The Cory Decarbonisation Project Order 2025

• (b) discharge or allow to escape either directly or indirectly into the river Thames any offensive or injurious matter in suspension or otherwise; or

• (c) directly or indirectly discharge any water into the river Thames.

• (2) Any consent of the PLA under this paragraph must not be unreasonably withheld or delayed but may be given subject to such terms and conditions as the PLA may reasonably impose.

• (3) Any consent under this paragraph is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 35 days of the day on which the request for consent is submitted under sub-paragraph (1).

62

The undertaker must not, in exercise of the powers conferred by article 21 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river Thames unless such damage or interference is approved as a specified work under this Order or otherwise forms part of the authorised development and is otherwise approved by the PLA.

Navigational lights, buoys, etc.

63

• (1) The undertaker must, at or near a specified work, a structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act) or a location where a specified function is being exercised, exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the PLA may from time to time reasonably require.

• (2) The PLA must give the undertaker not less than 20 business days’ written notice of a requirement under sub-paragraph (1) except in the case of emergency when the PLA must give such notice as is reasonably practicable.

Directions as to lights

64

The undertaker must comply with any reasonable directions issued from time to time by the PLA Harbour Master with regard to the lighting of—

• (a) a specified work or a structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act); or

• (b) the carrying out of a specified function or the use of apparatus for the purposes of such a function,

or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river Thames.

Permanent lights on tidal works

65

After the completion of a specified work the undertaker must at the outer extremity of that work exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as the PLA may from time to time direct.

Removal, etc. of the PLA’s moorings and buoys

66

• (1) Subject to sub-paragraph (2), if by reason of the construction of any specified work or the exercise of any specified function it is reasonably necessary for the PLA to incur the cost of—

• (a) temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the PLA;

• (b) laying down and removing substituted moorings or buoys; or

• (c) carrying out dredging operations for any such purpose,

not being costs which it would have incurred for any other reason, the undertaker must pay the costs reasonably so incurred by the PLA.

• (2) The PLA must give to the undertaker not less than 20 business days’ notice of its intention to incur such costs, and take into account any representations which the undertaker may make in response to the notice within 10 business days of the receipt of the notice.

Sedimentation, etc. remedial action

67

• (1) This paragraph applies if any part of the river Thames has become or is likely to become subject to sedimentation, scouring or other changes in the flow or regime of the river Thames which—

• (a) is wholly or partly caused by a specified work or the carrying out of a specified function during the period beginning with the commencement of construction of the work or function and (subject to sub-paragraph (4)) ending with the expiration of six years after the date of completion of all the specified works comprised in the authorised development; and

• (b) for the safety of navigation or for the protection of any works in the river Thames, should in the reasonable opinion of the PLA be removed or made good.

• (2) Subject to sub-paragraph (3) the undertaker must either—

• (a) pay to the PLA any additional expense to which the PLA may reasonably be put in dredging the river Thames to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to either or both the specified work and the specified function; or

• (b) carry out the necessary dredging or work to make good the scouring at its own expense and subject to the prior approval of the PLA which may be subject to reasonable conditions but which may not be unreasonably withheld or delayed;

and the expenses payable by the undertaker under this sub-paragraph include any additional expenses accrued or incurred by the PLA in carrying out surveys or studies which may be agreed with the undertaker in connection with the implementation of this paragraph.

• (3) If it is established that the sedimentation, scouring or other changes in the flow or regime of the river was partly caused by a specified work or a specified function and partly by another factor, the undertaker’s liability under sub-paragraph (2) is apportioned accordingly.

• (4) At any time before the expiry of the period of six years after the date of completion of Work No. 4 (“the completion date”) the PLA may serve notice on the undertaker stating that in the opinion of the PLA the river Thames or any part of it may, after the expiry of that period, become subject to sedimentation, scouring or other changes in its flow or regime wholly or partly caused by a specified work or specified function. Any such notice must specify—

• (a) the additional period (not exceeding 10 years after the completion date) during which the provisions of sub-paragraphs (1) and (2) ought to apply; and

• (b) the PLA’s reasons for reaching that opinion.

• (5) On receipt of any such notice the undertaker may serve a counter-notice within 30 business days beginning on the day the notice was received, such notice to include details of the undertaker’s objection to the PLA’s notice or any conditions it may wish to impose on compliance by the undertaker with the PLA’s notice.

