to install and keep installed the electric line on, under or over the specified land and to have access to the specified land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line;

• “specified land” means the land within or outside the Order limits on, under or over which a licence holder agrees, pursuant to paragraph 1 or 2, that an electric line should be relocated in substitution for an existing electric line; and

• “Tribunal” means the Upper Tribunal in relation to England and Wales.

PART 2 — ON BEHALF OF CODE OPERATORS

Court imposition of code rights

4

• (1) This paragraph applies where—

• (a) a code operator has agreed in writing with the undertaker that for the purpose of the authorised development it is necessary or expedient to remove electronic communications apparatus owned by the code operator within the Order limits and to install and keep installed electronic communications apparatus in substitution for it on, under or over specified land;

• (b) the code operator has agreed in writing that the undertaker may seek code rights on behalf of the code operator in respect of the specified land, including all of the other terms of the agreement sought; and

• (c) the code operator or the undertaker has given the relevant person a notice in writing—

• (i) setting out the code rights, and all of the other terms of the agreement sought, and

• (ii) stating that the person’s agreement to those terms is sought.

• (2) The undertaker may apply to the court for an order under this paragraph if the relevant person does not, before the end of 28 days beginning with the day on which the notice in sub-paragraph (1)(c) is given, agree to confer or be otherwise bound by the code rights.

• (3) An order under this paragraph is one which imposes on the code operator and the relevant person an agreement between them which—

• (a) confers the code rights on the operator, or

• (b) provides for the code rights to bind the relevant person.

• (4) Where the undertaker makes an application to the court under sub-paragraph (2), paragraphs 21, 22, 23, 24 and 26 of Part 4 of Schedule 3A (The Electronic Communications Code) and Part 14 (Compensation under The Code) of the Communications Act 2003 shall apply as if—

• (a) (reference to the making of an ‘order under paragraph 20’ were substituted for the making of an order under Schedule 12 (acquisition of wayleaves, easements and other rights) of the Stonestreet Green Solar Order 2025; and

• (b) unless otherwise agreed on a case-by-case basis in writing between the undertaker and the code operator, all references to ’consideration’ or ’compensation’ provided for in any agreement or order or otherwise to be determined shall be read as being payable by the undertaker.

Compulsory acquisition of easements or other rights

5

• (1) The undertaker may seek a compulsory purchase order on behalf of a code operator where—

• (a) the code operator has agreed in writing with the undertaker that for the purpose of the authorised development it is necessary or expedient to remove electronic communications apparatus owned by the operator within the Order limits and to install and keep installed electronic communications apparatus in substitution for it on, under or over specified land;

• (b) the code operator has agreed in writing that the undertaker may seek an easement or other rights over land on behalf of the code operator in respect of the specified land.

• (2) Subject to sub-paragraph (3) and (4), where a compulsory purchase order is sought by the undertaker pursuant to sub-paragraph (1), the Secretary of State may authorise the relevant code operator to purchase compulsorily the specified land or an easement or right over the specified land if the Secretary of State is satisfied that it is required by the code operator—

• (a) for, or in connection with, the establishment or running of the code operator’s network; or

• (b) as to which it can reasonably be foreseen that it will be so required.

• (3) Subject to sub-paragraph (4), paragraphs 3(2) to 3(7) of Schedule 4 of the Communications Act 2003 shall apply in respect of powers of compulsory purchase sought pursuant to this paragraph.

• (4) Unless otherwise agreed between the undertaker and the licence holder in writing, where the undertaker seeks a compulsory purchase order on behalf of a code operator pursuant to this paragraph, all negotiations of compensation shall be undertaken by the undertaker and any consideration or compensation agreed or determined in respect of any easements or rights acquired shall be payable by the undertaker and Schedule 4 of the Communications Act 2003 shall be interpreted accordingly as it applies to this paragraph.

Interpretation

6

In this Part of this Schedule, the following terms have the following meanings—

• “code operator’s network” has the meaning given for ‘operator’s network’ in paragraph 6 of Schedule 3A of the Communications Act 2003;

• “code rights” has the meaning given in paragraph 3 of Schedule 3A of the Communications Act 2003;

• “court” has the meaning given in paragraph 94 of Schedule 3A of the Communications Act 2003;

• “electronic communications apparatus” has the meaning given in paragraph 5 of Schedule 3A of the Communications Act 2003;

• “code operator” has the meaning given for an ‘operator’ in paragraph 2 of Schedule 3A of the Communications Act 2003;

• “relevant person” means the person in respect of whose interest in land a code right is required;

• “specified land” means the land within or outside the Order limits on, under or over which an operator agrees, pursuant to paragraph 4(1), that electronic communications apparatus should be relocated in substitution for existing electronic communications apparatus.

