Legalize / United Kingdom / Statutory-Instrument

The Outer Dowsing Offshore Wind Farm Order 2026

Type Statutory-Instrument

Publication 2026-02-10

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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

115

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

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated their disapproval of those plans and the grounds of such disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer shall be deemed to have approved the plans as submitted.

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

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

116

(1) Any specified work and any protective works to be constructed by virtue of paragraph 5(4) must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;

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

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

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

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

117

The undertaker must—

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

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

118

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

119

(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction or completion of a specified work or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker not less than 56 days’ notice (or in the event of an emergency or safety critical issue such notice as is reasonable in the circumstances) of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, notwithstanding any such approval of a specified work under paragraph 5(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

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

120

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

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 5(3) or in constructing any protective works under the provisions of paragraph 5(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

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

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

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

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

121

(1) In this paragraph—

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

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

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

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

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

(a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

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

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

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

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

(7) In the event of EMI having occurred—

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

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

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

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

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

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

(b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 6.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

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

(11) In relation to any dispute arising under this paragraph the reference in article 38 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Engineering and Technology.

122

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

123

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

124

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

125

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

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

(b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work;

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

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

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

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

(2) Network Rail must—

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

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

(c) take such steps as are within its control and are reasonable in the circumstances to mitigate any liabilities relating to such claims or demands and use reasonable endeavours to provide the Undertaker with any correspondence (subject to confidentiality requirements, laws and obligations) associated with mitigating liabilities.

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

(4) In no circumstances is the Undertaker liable to Network Rail under sub-paragraph (1) for any indirect or consequential loss or loss of profits, save that the sums payable by the Undertaker under that sub-paragraph include a sum equivalent to the relevant costs in circumstances where—

(a) Network Rail is liable to make payment of the relevant costs pursuant to the terms of an agreement between Network Rail and a train operator; and

(b) the existence of that agreement and the extent of Network Rail’s liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the Undertaker, but not otherwise.

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

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

(7) In this paragraph—

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

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

126

Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 15) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

127

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

128

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

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

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

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

129

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

130

The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 5 (benefit of the Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

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

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

131

The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 40 (certification of plans etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail.

132

In relation to any dispute arising under this part of this Part of this Schedule (except for those disputes referred to in paragraph 11) the provisions of article 38 (Arbitration) shall not apply and—

(a) any dispute or difference arising between the parties as to their respective rights, duties and obligations under these provisions or as to any matters arising out of it or in connection with the subject matters of these provisions must, in the first instance, be referred to a representative of Network Rail and a representative of the undertaker, each of whom holding a senior management position. Those representatives shall meet as soon as possible and shall endeavour in good faith to resolve any dispute or difference amicably.

(b) The representative of the undertaker shall be the relevant programme Director(s) and the representative of Network Rail shall be the Director, Route Asset Management or, in either case, such other person as may be notified to the other party from time to time.

(c) Any dispute or difference arising between the parties as to their respective rights, duties and obligations (other than a dispute as to land compensation which must be referred to the Upper Tribunal), which cannot be resolved as set out above is to be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) to the President of the Institution of Civil Engineers.

PART 11 — Protection for Perenco Gas (UK) Limited, Perenco North Sea Limited, Everard Energy Limited, Ithaca MA Limited, and RockRose (UKCS2) Limited

Application

133

The following provisions apply for the protection of the owner from time to time of the Excalibur Assets, the Galahad Assets, the Lancelot Assets, the Malory Assets, the Pickerill Assets and the Waveney Assets, unless otherwise agreed in writing between the undertaker and relevant owner.

Interpretation

134

In this Part of this Schedule—

“array area” means the area delineated red hatching and annotated and shown as the array area on the Perenco protective provisions plan;

“assets” means the Excalibur Assets, the Galahad Assets, the Lancelot Assets, the Malory Assets, the Pickerill Assets and the Waveney Assets;

“aviation corridor” means the 1400 metre wide corridor of clear airspace (measured tip to tip from one wind turbine generator to another) as shown delineated in grey and annotated and shown as the ‘aviation corridor’ on the Perenco protective provisions plan;

“block” means a block of the United Kingdom Continental Shelf designated as such on the map deposited at the principal office of the North Sea Transition Authority;

“co-existence and proximity agreement” means an agreement entered on reasonable terms between the undertaker and the owner in respect of the undertaker’s works and owner’s works to reconcile and protect the interests of the parties as are known at the time to secure the implementation of the undertaker’s works and the owner’s works;

“Excalibur Assets” means the facilities and infrastructure owned, operated, leased or otherwise contracted to the owner for the purposes of the Excalibur Licence or, following relinquishment of the Excalibur Licence, the facilities and infrastructure subject to a decommissioning programme related to the Excalibur Licence approved by OPRED, including the Excalibur platform annotated as the ‘Excalibur Platform’ on the Perenco protective provisions plan;

“Excalibur Licence” means United Kingdom Petroleum Production Licence P461 in respect of block 48/12c and United Kingdom Petroleum Production Licence P025 in respect of block 48/17a and 48/17b in relation to the Excalibur Assets;

“Excalibur to Lancelot communications line” means the communication line between the Excalibur Assets and the Lancelot Assets as shown coloured pink and annotated and shown as the ‘Excalibur to Lancelot communications line’ on the Perenco protective provisions plan;