• (6) In the event that the PLA and the undertaker cannot agree the matters raised in the PLA’s notice and the undertaker’s counter-notice within two months from the service of the undertaker’s counter-notice, either party may refer the matter to arbitration under paragraph 78.

• (7) If the undertaker fails to serve a counter-notice or if it serves a counter-notice and the matter is either agreed between the PLA and the undertaker or determined pursuant to sub-paragraph (6), then the provisions of sub-paragraphs (1) and (2) will apply during such additional period as is specified in the PLA’s notice or as may be so agreed or determined.

Removal of temporary works

68

• (1) On completion of the construction of the whole or any part of a permanent specified work, the undertaker must—

• (a) as soon as reasonably practicable after such completion seek approval under paragraph 59 for the removal required by sub-paragraph (b); and

• (b) as soon as reasonably practicable after the grant of that approval under paragraph 59 remove—

• (i) in the case of completion of part of a permanent specified work, any temporary tidal work (other than a residual structure) carried out only for the purposes of that part of the permanent specified work;

• (ii) on completion of all the specified works, any remaining temporary tidal work (other than a residual structure); and

• (iii) in either case, any materials, plant and equipment used for such construction,

and make good the site to the reasonable satisfaction of the PLA.

• (2) For the purposes of the undertaker making good the site in accordance with sub-paragraph (1)(b), the PLA may require that—

• (a) any residual structure is cut off by the undertaker at such level below the bed of the river Thames as the PLA may reasonably direct; and

• (b) the undertaker takes such other steps to make the residual structure safe as the PLA may reasonably direct.

• (3) As soon as reasonably practicable after the undertaker has complied with the PLA’s requirements under sub-paragraphs (1) and (2) in relation to any residual structure, the PLA will grant the undertaker a works licence for that structure under section 66 (licensing of works) of the 1968 Act, and the terms of the licence are to reflect such requirements.

• (4) For the avoidance of doubt, article 8 (interaction with the 1968 Act) will not apply to a residual structure which will, accordingly, be subject to sections 66 to 75 of the 1968 Act.

• (5) In this paragraph—

• “residual structure” means any part of a temporary tidal work that the PLA agrees cannot reasonably be removed by the undertaker on completion of the construction of the permanent specified works; and

• “tidal work” means any specified work any part of which is, or may be, or, in, under or over the surface of land below mean high water level forming part of the river Thames.

Protective action

69

• (1) If any specified work or the exercise of any specified function—

• (a) is constructed or carried out otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given under paragraph 59(4); or

• (b) during construction or carrying out gives rise to sedimentation, scouring, currents, wave action, or worsening of the condition of the river bed, which would be materially detrimental to traffic in, or the flow or regime of, the river Thames,

then the PLA may by notice in writing require the undertaker at the undertaker’s own expense to comply with the remedial requirements specified in the notice.

• (2) The requirements that may be specified in a notice given under sub-paragraph (1) are—

• (a) in the case of a specified work or specified function to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—

• (i) this Part of this Schedule; or

• (ii) the condition that has been breached; or

• (b) in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents, wave action, or material worsening of the condition of the river bed, so far as required by the needs of traffic in, or the flow or regime of, the river Thames.

• (3) If the undertaker does not comply with a notice under sub-paragraph (1), or is unable to do so then the PLA may in writing require the undertaker to—

• (a) remove, alter or pull down the specified work, and where the specified work is removed to restore the site of that work (to such extent as the PLA reasonably requires) to its former condition; or

• (b) take such other action as the PLA may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.

• (4) If a specified work gives rise to materially new or materially different environmental effects than those identified in any environmental document, the undertaker must, in compliance with its duties under any enactment, take such action as is necessary to prevent or mitigate adverse environmental impacts and in so doing must consult and seek to agree the necessary measures with the PLA.

• (5) If the PLA becomes aware that any specified work is causing materially new or materially different environmental effects than those identified in any environmental document, the PLA must notify the undertaker of that environmental impact, the reasons why the PLA believes that an adverse environmental impact is being caused by the specified work and of measures that the PLA reasonably believes are necessary to counter or mitigate that adverse environmental impact. The undertaker must implement either the measures that the PLA has notified to the undertaker or such other measures as the undertaker believes are necessary to counter the adverse environmental impact identified, giving reasons to the PLA as to why it has implemented such other measures.