PART 3 — ON BEHALF OF WATER AND SEWERAGE UNDERTAKERS

Compulsory acquisition of easements or other rights

7

• (1) The undertaker may seek a compulsory purchase order on behalf of a water or sewerage undertaker where—

• (a) the water or sewerage undertaker has agreed in writing with the undertaker that for the purpose of the authorised development it is necessary or expedient to remove water or sewerage apparatus owned by the water or sewerage undertaker within the Order limits and to install and keep installed alternative apparatus in substitution for it on, under or over specified land;

• (b) the water or sewerage undertaker has agreed in writing that the undertaker may seek an easement or other rights over land on behalf of the water or sewerage undertaker in respect of the specified land.

• (2) Subject to sub-paragraph (3), where a compulsory purchase order is sought by the undertaker pursuant to sub-paragraph (1), the Secretary of State may authorise the relevant water or sewerage undertaker to purchase compulsorily the specified land or an easement or right over the specified land where the Secretary of State is satisfied that it is required by the water or sewerage undertaker for the purposes of, or in connection with, the carrying out of its functions.

• (3) Section 155(3) to (6) of the Water Industry Act 1991 shall apply in respect of powers of compulsory purchase sought pursuant to this paragraph.

• (4) Unless otherwise agreed between the undertaker and the water or sewerage undertaker in writing, where the undertaker seeks a compulsory purchase order on behalf of a water or sewerage undertaker pursuant to this paragraph, all negotiations of compensation shall be undertaken by the undertaker and any consideration or compensation agreed or determined in respect of any easements or rights acquired shall be payable by the undertaker.

• (5) In this paragraph—

• “alternative apparatus” means alternative water or sewerage apparatus adequate to enable the water or sewerage undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

• “specified land” means the land within or outside the Order limits on, under or over which a water or sewerage undertaker agrees, pursuant to sub-paragraph (1), that alternative apparatus should be relocated in substitution for existing relevant water or sewerage apparatus.

• “water or sewerage undertaker” means ’water undertaker’ or ’sewerage undertaker’ as defined in the Water Industry Act 1991; and

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

PART 4 — ON BEHALF OF GAS TRANSPORTERS

Compulsory acquisition of easements or other rights

8

• (1) The undertaker may seek a compulsory purchase order on behalf of a gas transporter where—

• (a) the gas transporter has agreed in writing with the undertaker that for the purpose of the authorised development it is necessary or expedient to remove gas apparatus owned by the gas transporter within the Order limits and to install and keep installed gas apparatus in substitution for it on, under or over specified land; or

• (b) the gas transporter has agreed in writing that the undertaker may seek an easement or other rights over land on behalf of the gas transporter in respect of the specified land.

• (2) Subject to sub-paragraph (3) and (4), where a compulsory purchase order is sought by the undertaker pursuant to sub-paragraph (1), the Secretary of State may authorise the relevant gas transporter to purchase compulsorily an easement or right over the specified land.

• (3) Schedule 3 of the Gas Act 1986 shall apply in respect of powers of compulsory purchase sought pursuant to this paragraph.

• (4) Where the undertaker seeks a compulsory purchase order on behalf of a gas transporter pursuant to this paragraph, all negotiations of compensation shall be undertaken by the undertaker, unless otherwise agreed with the gas transporter, and any consideration or compensation agreed or determined in respect of any easements or rights acquired shall be payable by the undertaker only (unless otherwise agreed with the operator).

• (5) In this paragraph—

• “alternative apparatus” means alternative gas apparatus adequate to enable the gas transporter in question to fulfil its statutory functions in a manner not less efficient than previously;

• “gas apparatus” means any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purpose of gas supply;

• “gas transporter” has the meaning given in Part 1 of the Gas Act 1986; and

• “specified land” means land within or outside the Order limits on, under or over which a gas transporter agrees, pursuant to sub-paragraph (1), that alternative apparatus should be relocated in substitution for existing gas apparatus.

SCHEDULE 13 — PROTECTIVE PROVISIONS

PART 1 — FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

Application

1

For the protection of the affected undertakers referred to in this Part of this Schedule (save for any utility undertakers which are specifically protected by any other Part of this Schedule, which will take precedence) the following provisions have effect, unless otherwise agreed in writing between the undertaker and the affected undertaker concerned.