“Galahad Assets” means the facilities and infrastructure owned, operated, leased or otherwise contracted to the owner for the purposes of the Galahad Licence or, following relinquishment of the Galahad Licence, the facilities and infrastructure subject to a decommissioning programme related to the Galahad Licence approved by OPRED, including the Galahad platform annotated as the ‘Galahad Platform’ on the Perenco protective provisions plan;

“Galahad Decommissioning Programme” means the decommissioning programme as approved by OPRED and as amended from time to time for the decommissioning of the Galahad Assets;

“Galahad Licence” means the now surrendered United Kingdom Petroleum Production Licence P142 in respect of blocks 48/12a (ALL) and 48/13b (Excluded Area Includes Galahad) in relation to the Galahad Assets;

“Galahad marine corridor” means a 1000 metre wide corridor (being 500 metres either side of the 12 inch diameter Galahad pipeline PL1166 (measured from the centre line of the pipeline)) as shown delineated in black and coloured red and annotated and shown as the ‘Galahad marine corridor’ on the Perenco protective provisions plan;

“Galahad Works” means the decommissioning of the Galahad Assets in accordance with the Galahad Decommissioning Programme, but excluding any post-decommissioning monitoring and evaluation;

“Galahad WTG exclusion zone” means an area of 1200 metre radius measured from the centre of the Galahad Assets production helideck and shown delineated in grey and coloured blue and annotated and shown as the ‘Galahad WTG exclusion zone’ on the Perenco protective provisions plan;

“Lancelot Assets” means the facilities and infrastructure owned, operated, leased or otherwise contracted to the owner for the purposes of the Lancelot Licence or, following relinquishment of the Lancelot Licence, the facilities and infrastructure subject to a decommissioning programme related to the Lancelot Licence approved by OPRED, including the Lancelot platform annotated as the ‘Lancelot Platform’ on the Perenco protective provisions plan;

“Lancelot Licence” means United Kingdom Petroleum Production Licence P25 in respect of blocks 48/17a (HDLA) and 48/18a (HDLA) and United Kingdom Petroleum Production Licence P463 in respect of block 48/17b (LANCE) in relation to the Lancelot Assets;

“Lancelot to Waveney communications line” means the communication line between the Lancelot Assets and the Waveney Assets as shown coloured light blue and annotated and shown as the ‘Lancelot to Waveney communications line’ on the Perenco protective provisions plan;

“licences” means the Excalibur Licence, the Galahad Licence, the Lancelot Licence, the Malory Licence, the Pickerill Licence and the Waveney Licence;

“licensee” means the licensee from time to time of the relevant licences;

“Malory Assets” means the facilities and infrastructure owned, operated, leased or otherwise contracted to the owner for the purposes of the Malory Licence or, following relinquishment of the Malory Licence, the facilities and infrastructure subject to a decommissioning programme related to the Malory Licence approved by OPRED, including the Malory platform annotated as the ‘Malory Platform’ on the Perenco protective provisions plan;

“Malory Licence” means United Kingdom Petroleum Production Licence P461 in respect of blocks 48/12f (REST) and 48/12c (REST) and United Kingdom Petroleum Production Licence P844 in respect of block 48/12d (F) in relation to the Malory Assets;

“Malory marine corridor” means a 1000 metre wide corridor as shown cross-hatched blue and annotated and shown as the ‘Malory marine corridor’ on the Perenco protective provisions plan;

“Malory to Excalibur communications corridor” means two overlapping cylindrical shaped corridors, each with a 142 metre radius cross section, centred on outermost corners of the platform forming part of the Malory Assets, and following the communication line between the Malory Assets and the Excalibur Assets (said communication line as shown coloured orange and annotated and shown as the ‘Malory to Excalibur communications line’ on the Perenco protective provisions plan) in the axial direction to the outermost corners of the platform forming part of the Excalibur Assets as shown shaded grey on the inset plan annotated as ‘the Malory to Excalibur communications corridor inset plan’ on the Perenco protective provisions plan, insofar as said communications corridor is within the array area;

“Malory Works” means the operation of the Malory Assets in accordance with the Malory Licence and the decommissioning of the Malory Assets in accordance with a decommissioning programme to be approved by OPRED and as amended from time to time, but excluding any post-decommissioning monitoring and evaluation;

“Malory WTG exclusion zone” means an area of 2500 metre radius measured from the centre of the Malory Assets production helideck and shown delineated grey and coloured green and annotated and shown as the ‘Malory WTG exclusion zone’ on the Perenco protective provisions plan;

“ministerial statement” means the written statement given by the Secretary of State for Energy and Climate Change to the UK Parliament regarding Crown Estate Leases for Offshore Renewables Projects on 12 July 2011, or any similar supplementary or replacement policy;

“owner” means the licensee until such time as the relevant licences are relinquished following cessation of production at the relevant assets, and thereafter the party responsible for decommissioning the relevant facilities and infrastructure in accordance with a decommissioning programme approved by OPRED until such time as the OPRED notice is issued;

“owner’s works” means the Galahad Works, the Malory Works and the Pickerill Works;

“OPRED” means the Offshore Petroleum Regulator for Environment and Decommissioning;

“OPRED notice” means a letter or notice from OPRED confirming the acceptance of the close-out report submitted by or on behalf of the relevant owner indicating that OPRED is satisfied that the permanent decommissioning of the Galahad Assets, the Malory Assets or the Pickerill Assets has been completed;