• (6) In this paragraph “environmental document” means—

• (a) the environmental statement; and

• (b) any other document containing environmental information provided by the undertaker to the PLA for the purposes of any approval under paragraph 59.

Abandoned or decayed works

70

• (1) If a specified work or a structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act) is abandoned or falls into decay, the PLA may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the specified work or structure, or any part of it, or to remove the specified work or structure and (to such extent and within such limits as the PLA reasonably requires) restore the site of that work to its condition prior to the construction of the specified work or structure.

• (2) If any specified work or structure which remains in the river Thames by virtue of article 8 (interaction with the 1968 Act) is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river Thames, the PLA may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—

• (a) to repair and restore the work or structure or part of it; or

• (b) if the undertaker so elects, to remove the specified work or structure and (to such extent as the PLA reasonably requires) to restore the work or structure to its former condition.

• (3) If on the expiration of such reasonable period as may be specified in a notice under this paragraph the work specified in the notice has not been completed to the satisfaction of the PLA, the PLA may undertake that work and any expenditure reasonably incurred by the PLA in so doing is recoverable from the undertaker.

Facilities for navigation

71

• (1) The undertaker must not in the exercise of the powers conferred by this Order interfere with any marks, lights or other navigational aids in the river Thames without the consent of the PLA, and must ensure that access to such aids remains available during and following construction of any specified work or the exercise of any specified function.

• (2) The undertaker must provide at any specified work, or must afford reasonable facilities at such work (including an electricity supply) for the PLA to provide at the undertaker’s cost, from time to time such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation as the undertaker or the PLA may deem necessary by reason of the construction and presence of the specified work and must ensure access remains available to such facilities during and following construction of the specified work.

Survey of riverbed

72

• (1) The PLA may, at the undertaker’s expense (such expense to be that which is reasonably incurred), carry out a survey (or externally procure the carrying out of a survey) for the purpose of establishing the condition of the river Thames—

• (a) before the commencement of construction of the first specified work below mean high water level to be constructed following approval under paragraph 59;

• (b) before the commencement of construction of any other specified work, or the carrying out of any other specified function, approved under paragraph 59;

• (c) during the construction of any specified work, or the carrying out of any specified function, as is reasonably required, and

• (d) after completion of, respectively—

• (i) any specified work and the exercise of all related specified functions; and

• (ii) all the specified works constructed and specified functions carried out under this Order in relation to such construction,

of such parts of the river Thames as might be affected by sedimentation, scouring, currents, wave action or material worsening of the condition of the river bed that might result from the construction of the relevant specified work, or the carrying out of a specified function as would, if it were to be constructed or carried out, constitute specified works, or give rise to operations, below mean high water level.

• (2) Except where it relates to the authorised navigational channel of the river Thames or in an emergency, the PLA may only carry out surveys under sub-paragraph (1)(c)—

• (a) if it has given at least 14 days’ notice of its intention to do so to the undertaker (unless otherwise agreed by the undertaker);

• (b) if the timing of the survey has been agreed in advance of the surveys by the undertaker; and

• (c) subject to the undertaker’s ability to refuse access for surveys if the undertaker considers that the carrying out of surveys at that time would lead to safety concerns in the construction of the specified work or the carrying out of the specified function.

• (3) The PLA must make available to the undertaker the results of any survey carried out under this paragraph.

• (4) The PLA must not under this paragraph carry out a survey of any part of the river Thames in respect of which the undertaker has provided to the PLA survey material which the PLA is satisfied establishes the condition of the river Thames, and in the case of a survey under sub-paragraph (1)(b), the effect of the specified works and the specified functions.

• (5) A survey carried out under this paragraph is the property of the PLA.

Consideration for dredged material

73

• (1) The undertaker must pay to the PLA for material dredged by the undertaker under this Order from so much of the river Thames of which the freehold is vested in the PLA, consideration calculated at a rate agreed between them and otherwise in accordance with this paragraph.

• (2) The consideration due under sub-paragraph (1) applies only in respect to material dredged in the course of the construction of the authorised development based on the quantity of such material that—

• (a) is not used for the construction of the authorised development; and

• (b) is sold by the undertaker or by any other person exercising any powers under this Order.