Interpretation

2

In this Part of this Schedule—

• “affected undertaker” means—any licence holder within the meaning of Part 1 (electricity supply) of the 1989 Act;a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986⁶¹;a water undertaker within the meaning of the Water Industry Act 1991⁶²; ora sewerage undertaker within the meaning of Part 1 (preliminary) of the Water Industry Act 1991,

for the area of the authorised development but, for the avoidance of doubt, does not include the undertakers specified in Parts 3 to 7 of this Schedule, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained;

• “alternative apparatus” means alternative apparatus adequate to enable the affected undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

• “apparatus” means—in the case of an electricity undertaker, electric lines or electric plant (as defined in the 1989 Act), belonging to or maintained by that affected undertaker;in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;in the case of a water undertaker—mains, pipes or other apparatus belonging to or maintained by that affected undertaker for the purposes of water supply; andany water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991;in the case of a sewerage undertaker—any drain or works vested in the affected undertaker under the Water Industry Act 1991; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 of that Act,

and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties; and

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

Precedence of the 1991 Act in respect of apparatus in the streets

3

This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the affected undertaker are regulated by the provisions of Part 3 (water supply) of the Water Industry Act 1991.

Removal of apparatus

4

• (1) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the affected undertaker in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an affected undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (2), afford to the affected undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

• (2) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (1), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the affected undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (3) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the affected undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 44 (arbitration).

• (4) The affected undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 44 (arbitration) and after the grant to the affected undertaker of any such facilities and rights as are referred to in sub-paragraph (1) or (2), 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.

• (5) Regardless of anything in sub-paragraph (4), if the undertaker gives notice in writing to the affected undertaker in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by the affected undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the affected undertaker.

Facilities and rights for alternative apparatus

5

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to an affected undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and the affected undertaker in question or in default of agreement settled by arbitration in accordance with article 44 (arbitration).

• (2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the affected undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that affected undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

6

• (1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 4(1) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 4(1), the undertaker must submit to the affected undertaker in question a plan, section and description of the works to be executed.

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

• (3) Any requirements made by an affected undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

• (4) If an affected undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 5 apply as if the removal of the apparatus had been required by the undertaker under paragraph 4(1).

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

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

Expenses and costs

7

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to an affected undertaker the reasonable expenses incurred by that affected undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 4(1).

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

• (3) If in accordance with the provisions of this Part of this Schedule—

• (a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 44 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the affected undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

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

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

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

• (5) An amount which apart from this sub-paragraph would be payable to an affected undertaker in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the affected undertaker 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.

8

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 4(1), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of an affected undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any affected undertaker, the undertaker must—

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

• (b) provide reasonable compensation to that affected undertaker for any other expenses, loss, damages, penalty or costs incurred by the affected undertaker,

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

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

• (3) An affected undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, will have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Enactments and agreements

9

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

PART 2 — FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

10

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

11

In this Part of this Schedule—

• “the 2003 Act” means the Communications Act 2003⁶³;

• “the code rights” has the same meaning as in the Paragraph 3 of the electronic communications code⁶⁴;

• “electronic communications apparatus” has the same meaning as in the electronic communications code;

• “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act;

• “electronic communications code network” means— so much of an electronic communications network or infrastructure system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (Application of the electronic communications code) of the 2003 Act; and an electronic communications network which the undertaker is providing or proposing to provide.

• “electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 (Application of the electronic communications code) of the 2003 Act;

• “infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) of that code; and

• “operator” means the operator of an electronic communications code network.

12

The exercise of the powers conferred by this Order is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

13

• (1) Subject to sub-paragraph (2), if as a result of the authorised development or its construction, or of any subsidence resulting from any of the authorised development—

• (a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development), or other property of an operator; or

• (b) there is any interruption in the supply of the service provided by an operator,

the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other reasonable expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.

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

14

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

15

Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 44 (arbitration).

16

This Part of this Schedule does not apply to—

• (a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or

• (b) any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

17

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

PART 3 — FOR THE PROTECTION OF SOUTHERN WATER

18

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

19

In this Part of this Schedule—

• “alternative apparatus” means alternative apparatus adequate to enable Southern Water to fulfil its statutory functions in not less efficient a manner than previously;

• “apparatus” means—any works, mains, pipes, pumping stations, connections, water booster stations or any other ancillary apparatus belonging to or maintained by Southern Water for the purposes of water supply, water removal or drainage;any drain or works vested in Southern Water under the Water Industry Act 1991; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of the Water Industry Act 1991 or an agreement to adopt made under section 104 (agreements to adopt sewer, drain or sewage disposal works, at a future date) of that Act,

and includes a sludge main, disposal main or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any sewer, drain, or works (within the meaning of section 219 (general interpretation) of that Act) and any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

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

• “plan” includes all designs, drawings, design principles, site locations, accesses, soil reports, programmes, calculations, risk assessments, standoff distances, sections, drawings, specifications, method statements and other documents that are reasonably necessary to properly and sufficiently to describe the works to be executed; and

• “Southern Water” means Southern Water Services Limited, company number 02366670, whose registered office is at Southern House, Yeoman Road, Worthing, West Sussex, BN13 3NX.