“Perenco protective provisions plan” means the plan entitled the Perenco protective provisions plan and certified as the Perenco protective provisions plan for the purposes of this Part of this Schedule;

“Pickerill Assets” means the facilities and infrastructure owned, operated, leased or otherwise contracted to the owner for the purposes of the Pickerill Licence or the facilities and infrastructure subject to the Pickerill Decommissioning Programme, including the Pickerill A platform annotated as the ‘Pickerill A Platform’ and the Pickerill B platform annotated as the ‘Pickerill B Platform’ on the Perenco protective provisions plan;

“Pickerill Decommissioning Programme” means the decommissioning programme as approved by OPRED and as amended from time to time for the decommissioning of the facilities and infrastructure related to the Pickerill Licence;

“Pickerill Licence” means the United Kingdom Petroleum Production Licence P37, Licence P460, Licence P461 and Licence P463 in respect of block 48/11A, block 48/11B, block 48/12c and block 48/17f in respect of the Pickerill Assets;

“Pickerill marine corridor” means a 1000 metre wide corridor (being 500 metres either side of the 16 inch diameter Pickerill pipeline PL816 and the 24 inch diameter Pickerill pipeline PL818 (measured from the centre line of each pipeline)), as shown cross-hatched black and annotated and shown as the ‘Pickerill marine corridor’ on the Perenco protective provisions plan;

“Pickerill Works” means the decommissioning of the Pickerill Assets in accordance with the Pickerill Decommissioning Programme, but excluding any post-decommissioning monitoring and evaluation;

“relevant activities” means all development activity relating to the carrying on of the undertaker’s works and owner’s works within, or adjacent to the aviation corridor, the communications corridor, the marine corridor or a WTG exclusion zone, including (but not limited to) the preparation of development proposals, the submission of applications for statutory consents associated with those proposals and consultation in respect thereof, the acquisition of or application for new licence oil or gas blocks;

“relevant marine corridor” means— the Galahad marine corridor in respect of Galahad Assets; the Malory marine corridor in respect of the Malory Assets; and the Pickerill marine corridor in respect of the Pickerill Assets;

“undertaker’s works” means the offshore works permitted by this Order;

“Waveney Assets” means the facilities and infrastructure owned, operated, leased or otherwise contracted to the owner for the purposes of the Waveney Licence or, following relinquishment of the Waveney Licence, the facilities and infrastructure subject to a decommissioning programme related to the Waveney Licence approved by OPRED, including the Waveney platform annotated as the ‘Waveney Platform’ on the Perenco protective provisions plan;

“Waveney Licence” means United Kingdom Petroleum Production Licence P780 in respect of block 48/17c (ALL) in respect of the Waveney Assets;

“West Sole A to Excalibur communications corridor” means two overlapping cylindrical shaped corridors, each with— a 25 metre radius cross section, centred on the outermost corners of the West Sole A platform (located in the area annotated and shown as the ‘West Sole A Platform’ on the Perenco protective provisions plan) and following the communication line between the West Sole A platform and the Excalibur Assets in (said communication line as shown coloured dark blue and annotated and shown as the ‘West Sole A to Excalibur communications line’ on the Perenco protective provisions plan) in the axial direction from the point 7 kilometres from the outermost corners of the platform forming part of the West Sole A platform to the point 7 kilometres from the outermost corners of the platform forming part of the Excalibur Assets, as shown shaded blue on the inset plan annotated as ‘the West Sole A to Excalibur communications corridor inset plan’ on the Perenco protective provisions plan; and a 85 metre radius cross section, centred on the outermost corners of the platform forming part of the Excalibur Assets, and following the communication line between the Excalibur Assets and the West Sole A platform (said communication line as shown coloured dark blue and annotated and shown as the ‘West Sole A to Excalibur communications line’ on the Perenco protective provisions plan) in the axial direction for 7 kilometres from the outermost corners of the platform forming part of the Excalibur Assets, as shown shaded grey on the inset plan annotated as ‘the West Sole A to Excalibur communications corridor inset plan’ on the Perenco protective provisions plan; insofar as said communications corridor is within the array area;

“West Sole A to Lancelot communications corridor” means two overlapping cylindrical shaped corridors, with a 19.5 metre radius cross section, centred on the outermost corners of the West Sole A platform (located in the area annotated and shown as the ‘West Sole A Platform on the Perenco protective provisions plan) and following the communications line between the West Sole A platform and the Lancelot Assets (said communication line as shown coloured green and annotated and shown as the ‘West Sole A to Lancelot communications line’ on the Perenco protective provisions plan) in the axial direction to the outermost corners of the platform forming part of the Lancelot Assets as shown shaded blue on the inset plan annotated as ‘the West Sole A to Lancelot communications corridor inset plan’ on the Perenco protective provisions plan, insofar as said communications corridor is within the array area;

“West Sole A to Malory communications corridor” means two overlapping cylindrical shaped corridors, with a 180 metre radius cross section, centred on the outermost corners of the West Sole A platform (located in the area annotated and shown as the ‘West Sole A Platform on the Perenco protective provisions plan) and following the communication line between the West Sole A platform and the Malory Assets (said communication line as shown coloured yellow and annotated and shown as the ‘West Sole A to Malory communications line’ on the Perenco protective provisions plan) in the axial direction to the outermost corners of the platform forming part of the Malory Assets, as shown shaded grey on the inset plan annotated as ‘the West Sole A to Malory communications corridor inset plan’ on the Perenco protective provisions plan, insofar as said communications corridor is within the array area;