Restriction on powers contained in Part 3 of this Order

74

Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order—

• (a) nothing contained in Part 3 of this Order nor article 39 (statutory undertakers) authorises the acquisition of any interest in, or the acquisition, appropriation, interference, overriding or extinguishment of any right in, on or over, or the imposing of restrictive covenants in any Order land (including airspace and subsoil) if the interest or right or the land to be affected by the restrictive covenant is (at the time of the proposed acquisition, appropriation, interference, overriding, extinguishment or the imposition of the restrictive covenant) land, airspace, subsoil or a right is vested in the PLA; and

• (b) nothing contained in article 37 (temporary use of land for carrying out the authorised development) or article 38 (temporary use of land for maintaining the authorised development) authorises the entering on and taking temporary possession or the entering of land (including airspace and subsoil) to gain access for maintenance in any Order land if the land at the time of the proposed entry the land, airspace or subsoil is vested in the PLA.

Protection for the PLA’s functions

75

• (1) Subject to article 8 (interaction with the 1968 Act) the exercise in, under or over the river Thames by the undertaker of any of its functions under this Order is subject to—

• (a) any enactment relating to the PLA;

• (b) any byelaw, direction or other requirement made by the PLA or the PLA Harbour Master under any enactment; and

• (c) any other exercise by the PLA or the PLA Harbour Master of any function conferred by or under any enactment.

• (2) The undertaker must not take any action in the river Thames in relation to the removal from the Order limits of any vessel or other thing except with the consent of the PLA Harbour Master, which must not be unreasonably withheld or delayed.

Indemnity

76

• (1) The undertaker is responsible for and must make good to the PLA all financial costs, charges, damages, losses or expenses which may be incurred reasonably or suffered by the PLA by reason of—

• (a) the construction or operation of a specified work or its failure;

• (b) the exercise of any specified function; or

• (c) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged on the construction or operation of a specified work or exercise of a specified function dealing with any failure of a specified work,

and the undertaker must indemnify the PLA from and against all claims and demands arising out of or in connection with the specified works or specified functions or any such failure, act or omission.

• (2) The undertaker will pay to the PLA its proper and reasonable legal costs, professional fees and disbursements incurred in connection with reviewing detailed design information, construction information and any other information submitted to the PLA in respect of a specified work or a specified function.

• (3) The undertaker will pay to the PLA the proper and reasonable costs of any notice to mariners that are required to be issued as a result of article 25(6) (works in the River Thames: conditions).

• (4) The fact that any act or thing may have been done—

• (a) by the PLA on behalf of the undertaker; or

• (b) by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the PLA, or in a manner approved by the PLA, or under its supervision or the supervision of its duly authorised representative,

does not (if it was done or required without negligence on the part of the PLA or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.

• (5) The PLA must give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1) and no settlement or compromise of it is to be made without the prior consent of the undertaker.

Consultation

77

• (1) The undertaker must consult with the PLA on draft documentation, prior to the submission of any plan, scheme or strategy under requirements 7 (code of construction practice), 10 (emergency preparedness and response plan), 11 (lighting strategy), 16 (jetty works environmental design scheme) and 23 (decommissioning environmental management plan) which relate to Work No. 4, to the relevant planning authority.

• (2) The undertaker must consult with the PLA on any updates to a plan, scheme or strategy approved under requirements 7 (code of construction practice), 10 (emergency preparedness and response plan), 11 (lighting strategy), 16 (jetty works environmental design scheme) and 23 (decommissioning environmental management plan) which relate to Work No. 4, prior to submission to the relevant planning authority under requirement 3 (approved details and amendments to them).

Disputes

78

Subject to any protocol agreed in writing by the parties, any dispute arising between the undertaker and the PLA under this Part of this Schedule is to be determined by arbitration as provided in article 49 (arbitration).

PART 6 — FOR THE PROTECTION OF UK POWER NETWORKS LIMITED, LONDON POWER NETWORKS PLC AND SOUTH EASTERN POWER NETWORKS PLC

79

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.

80

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 not less efficient than previously;

• “apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by that 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; and

• “utility undertaker” means— UK Power Networks Limited, whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP; London Power Networks plc, whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP; South Eastern Power Networks plc, whose registered office is at Newington House, 237 Southwark Bridge Road, London, SE1 6NP; for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

81

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 (street works in England and Wales) of the 1991 Act.