Precedence of the 1991 Act in respect of apparatus in streets

20

This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Southern Water are regulated by the provisions of Part 3 (water supply) of the 1991 Act.

Apparatus in closed streets

21

Regardless of the temporary closure or diversion of any street under the powers conferred by article 17 (public rights of way – stopping up and vehicular use on public rights of way), Southern Water 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 subject to serving 7 days’ notice on the undertaker (save in cases of emergency).

Removal of apparatus

22

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that Southern Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of Southern Water 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 Southern Water in accordance with sub-paragraphs (1) to (8) and until—

• (a) any requirement for a permit under the Environmental Permitting (England and Wales) Regulations 2016⁶⁵ or other legislation and any other associated consents are obtained, and any approval or agreement required from Southern Water on alternative locations as a result of such re-location are approved, such approvals from Southern Water not to be unreasonably withheld or delayed; and

• (b) the undertaker has made the appropriate application required under the Water Industry Act 1991 together with a plan and section of the works proposed and Southern Water has agreed all of the documentation required under the Water Industry Act 1991, such agreement not to be unreasonably withheld or delayed; and such works to be executed only in accordance with the plan, section and description submitted and in accordance with such reasonable requirements as may be made by Southern Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it.

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Southern Water written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order Southern Water reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Southern Water the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, Southern Water must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall not extend to the requirement for Southern Water to use its compulsory purchase powers to this end unless it elects to do so.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Southern Water and the undertaker or in default of agreement settled by arbitration in accordance with article 44 (arbitration).

• (5) Southern Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 44 (arbitration) and after the grant to Southern Water of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

• (6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to Southern Water that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertaker, and Southern Water will refer to its own guidance, policies and specifications for carrying out works of that nature, and if agreed by Southern Water (such agreement not to be unreasonably withheld or delayed), that work, instead of being executed by Southern Water, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of Southern Water.

• (7) Whenever alternative apparatus is to be or is being substituted for existing apparatus, the undertaker will, before taking any steps that will trigger the need for those substitution works, use best endeavours to comply with Southern Water’s reasonable requests for a reasonable period of time to enable Southern Water to—

• (a) make network contingency arrangements; or

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

• (8) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) ) within the standoff distances agreed between the parties under sub-paragraph (2) and for the purposes of a sewer or rising main is the standard protective strip which is the strip of land falling 3 metres either side of the sewer or rising main or so as to require any special measures that are outside industry standard measures other than in accordance with paragraph 26 (retained apparatus) below unless otherwise agreed with Southern Water, such agreement not to be unreasonably withheld or delayed, with such provision being brought promptly to the attention of any agent or contractor responsible for carrying out any work on behalf of the undertaker.

Access

23

• (1) If in consequence of the exercise of the powers conferred by the Order the access to any apparatus is obstructed or rendered materially less convenient (in Southern Water’s opinion, acting reasonably) the undertaker must provide such alternative means of access to such apparatus as will enable Southern Water to maintain or use the apparatus no less effectively or conveniently than was possible before such obstruction.

• (2) Where the undertaker proposes to provide to Southern Water an alternative means of access to any apparatus in compliance with sub-paragraph (1), the powers conferred by the Order must not be exercised until Southern Water has approved the proposed alternative means of access (such approval not to be unreasonably withheld or delayed).

Facilities and rights for alternative apparatus

24

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Southern Water facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Southern Water or in default of agreement settled by arbitration in accordance with article 44 (arbitration).

• (2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to Southern Water than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to Southern Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Identification and notification of apparatus

25

If in consequence of the exercise of the powers conferred by the Order, previously unmapped sewers, lateral drains or other apparatus are identified by the undertaker, notification of the location of such assets must immediately be given to Southern Water and afforded the same protection of other Southern Water assets.

Retained apparatus

26

• (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used pursuant to the powers of this Order that are near to, or will or may affect, any apparatus where the removal of which has not been required by the undertaker, the undertaker must submit to Southern Water for approval a plan, section and description of the works to be executed.

• (2) The undertaker must not commence the works outlined in sub-paragraph (1) until the plan of works has been approved by Southern Water (such approval not to be unreasonably withheld or delayed).