“West Sole C to Malory communications corridor” means tow overlapping cylindrical shaped corridors, each with— with a 17 metre radius cross section, centred on the outermost corners of the West Sole C platform (located in the area annotated and shown as the ‘West Sole C Platform on the Perenco protective provisions plan) and following the communication line between the West Sole C platform and the Malory Assets (said communication line as shown coloured purple and annotated and shown as the ‘West Sole C to Malory communications line’ on the Perenco protective provisions plan) in the axial direction from the point 7 kilometres from the outermost corners of the West Sole C platform to the point 7 kilometres from the outermost corners of the platform forming part of the Malory Assets, as shown shaded blue on the inset plan annotated as ‘the West Sole C to Malory communications corridor inset plan’ on the Perenco protective provisions plan; and a 60 metre radius cross section, centred on the outermost corners of the platform forming part of the Malory Assets and following the communication line between the Malory Assets and the West Sole C platform (said communication line as shown coloured purple and annotated and shown as the ‘West Sole C to Malory communications line’ on the Perenco protective provisions plan)_in the axial direction for 7 kilometres from the outermost corners of the Malory platform as shown shaded grey on the inset plan annotated as ‘the West Sole C to Malory communications corridor inset plan’ on the Perenco protective provisions plan; insofar as said communications corridor is within the array area.

Restriction on authorised development

135

(1) Prior to the completion of the Malory works—

(a) no foundation (excluding scour protection) of any wind turbine generator, offshore accommodation platform or offshore transformer substation or any permanent ancillary works shall be erected in the Malory marine corridor;

(b) no cable protection shall exceed 5% of navigable depth referenced to Chart Datum in the Malory marine corridor, unless otherwise approved by the MMO under condition 13(1)(d)(ii)(bb) of the deemed marine licences set out in Schedule 10 (deemed marine licence under the 2009 Act – generation assets) and Schedule 11 (deemed marine licence under the 2009 Act – offshore transmission assets); and

unless otherwise agreed in writing between the owner and the undertaker.

(2) Prior to completion of the Galahad works—

(a) no foundation (excluding scour protection) of any wind turbine generator, offshore accommodation platform or offshore transformer substation or any permanent ancillary works shall be erected in the Galahad marine corridor;

(b) no cable protection shall exceed 5% of navigable depth referenced to Chart Datum in the Galahad marine corridor, unless otherwise approved by the MMO under condition 13(1)(d)(ii)(bb) of the deemed marine licences set out in Schedule 10 (deemed marine licence under the 2009 Act – generation assets) and Schedule 11 (deemed marine licence under the 2009 Act – offshore transmission assets); and

unless otherwise agreed in writing between the owner and the undertaker.

(3) Prior to completion of the Pickerill works—

(a) no foundation (excluding scour protection) of any wind turbine generator, offshore accommodation platform or offshore transformer substation or any permanent ancillary works shall be erected in the Pickerill marine corridor; and

(b) no cable protection shall exceed 5% of navigable depth referenced to Chart Datum in the Pickerill marine corridor, unless otherwise approved by the MMO under condition 13(1)(d)(ii)(bb) of the deemed marine licences set out in Schedule 10 (deemed marine licence under the 2009 Act – generation assets) and Schedule 11 (deemed marine licence under the 2009 Act – offshore transmission assets),

unless otherwise agreed in writing between the owner and the undertaker.

(4) Until such time as the transmitter or receiver of microwave links forming part of the communications systems permanently ceases to transmit or receive microwave links within the West Sole C to Malory communications corridor—

(a) no tower forming part of any wind turbine generator shall be erected in the West Sole C to Malory communications corridor, unless otherwise agreed in writing between the owner and the undertaker; and

(b) no blades forming part of any wind turbine generator shall be erected in the in the West Sole C to Malory communications corridor until the owner has approved the details to be submitted under paragraph 4.

(5) Until such time as the transmitter or receiver of microwave links forming part of the communications systems permanently ceases to transmit or receive microwave links within the West Sole A to Lancelot communications line, and the Lancelot to Waveney communications line—

(a) no tower forming part of any wind turbine generator shall be erected in the West Sole A to Lancelot communications corridor, unless otherwise agreed in writing between the owner and the undertaker; and

(b) no blades forming part of any wind turbine generator shall be erected in the in the West Sole A to Lancelot communications corridor until the owner has approved the details to be submitted under paragraph 4.

(6) Until such time as the transmitter or receiver of microwave links forming part of the communications systems permanently ceases to transmit or receive microwave links within the West Sole A to Excalibur communications corridor and the Excalibur to Lancelot communications line—

(a) no tower forming part of any wind turbine generator shall be erected in the West Sole A to Excalibur communications corridor, unless otherwise agreed in writing between the owner and the undertaker; and

(b) no blades forming part of any wind turbine generator shall be erected in the in the West Sole A to Excalibur communications corridor until the owner has approved the details to be submitted under paragraph 4.

(7) Until such time as the transmitter or receiver of microwave links forming part of the communications systems permanently ceases to transmit or receive microwave links within the West Sole A to Malory communications corridor—

(a) no tower forming part of any wind turbine generator shall be erected in the West Sole A to Malory communications corridor, unless otherwise agreed in writing between the owner and the undertaker; and

(b) no blades forming part of any wind turbine generator shall be erected in the in the West Sole A to Malory communications corridor until the owner has approved the details to be submitted under paragraph 4.