82

Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), a utility undertaker is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.

83

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

84

• (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 over which access to any apparatus is enjoyed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (6).

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ 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 a 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 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 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.

• (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 in question and the undertaker or in default of agreement settled by arbitration in accordance with article 49 (arbitration).

• (5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 49 (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 in question that it desires itself to execute any work, or part of any work, in connection with the removal of apparatus or construction of alternative apparatus in any land controlled by the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay and only in accordance with plans approved by the utility undertaker, such approval may be subject to such reasonable conditions including but not limited to the undertaker entering into an assets protection agreement with the utility undertaker as the utility undertaker deems necessary. The undertaker must carry out the works under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker subject to the utility undertaker’s reasonable specification.

85

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility 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 utility undertaker in question or in default of agreement settled by arbitration in accordance with article 49 (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 utility 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 utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

86

• (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 85, the undertaker must submit to the utility 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 utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.

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

• (4) If a utility 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 79 to 85 apply as if the removal of the apparatus had been required by the undertaker under paragraph 84(2).

• (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 utility 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.

87

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses incurred by that utility 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 84(2).

• (2) There is to 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 49 (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 utility undertaker in question by virtue of sub-paragraph (1) is to 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 where such extension is required in consequence of the execution of any such works as are referred to in paragraph 84(2); 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 treated as if it also had been agreed or had been so determined.

• (5) An amount which apart from this sub-paragraph would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1) if the works include the placing of apparatus provided in substitution for apparatus placed more than seven years and six months earlier so as to confer on the utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, is to be reduced by the amount which represents that benefit.

88

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 84(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—

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

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

• (2) Nothing in sub-paragraph 84(2)imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.

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

89

Where in consequence of the proposed construction of any of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 84(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 86, the undertaker must use reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its reasonable endeavours to co-operate with the undertaker for that purpose.

90

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

PART 7 — FOR THE PROTECTION OF SOUTHERN GAS NETWORKS PLC AS GAS UNDERTAKER

Application

91

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

Interpretation

92

In this Part of this Schedule—

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

• “apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by SGN for the purposes of gas distribution together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of SGN for the purposes of transmission, distribution and/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 (interpretation) 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 Schedule;

• “commence” has the same meaning as in article 2 (interpretation) and commencement is to be construed to have the same meaning save that for the purposes of this Part of the Schedule the terms “commence” and “commencement” include the permitted preliminary works;

• “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 and/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 SGN (such approval not to be unreasonably withheld or delayed) 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, requires the undertaker to submit for SGN’s 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 or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;

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

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

• “parent company” means a parent company of the undertaker acceptable to SGN and which shall have been approved by SGN acting reasonably;

• “rights” includes rights and restrictive covenants, and in relation to decommissioned apparatus the surrender of rights, release of liabilities and transfer of decommissioned apparatus;

• “SGN” means Southern Gas Networks plc or its successors in title or successor bodies and/or any successor as a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986.

• “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 the removal of which has not been required by the undertaker under sub-paragraph 97(2) or otherwise; and/or may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under sub-paragraph 97(2) or otherwise;

• “undertaker” means the undertaker as defined in article 2 (interpretation) of this Order.

On Street Apparatus

93

• (1) Except for paragraphs 94 (apparatus of SGN in stopped up streets), 97 (removal of apparatus) in so far as sub-paragraph 94(2) applies, 98 (facilities and rights for alternative apparatus) in so far as sub-paragraph (2) below applies, 99 (retained apparatus: protection of SGN), 100 (expenses) and 101 (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 SGN, the other provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and SGN are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

• (2) Paragraphs 97 and 98 of this Part of this Schedule apply to diversions even where carried out under the 1991 Act, in circumstances where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within existing adopted public highway.

Apparatus of SGN in stopped up streets

94

• (1) Without prejudice to the generality of any other protection afforded to SGN elsewhere in the Order, where any street is stopped up under article 15 (permanent stopping up of specified street and private means of access) if SGN has any apparatus in the street or accessed via that street SGN will be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to SGN, or will procure the granting to SGN of, legal easements reasonably satisfactory to SGN in respect of such apparatus and access to it prior to the stopping up of any such street or highway, but nothing in this paragraph affects any right of the undertaker or of SGN to require the removal of that apparatus under paragraph 97.