• (3) Those works must be executed only in accordance with the plan, section and description submitted and approved under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (4) by Southern Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Southern Water is entitled to watch and inspect the execution of those works.

• (4) Any reasonable requirements made by Southern Water under sub-paragraph (3) shall be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

• (5) If the revised plan of works is not approved within 21 days, either the undertaker or Southern Water may require a meeting to be held within 28 days of submission of the revised plan of works between the chief engineers or a suitably qualified alternative representative of the undertaker and Southern Water to agree the plan of works.

• (6) If the undertaker and Southern Water fail to reach an agreement on the plan of works, the dispute shall be resolved in accordance with article 44 (arbitration).

• (7) If Southern Water in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 18 to 20 and 23 to 25 apply as if the removal of the apparatus had been required by the undertaker under paragraph 22(2).

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

• (9) The undertaker is not required to comply with sub-paragraph 26(1) in a case of emergency but in that case it must give to Southern Water notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

• (10) For the purposes of sub-paragraph (1), works are deemed to be in land near Southern Water’s apparatus if those works fall within the standoff distances agreed between the parties under sub-paragraph (2).

Expenses and costs

27

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to Southern Water the reasonable expenses incurred by Southern Water in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 22(2).

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

• (3) If in accordance with the provisions of this Part of this Schedule—

• (a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 44 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to Southern Water in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

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

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

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

• (5) An amount which apart from this sub-paragraph would be payable to Southern Water in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on Southern Water 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.

28

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 22(1) any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of Southern Water, or there is any interruption in any service provided, or in the supply of any goods, by Southern Water, the undertaker must—

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

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

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

• (2) The fact that any act or thing may have been done by Southern Water on behalf of the undertaker or in accordance with a plan approved by Southern Water or in accordance with any requirement of Southern Water or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

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

• (4) Southern Water must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise may be made without the consent of the undertaker which, if it withholds such consent, will have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Arbitration

29

For the avoidance of doubt any difference under any provision of this Part of this Schedule, unless otherwise provided for, shall be referred to and settled by arbitration in accordance with article 44 (arbitration), by a single arbitrator to be agreed upon by the parties, within 14 days of receipt of the notice of arbitration, or if the parties fail to agree within the time period stipulated, to be appointed on application of either party (after giving written notice to the other) by the Secretary of State.

Acquisition of land

30

Regardless of any provision in the Order or anything shown on the land plans, the undertaker must not acquire any apparatus other by agreement with Southern Water.

Enactments and agreements

31

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

PART 4 — FOR THE PROTECTION OF SOUTH EASTERN POWER NETWORKS PLC

Application

32

• (1) For the protection of the utility undertakers referred to in this Part of this Schedule, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertakers concerned.

• (2) The provisions of this Part of this Schedule will not apply to any authorised development carried out by UK Power Networks or National Grid pursuant to article 6 (benefit of the Order) or article 7 (consent to transfer benefit of the Order) of this Order.

Interpretation

33

In this Part of this Schedule—

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

• “apparatus” means electric lines and electrical plant (as defined in section 64(1) of the Electricity Act 1989) belonging to or maintained by the utility undertaker;

• “functions” includes powers and duties;

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

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

• “specified works” means any of the authorised development which—will or may be situated within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 37(2) or otherwise; ormay in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 37(2) or otherwise; and

• “utility undertaker” means South Eastern Power Networks plc (company number 03043097), whose registered office is at Newington House, 237, Southwark Bridge Road, London, SE1 6NP.

On street apparatus

34

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

Apparatus in stopped up rights of way

35

• (1) Where any public right of way is closed or stopped up under article 17 (public rights of way – stopping up and vehicular use on public rights of way) and the utility undertaker has apparatus in that public right of way, the utility undertaker will continue to have the same powers and rights in respect of that apparatus as it enjoyed immediately before the closure or stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 37 (removal of apparatus) or the power of the undertaker to carry out works under paragraph 39 (retained apparatus).

• (2) Regardless of 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), the utility undertaker is at liberty at all times to take all necessary access across any such closed or diverted street and to execute and do all such works and things in 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

36

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 with the utility undertaker.

Removal of apparatus

37

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of the utility undertaker in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in accordance with sub-paragraphs (2) to (5).

• (2) If, for the purpose of executing any specified works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker no less than 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order the utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance and use of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed, save that this obligation does not extend to the requirement for the utility undertaker to use its powers of compulsory acquisition unless it elects to do so.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker and the undertaker or in default of agreement settled by arbitration in accordance with article 44 (arbitration).

• (5) The utility undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 44 (arbitration), and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

• (6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.

Facilities and rights for alternative apparatus

38