(8) Until such time as the transmitter or receiver of microwave links forming part of the communications systems permanently ceases to transmit or receive microwave links within the Malory to Excalibur communications corridor—

(a) no tower forming part of any wind turbine generator shall be erected in the Malory to Excalibur communications corridor, unless otherwise agreed in writing between the owner and the undertaker; and

(b) no blades forming part of any wind turbine generator shall be erected in the in the Malory to Excalibur communications corridor until the owner has approved the details to be submitted under paragraph 4.

(9) Until such time as the transmitter or receiver of microwave links forming part of the communications systems permanently ceases to transmit or receive microwave links within the West Sole C to Malory communications corridor, the West Sole A to Lancelot communications corridor, the West Sole A to Excalibur communications corridor, the West Sole A to Malory communications corridor or the Malory to Excalibur communications corridor, if any blades forming part of any wind turbine generator prevents the transmission and reception of microwave links within the relevant communication corridor to substantially the same level of performance, reliability and redundancy as existed before the erection of such blades forming part of any wind turbine generator—

(a) the owner shall notify the undertaker of such interference and provide the undertaker with evidence demonstrating that the transmission and reception of microwave links within the relevant communication corridor is not operating at substantially the same level of performance, reliability and redundancy as existed before the erection of such blades forming part of any wind turbine generator;

(b) the undertaker shall procure as soon as is reasonably practicable that such blades will be locked in a position that they do not have any part within the relevant communications corridor until such interference is remediated to the reasonable satisfaction of the owner, provided that, without prejudice to paragraph 3(9)(c), the owner shall, as soon as reasonably practicable upon discovering such interference, use reasonable endeavours to explore opportunities to maintain the transmission and reception between the relevant platforms of microwave links with a substantially similar level of performance, reliability and redundancy to the microwave link affected by temporarily utilising another available and existing communications line and, after identifying and successfully testing such option, the owner shall notify the undertaker that such blades do not require to be locked in a position that they do not have any part within the relevant communications corridor; and

(c) the owner and undertaker shall seek to agree and implement, at the undertaker’s cost, a technical solution to ensure substantially the same level of performance, reliability and redundancy of transmission and reception of microwave links between the relevant platforms as existed before the erection of such blades forming part of any wind turbine generator, which may include the use of another available communications line permanently.

Submission and approval of plans

136

(1) Before erecting any blades forming part of any wind turbine generator in the West Sole C to Malory communications corridor, the West Sole A to Lancelot communications corridor, the West Sole A to Excalibur communications corridor, the West Sole A to Malory communications corridor or the Malory to Excalibur communications corridor, the undertaker must submit to the owner a report which demonstrates to the reasonable satisfaction of the owner that the relevant communications corridor will continue to transmit and receive microwave links to substantially the same level of performance and reliability as existed before the erection of such blades forming part of any wind turbine generator and such further particulars available to it as the owner may within 14 days of the receipt of the report reasonably request.

(2) Any approval of the owner required under this paragraph—

(a) must not be unreasonably withheld or delayed;

(b) shall be deemed to be given if it is—

(i) neither given nor refused; or

(ii) refused without an indication of the grounds for refusal,

within 60 days of the submission of the report submitted under sub-paragraph (1) or where further particulars are submitted under sub-paragraph (1), within 60 days of the submission of those further particulars; and

(c) may be given subject to such reasonable requirements or conditions as the owner may have for ensuring that the relevant communications corridor will continue to transmit and receive microwave links to substantially the same level of performance and reliability as existed before the erection of such blades forming part of any wind turbine generator.

(3) The owner must not withhold approval required under this paragraph except on the ground that the erection of any blades forming part of any wind turbine generator would prevent the transmission and receipt of microwave links in the relevant communications corridor to substantially the same level of performance and reliability as existed before the erection of such blades forming part of any wind turbine generator.

(4) Any refusal under this paragraph must be accompanied by a statement of the grounds of refusal.

Co-existence and proximity agreement

137

(1) If, at any time the undertaker plans to undertake the undertaker’s works or any other work which is in the Malory marine corridor, the Galahad marine corridor or the Pickerill marine corridor, or is within 500m of the Galahad Assets, the Malory Assets, or the Pickerill Assets, the undertaker shall notify the owner and the undertaker and the owner must, unless agreed otherwise, acting reasonably, agree and enter into a co-existence and proximity agreement as soon as reasonably practicable.

(2) the undertaker’s works in the locations set out in sub-paragraph (1) must not commence prior to the co-existence and proximity agreement being entered into between the parties, unless it has been agreed by the parties under sub-paragraph (1) that no co-existence and proximity agreement is required.

Provision of information

138

Without prejudice to any other rights or obligations under this Part of this Schedule the owner and the undertaker shall from time to time keep each other informed of relevant activities such that the owner and the undertaker may seek to agree solutions to allow those activities to successfully co-exist as far as reasonably practicable until completion of activities required under any statutory decommissioning plan required under the Petroleum Act 1998 in relation to the assets.

Arbitration

139

Any difference arising between the undertaker and the owner under this Part shall be referred to and settled by arbitration under article 38 (arbitration).