• (2) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), SGN will be at liberty at all times to take all necessary access across any such stopped up highway and/or to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

95

• (1) The undertaker, in the case of the powers conferred by article 23 (protective works to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of SGN and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of SGN or any interruption in the supply of gas by SGN, as the case may be, is caused, the undertaker must bear and pay on demand the cost reasonably incurred by SGN in making good such damage or restoring the supply; and, subject to sub-paragraph (2), shall—

• (a) pay compensation to SGN for any loss sustained by it; and

• (b) indemnify SGN against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by SGN, by reason of any such damage or interruption.

• (2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of SGN or its contractors or workmen; and SGN will give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made by SGN, save in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.

Acquisition of land

96

• (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 appropriate or acquire any land interest or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of SGN otherwise than by agreement.

• (2) The undertaker and SGN agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus/including but not limited to the payment of costs and expenses relating to such relocation and/or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by SGN and/or other enactments relied upon by SGN as of right or other use in relation to the apparatus, then the provisions in this Part of this Schedule prevail.

• (3) Any agreement or consent granted by SGN under paragraph 99 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

• (4) As a condition of an agreement between the parties in sub-paragraph (1) that involves decommissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement and/or other interest of SGN in such decommissioned apparatus and consequently acquire title to such decommissioned apparatus and release SGN from all liabilities in respect of such decommissioned apparatus from the date of such surrender.

• (5) Where an undertaker acquires land which is subject to any SGN right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 97 do not apply, the undertaker must—

• (a) retain any notice of SGN’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and

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

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

Removal of apparatus

97

• (1) If, in the exercise of the agreement reached in accordance with paragraph 91 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of SGN to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation to the reasonable satisfaction of SGN and in accordance with sub-paragraphs (2) to (5) inclusive.

• (2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to SGN advance 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 SGN reasonably needs to move or remove any of its apparatus) the undertaker must afford to SGN to its satisfaction (taking into account sub-paragraph 98(1) below) the necessary facilities and rights—

• (a) for the construction of alternative apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus);

• (b) subsequently for the maintenance of that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus); and

• (c) to allow access to that apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus).

• (3) If 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, SGN may, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for SGN to use its compulsory purchase powers to this end unless it (in its absolute discretion) elects to so do.

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

• (5) SGN must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to SGN of such facilities and rights as are referred to in sub-paragraph (2) or (3) have been afforded to SGN to its satisfaction, then proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to decommission or remove any apparatus required by the undertaker to be decommissioned or removed under the provisions of this Part of this Schedule.

Facilities and rights for alternative apparatus

98

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for SGN facilities and rights in land for the access to, construction and maintenance of alternative apparatus in substitution for apparatus to be decommissioned or removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and SGN and must be no less favourable on the whole to SGN than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by SGN.

• (2) If the facilities and rights to be afforded by the undertaker and agreed with SGN under sub-paragraph (1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to SGN than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed then the terms and conditions to which those facilities and rights are subject in the matter are referred to arbitration in accordance with paragraph 105 of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to SGN as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of SGN

99

• (1) Not less than 56 days before the commencement of any specified works, the undertaker must where reasonably required by SGN submit to SGN a plan and, a ground monitoring scheme in respect of those works.

• (2) In relation to works which will or may be situated on, over, under or within (a) ten metres measured in any direction of any apparatus, or (b) involve embankment works within ten metres of any apparatus, the plan to be submitted where reasonably required to SGN 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 etc.;

• (d) the position of all apparatus;

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

• (f) any intended maintenance regimes.

• (3) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until SGN has given written approval of the plan so submitted.

• (4) Any approval of SGN required under sub-paragraph (3)—

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

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

• (5) In relation to any work to which sub-paragraphs (1) and/or (2) apply, SGN may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (6) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraphs (1) and (2) or as relevant sub-paragraph (4), as approved or as amended from time to time by agreement between the undertaker and SGN and in accordance with all conditions imposed under sub-paragraph (4)(a), and SGN will be entitled to watch and inspect the execution of those works.

• (7) Where SGN 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 SGN’s satisfaction prior to the commencement of any authorised works (or any relevant part thereof) for which protective works are required and SGN must give 45 days’ notice of such works from the date of submission of a plan pursuant to this paragraph (except in an emergency).

• (8) If SGN, 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 91 to 93 and 96 to 98 apply as if the removal of the apparatus had been required by the undertaker under paragraph 97(2).

• (9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the authorised 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.

• (10) The undertaker is not 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 SGN notice as soon as is reasonably practicable and a plan of those works and must comply with—

• (a) the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances; and

• (b) sub-paragraph (11) at all times.

• (11) As soon as reasonably practicable after any ground subsidence event which is known to or may have affected apparatus attributable to the authorised development the undertaker must implement an appropriate ground mitigation scheme save that SGN retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 100.

Expenses

100

• (1) Subject to the following provisions of this paragraph, the undertaker must pay to SGN on demand all charges, costs and expenses reasonably anticipated or incurred by SGN in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or rights or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works as are referred to in this Part of this Schedule including without limitation—

• (a) any costs reasonably incurred by or compensation properly paid by SGN in connection with the negotiation or acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by SGN as a consequence of SGN—

• (i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 97(3) if it elects to do so; and/or

• (ii) exercising any compulsory purchase powers in the Order transferred to or benefitting SGN;

• (b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

• (c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

• (d) the approval of plans;

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

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

• (g) any watching brief pursuant to paragraph 99(6).

• (2) There is to 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 and which is not re-used as part of the alternative apparatus, that value being calculated after removal.

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

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

• (b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 49 (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 SGN by virtue of sub-paragraph (1) will be reduced by the amount of that excess save where it is not possible or appropriate in the circumstances (including due to statutory or regulatory changes) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

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

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

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

Indemnity

101

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) 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 the undertaker) 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 or alternative 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 SGN, or there is any interruption in any service provided, or in the supply of any goods, by SGN, or SGN becomes liable to pay any amount to any third party, the undertaker must—

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

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

• (2) The fact that any act or thing may have been done by SGN on behalf of the undertaker or in accordance with a plan approved by SGN or in accordance with any requirement of SGN or under its supervision including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless SGN 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 or as otherwise agreed between the undertaker and SGN.

• (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 SGN, its officers, servants, contractors or agents; and

• (b) any authorised works and/or any other works authorised by this Part of this Schedule carried out by SGN as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 (benefit of order granting development consent) of the Planning Act 2008 or article 10 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus (“new 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.

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

• (5) SGN must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies. If requested to do so by the undertaker, SGN must provide an explanation of how the claim has been minimised. The undertaker shall only be liable under this paragraph 101 for claims reasonably incurred by SGN.

Enactments and agreements

102

Save to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between SGN 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 SGN 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

103

• (1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or SGN requires the removal of apparatus under paragraph 97(2) or SGN makes requirements for the protection or alteration of apparatus under paragraph 99, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of SGN’s undertaking and SGN must use its best endeavours to co-operate with the undertaker for that purpose.

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

Access

104

If in consequence of the agreement reached in accordance with paragraph 96(1) or the powers granted under this Order the access to any apparatus (including appropriate working areas required to reasonably and safely undertake necessary works by SGN in respect of the apparatus) is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable SGN to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

105

Save for differences or disputes arising under paragraphs 97(2), 97(4), 98(1) and 99, any difference or dispute arising between the undertaker and SGN under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and SGN, be determined by arbitration in accordance with article 49 (arbitration).

Notices

106

The plans submitted to SGN by the undertaker pursuant to paragraph 99(1) must be sent to SGN at 1 Forbury Place, 43 Forbury Road, Reading, Berkshire RG1 3JH or such other address as SGN may from time to time appoint instead for that purpose and notify to the undertaker.

PART 8 — FOR THE PROTECTION OF REPL

107

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

108

In this Part of this Schedule—

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

• “apparatus” means any electric cables, electrical plant, drains, mains, sewers, pipes, conduits or any other apparatus belonging to or maintained by REPL and used for, or for purposes connected with, waste treatment and disposal and the generation, transmission, distribution or supply of electricity and/or heat generated at the REPL facility and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

• “authorised development” has the same meaning as in article 2 (interpretation) of this Order;

• “functions” includes powers and duties;

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

• “internal street” means any roads that service the REPL facility and which are located within the REPL facility perimeter;

• “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;

• “REPL facility” means the energy from waste facility and associated infrastructure known as Riverside 2 at Norman Road, Belvedere, Bexley, Kent;

• “REPL facility perimeter” means that part of the Order land identified as plots 1-048, 1-049, 1-051, 1-054, 1-055, 1-059, 1-060, 1-061, 1-064, 1-065, 1-066, 1-068, 1-070, 1-071, 1-075, 1-081, 1-082, 1-085, 1-088 and 1-115 on the land plans; and

• “REPL land” means that part of the Order land in the freehold ownership of REPL which, as at the date upon which this Order comes into force pursuant to article 1 (citation and commencement), are those plots identified as being in the freehold ownership of REPL in the book of reference.