PART 12 — Protection for Shell U.K. Limited and Esso Exploration and Production UK Limited

Application

140

The following provisions apply for the protection of the owner from time to time of The Barque Assets, unless otherwise agreed in writing between the undertaker and the owner.

Interpretation

141

In this Part of this Schedule—

“block” means a block of the United Kingdom Continental Shelf designated as such on the map deposited at the principal office of the North Sea Transition Authority;

“Barque Assets” means the facilities and infrastructure owned, operated, leased or otherwise contracted to the owner for the purposes of the licence or, following relinquishment of the licence, the facilities and infrastructure subject to a decommissioning programme related to the licence approved by OPRED, annotated as the ‘Barque Assets’ on the Shell protective provisions plan;

“coexistence and proximity agreement” means an agreement entered on reasonable terms between the undertaker and the owner in respect of the undertaker’s works and licensee’s works to reconcile and protect the interests of the parties as are known at the time to secure the implementation of the undertaker’s works and the licensee’s works;

“licence” means United Kingdom Petroleum Production Licence P8 in respect of blocks 48/13a and 48/14a in relation to the Barque Assets;

“licensee” means the licensee from time to time of the licences;

“licensee’s works” means the operation of the Barque Assets in accordance with the licence and the decommissioning of the Barque Assets in accordance with a decommissioning programme to be approved by OPRED and as amended from time to time, but excluding any post-decommissioning monitoring and evaluation;

“ministerial statement” means the written statement given by the Secretary of State for Energy and Climate Change to the UK Parliament regarding Crown Estate Leases for Offshore Renewables Projects on 12 July 2011, or any similar supplementary or replacement policy;

“OPRED” means the Offshore Petroleum Regulator for Environment and Decommissioning;

“OPRED notice” means a letter or notice from OPRED confirming the acceptance of the close-out report submitted by or on behalf of the licensee indicating that OPRED is satisfied that the permanent decommissioning of the Barque Assets has been completed;

“owner” means the licensee until such time as the licence is relinquished following cessation of production at the Barque Assets, and thereafter the party responsible for decommissioning the relevant assets in accordance with a decommissioning programme approved by OPRED until such time as the OPRED notice is issued;

“relevant activities” means all development activity relating to the carrying on of the undertaker’s works and licensee’s works within, or adjacent to the WTG exclusion zone, including (but not limited to) the preparation of development proposals, the submission of applications for statutory consents associated with those proposals and consultation in respect thereof, the acquisition of or application for new licence oil or gas blocks;

“Shell protective provisions plan” means the plan entitled the Shell protective provisions plan and certified as the Shell protective provisions plan for the purposes of this Part of this Schedule;

“undertaker’s works” means the offshore works permitted by this Order;

“WTG exclusion zone” means an area of 2,500 metre radius measured from the centre of the Barque Assets production helideck and shown coloured green and annotated and shown as the ‘WTG exclusion zone’ on the Shell protective provisions plan.

Restriction on authorised development

142

Prior to the completion of the licensee’s works, no part of any wind turbine generator shall be erected in the WTG exclusion zone unless otherwise agreed in writing between the licensee and the undertaker.

Coexistence and proximity agreement

143

If, at any time the undertaker plans to undertake the undertaker’s works or any other work which is within 500m of the Barque Assets, the undertaker shall notify the owner and the undertaker and the owner must, unless agreed otherwise, acting reasonably, agree and enter into a co-existence and proximity agreement as soon as reasonably practicable.

Provision of information

144

Arbitration

145

Any difference arising between the undertaker the owner under this Part shall be referred to and settled by arbitration under article 38 (arbitration).

PART 13 — Protection for Lincs Wind Farm Limited

Application

146

The Following provisions shall apply for the protection of Lincs unless otherwise agreed in writing between the undertaker and Lincs.

Interpretation

147

In this Part of this Schedule—

“Lincs” means Lincs Wind Farm Limited, a company registered in Scotland with company number SC213646 and having its registered office at 13 Queens Road, Aberdeen, Scotland, AB15 4YL and any successor with the benefit of the rights to operate the Lincs Offshore Wind Farm;

“Lincs Offshore Wind Farm” means the 270 megawatts wind farm located 8 kilometres off the east coast of England, near Skegness in Lincolnshire;

“Lincs Control Area” means an area, or areas, within the boundaries of Work Nos. 5, 7 and 8 described in Part 1 of Schedule 1 to the Order or any part of that work and which is within a fixed distance extending outwards from the boundary for the Lincs Offshore Windfarm as described on plans prepared by the undertaker;

“Lincs Proximity Agreement” means an agreement setting out the technical and commercial terms governing the interaction between any works authorised by this Order forming part of the Lincs Control Area and the Lincs Offshore Wind Farm; and

“plans” includes designs, drawings, timing schedules, procedures and risk assessments.

Control of works within the Lincs control area

148

Works within Work Nos. 5, 7 and 8 must not be commenced until—

(a) plans of the Lincs Control Area have been submitted to and approved by the Secretary of State; and

(b) the undertaker has entered into the Lincs Proximity Agreement with Lincs

Arbitration

149

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

PART 14 — Protection for Race Bank Wind Farm Limited

Application

150

The Following provisions shall apply for the protection of Race Bank unless otherwise agreed in writing between the undertaker and Race Bank.