109

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

110

The undertaker must ensure that REPL is at liberty at all times to, except in the case of where to do so would, in the undertaker’s discretion, lead to adverse safety impacts—

• (a) take all necessary access across any street used to access the REPL facility (including any internal street), including in cases where that street has been temporarily stopped up under article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way) or is subject to any traffic regulation measure pursuant to article 20 (traffic regulation measures); and

• (b) execute and do all such works and things in, upon or under any such street (including any internal street) used to access the REPL facility, including in cases where that street has been temporarily stopped up under article 16 (temporary prohibition or restriction of use of streets, private means of access and public rights of way and authorising vehicular use on public rights of way), or is subject any traffic regulation measure pursuant to article 20 (traffic regulation measures), as may be reasonably necessary or desirable to enable it to maintain any apparatus which is in that street (including any internal street) used to access the REPL facility.

111

• (1) If, in the exercise of the powers conferred by this Order, the undertaker—

• (a) acquires any interest in the REPL land in which any apparatus is placed or over which access to any apparatus is enjoyed; or

• (b) requires that REPL’s apparatus within the REPL land is relocated, diverted or removed, any right of REPL to any part of the REPL land and/or to maintain that apparatus in that land and to gain access to it must not be extinguished, and that apparatus must not be relocated, diverted or removed, until equivalent rights have been granted to REPL for alternative apparatus and equivalent alternative apparatus has vested in REPL and (in relation to apparatus) has been constructed and is in operation, and access to it has been provided. The location of equivalent alternative apparatus and rights for the equivalent alternative apparatus must in each case be agreed between the undertaker and REPL before any step is taken to extinguish, relocate, divert or remove as aforesaid.

• (2) If, for the purpose of executing any works in, on or under the REPL land, the undertaker requires the relocation, diversion or removal of any apparatus placed in the REPL land, the undertaker must give to REPL for approval written notice of that requirement, a plan and section of the work proposed and of the proposed position of the alternative apparatus together with a timetable for when the alternative apparatus is to be provided or constructed by the undertaker.

• (3) The approval of REPL under sub-paragraph (2) must not be unreasonably withheld or delayed and if by the end of the period of 28 days beginning with the date on which the notice, plan, section and timetable have been supplied to REPL, REPL has not intimated approval or disapproval of such notice, plan, section and timetable and the grounds of disapproval, REPL is deemed to have approved the said notice, plan, section and timetable as submitted.

• (4) When giving its approval under sub-paragraph (2), REPL may specify such reasonable requirements that are necessary in the provision or construction of the alternative apparatus.

• (5) In the event that REPL issues a disapproval to the notice, plan, section and timetable within the 28 day period referred to in sub-paragraph (3), the undertaker may refer the matter to arbitration in accordance with article 49 (arbitration).

• (6) Subject to sub-paragraph (8), any alternative apparatus to be provided or constructed pursuant to this paragraph must be provided or constructed by the undertaker within a timescale, to a standard and in such manner and in such line or situation as is agreed with REPL or in default of agreement settled by arbitration in accordance with article 49 (arbitration).

• (7) Where the alternative apparatus is to be provided or constructed on land of the undertaker and once the undertaker has provided or constructed the alternative apparatus, the undertaker must grant REPL the necessary rights to access and maintain the alternative apparatus on that land.

• (8) If in the approval to the notice, plan, section and timetable under sub-paragraph (2) or by the end of the period of 28 days beginning with the date on which the arbitrator settles the alternative apparatus to be provided or constructed, REPL gives notice to the undertaker that it desires to provide or construct the alternative apparatus and this is agreed to by the undertaker, (acting reasonably) REPL, after the grant to REPL of the rights as are referred to in sub-paragraph (9), must proceed without unnecessary delay to provide and 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.