Interpretation

151

In this Part of this Schedule—

“Race Bank” means Race Bank Wind Farm Limited, a company registered in England and Wales with company number 05017828 and having its registered office at 5 Howick Place, London, England, SW1P 1WG and any successor with the benefit of the rights to operate the Race Bank Offshore Wind Farm;

“Race Bank Offshore Wind Farm” means the 573 megawatts wind farm located approximately 27 kilometres off the east coast of England, near Chapel St Leonards in Lincolnshire;

“Race Bank Control Area” means an area, or areas, within the boundaries of Work Nos. 5, 7 and 8 described in Part 1 of Schedule 1 to the Order or any part of that work and which is within a fixed distance extending outwards from the boundary for the Race Bank Offshore Windfarm as described on plans prepared by the undertaker;

“Race Bank Proximity Agreement” means an agreement setting out the technical and commercial terms governing the interaction between any works authorised by this Order forming part of the Race Bank Control Area and the Race Bank Offshore Wind Farm; and

“plans” includes designs, drawings, timing schedules, procedures and risk assessments.

Control of works within the Race Bank control area

152

Works within Work Nos. 5, 7 and 8 must not be commenced until—

(a) Plans of the Race Bank Control Area have been submitted to and approved by the Secretary of State; and

(b) The undertaker has entered into the Race Bank Proximity Agreement with Race Bank,

unless otherwise agreed in writing between the undertaker and Race Bank.

Arbitration

153

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

PART 15 — Protection for Dudgeon Extension Limited

Application

154

The following provisions shall apply for the protection of DEL unless otherwise agreed in writing between the undertaker and DEL.

Interpretation

155

In this Part of this Schedule—

“Dudgeon Extension Project” means the Dudgeon Offshore Wind Farm Extension Project to be located 26.5km north of the Norfolk Coast;

“DEL” means Dudgeon Extension Limited, a company registered in England and Wales with company number 12148301 and having its registered office at 1 Kingdom Street, London W2 6BD and any successor with the benefit of the rights in relation to the Dudgeon Extension Project under the Sheringham Shoal and Dudgeon Extensions Offshore Wind Farm Order 2024[^f00094];

“DEP Control Area” means an area, or areas, within the boundaries of Work Nos. 5, 7 and 8 described in Part 1 of Schedule 1 to the Order or any part of that work and which is within a fixed distance extending outwards from the boundary for the Dudgeon Extension Project as described on plans prepared by the undertaker;

“DEP Proximity Agreement” means an agreement setting out the technical and commercial terms governing the interaction between any works authorised by this Order forming part of the DEP Control Area and the Dudgeon Extension Project; and

“plans” includes designs, drawings, timing schedules, procedures and risk assessments.

Control of works within the DEP control area

156

Works within Work Nos. 5, 7 and 8 must not be commenced until—

(a) Plans of the DEP Control Area have been submitted to and approved by the Secretary of State; and

(b) The undertaker has entered into the DEP Proximity Agreement with DEL,

unless otherwise agreed in writing by the undertaker and DEL.

Arbitration

157

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

PART 16 — Protection for Spalding Energy Company Limited and Spalding Energy Expansion Limited

Application

158

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

(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and Spalding Energy, where the benefit of this Order is transferred or granted to another person under article 5 (benefit of the Order)—

(a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between Spalding Energy and the transferee or grantee (as the case may be) in all cases where the transfer of the benefit relates to any specified works; and

(b) written notice of the transfer or grant must be given to Spalding Energy on or before the date of that transfer or grant.

(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to Spalding Energy (but without prejudice to paragraph10(3)(b)).

159

In this Part of this Schedule—

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

“acceptable insurance” means general third party liability insurance effected and maintained by the undertaker with a combined property damage and bodily injury limit of indemnity of not less than £50,000,000.00 (fifty million pounds) per occurrence or series of occurrences arising out of one event. Such insurance must be maintained (a) during the construction period of the authorised works; and (b) after the construction period of the authorised works in respect of any use and maintenance of the authorised development by or on behalf of the undertaker which constitute specified works and arranged with an insurer whose security/credit rating meets the same requirements as an “acceptable credit provider”, such insurance must include (without limitation): a waiver of subrogation and an indemnity to principal clause in favour of Spalding Energy; pollution liability for third party property damage and third party bodily damage arising from any pollution/contamination event with a (sub)limit of indemnity of not less than £10,000,000.00 (ten million pounds) per occurrence or series of occurrences arising out of one event or £20,000,000.00 (twenty million pounds) in aggregate;

“acceptable security” means either— a parent company guarantee from a parent company in favour of Spalding Energy to cover the undertaker’s liability to Spalding Energy to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to Spalding Energy and where required by Spalding Energy, accompanied with a legal opinion confirming the due capacity and authorisation of the parent company to enter into and be bound by the terms of such guarantee); or a bank bond or letter of credit from an acceptable credit provider in favour of Spalding Energy to cover the undertaker’s liability to Spalding Energy for an amount of not less than £10,000,000.00 (ten million pounds) per asset per event up to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to Spalding Energy);

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

“apparatus” means any mains, pipes or other apparatus belonging to or maintained by Spalding Energy for the purposes of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of Spalding Energy 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(1) of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised works and construction of any works authorised by this Schedule;

“commence” and “commencement” in this Part of this Schedule include any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

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

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by Spalding Energy (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 Spalding Energy’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” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of Spalding Energy: construct, use, repair, alter, inspect, renew 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 and which has been approved by Spalding Energy acting reasonably;

“Spalding Energy” means either Spalding Energy Company, Ltd, (company number: FC019668) whose registered office is at Maples and Calder, Attorneys-At-Law, Ugland House, PO BOX 309, George Town, Cayman Islands, B.W Indies, acting through its UK branch Spalding Energy Company, Ltd with its UK establishment office address at Spalding Power Station, West Marsh Road, Spalding, PE11 2BB (branch number: BR003663) or Spalding Energy Expansion Ltd a company incorporated in England and Wales (registered number: 06790895) whose registered office is at 30 Crown Place, Earl Street, London, United Kingdom, EC2A 4ES, or any successor being the party who owns or maintains the relevant apparatus;

“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 100 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 6(2) or otherwise; and

“undertaker” means the undertaker as defined in article 2(1) of this Order.

On Street Apparatus

160

Except for paragraphs 4 (apparatus of Spalding Energy in closed streets), 8 (retained apparatus: protection), 9 (expenses) and 10 (indemnity) 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 Spalding Energy, the other provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and Spalding Energy are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of Spalding Energy in closed streets

161

Notwithstanding the temporary closure or diversion of any streets under the powers of article 10 (temporary closure of public rights of way) or article 11 (temporary closure of streets), Spalding Energy is at liberty at all times to take all necessary access across any such closed street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure or diversion was in that street.

Acquisition of land

162

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

(a) appropriate or acquire or take temporary possession of any land or apparatus of Spalding Energy; or

(b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of Spalding Energy,

otherwise than by agreement.

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

(3) Save where otherwise agreed in writing between Spalding Energy and the undertaker, the undertaker and Spalding Energy 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 Spalding Energy and/or other enactments relied upon by Spalding Energy as of right or other use in relation to the apparatus, then the provisions in this Schedule prevails.

(4) Any agreement or consent granted by Spalding Energy under paragraph 8 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

163

(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of Spalding Energy 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 Spalding Energy in accordance with sub-paragraph (2) to (5).

(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 Spalding Energy advance 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 Spalding Energy reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), secure any necessary consents for the alternative apparatus and afford to Spalding Energy to its satisfaction (taking into account paragraph 7(1) below) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and

(b) 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 or land secured by 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, Spalding Energy may in its sole discretion, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances to assist the undertaker 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 Spalding Energy to use its compulsory purchase powers to this end unless it 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 Spalding Energy and the undertaker.

(5) Spalding Energy must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to Spalding Energy 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.

Facilities and rights for alternative apparatus

164

(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for Spalding Energy facilities and rights in land for the construction, use, maintenance and protection 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 Spalding Energy and must be no less favourable on the whole to Spalding Energy than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by Spalding Energy.

(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 less favourable on the whole to Spalding Energy 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 matter may be referred to arbitration in accordance with paragraph 14 (Arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to Spalding Energy as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection

165

(1) Not less than 112 days before the commencement of any specified works the undertaker must submit to Spalding Energy a plan and, if reasonably required by Spalding Energy, a ground monitoring scheme in respect of those works.

(2) The plan to be submitted to Spalding Energy under sub-paragraph (1) must include a method statement and describe—

(a) the exact position of the specified works;

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

(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 consider the existing pipeline’s cathodic protection system and provide an earthing assessment where required by Spalding Energy.

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

(5) Any approval of Spalding Energy required under sub-paragraph (4)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (7) which reasonable conditions could be satisfied by the entering into a crossing agreement, proximity agreement or an interface agreement if the parties agree it is appropriate and necessary to do so acting reasonably and without undue delay as to the need for and terms of such agreement; and,

(b) must not be unreasonably withheld.

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

(7) Works executed under sub-paragraphs (1) or (2) must be executed in accordance with the plan submitted under sub-paragraph (1) or as relevant sub paragraph (6), as approved or as amended from time to time by agreement between the undertaker and Spalding Energy and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by Spalding Energy for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Spalding Energy as will be entitled to watch and inspect the execution of those works.

(8) Where Spalding Energy 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 Spalding Energy’s satisfaction prior to the commencement of any specified works for which protective works are required and Spalding Energy must give notice of its requirement for such works within 84 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(9) If Spalding Energy in accordance with sub-paragraphs (6) or (8) 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, sub-paragraphs (1) to (3) and (6) to (8) apply as if the removal of the apparatus had been required by the undertaker under paragraph 6(2).

(10) 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, unless otherwise agreed by the undertaker and Spalding Energy in writing, before commencing the execution of the specified works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to Spalding Energy notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances and comply with sub paragraph (12) at all times;

(12) At all times when carrying out any works authorised under the Order Spalding Energy must comply with HSE’s “HS(~G)47 Avoidance of Danger from underground services”.

(13) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker must implement an appropriate ground mitigation scheme save that Spalding Energy 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 9.

Expenses

166

(1) Save where otherwise agreed in writing between Spalding Energy and the undertaker and subject to the following provisions of this paragraph, the undertaker must pay to Spalding Energy within 30 days of receipt of an invoice or claim from Spalding Energy all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by Spalding Energy in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—

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

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 6(3); or

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

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(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; and

(g) time reasonably spent by internal management and staff of Spalding Energy on the matters contained within this paragraph 9(1).

(2) 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 paragraph 14 (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 Spalding Energy by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances 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.

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

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

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

Indemnity

167

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