The Outer Dowsing Offshore Wind Farm Order 2026

• (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

• (c) no part of any wind turbine generator shall be erected in the aviation corridor or the Malory WTG exclusion zone,

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

• (c) no part of any wind turbine generator shall be erected in the Galahad WTG exclusion zone,

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

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 licence and taking place within the areas subject to the licence.

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

• (c) unless otherwise agreed in writing by the undertaker and 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 2024⁹⁴;

• “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;

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

• (d) the position of all apparatus;

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

• (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; 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

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) 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 Spalding Energy, or there is any interruption in any service provided, or in the supply of any goods or energy, by Spalding Energy or Spalding Energy becomes liable to pay any amount to any third party, the undertaker will—

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

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

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

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

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

• (b) any authorised works and/or any other works authorised by this Part of this Schedule carried out by Spalding Energy as an assignee, transferee or lessee of the undertaker with the benefit of the Order pursuant to section 156 of the Planning Act 2008 or article 5 (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 3(b) will be subject to the full terms of this Part of this Schedule including this paragraph 10; and/or

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

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

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

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

• (7) Not to commence construction (and not to permit the commencement of such construction) of the authorised works on any land owned by Spalding Energy or in respect of which Spalding Energy has an easement or wayleave for its apparatus or any other interest or to carry out any works within 100 metres of Spalding Energy’s apparatus until the following conditions are satisfied—

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

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

• (8) In the event that the undertaker fails to comply with 10(7) of this Part of this Schedule, nothing in this Part of this Schedule prevents Spalding Energy from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.

Enactments and agreements

168

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

169

• (1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or Spalding Energy requires the removal of apparatus under paragraph 6(2) or Spalding Energy makes requirements for the protection or alteration of apparatus under paragraph 8, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of Spalding Energy’s undertaking and Spalding Energy must use its best endeavours to co-operate with the undertaker for that purpose.

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

Access

170

If in consequence of the agreement reached in accordance with paragraph 5(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable Spalding Energy to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

171

Save for differences or disputes arising under paragraph 6(2), 6(4), 7(1) and 8 any difference or dispute arising between the undertaker and Spalding Energy under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Spalding Energy, be determined by arbitration in accordance with article 38 (arbitration).

Notices

172

Notwithstanding article 46 (service of notices), any plans submitted to Spalding Energy by the undertaker pursuant to paragraph 8 must be submitted by courier service, first class post or by registered post to Spalding Energy Company, Ltd, West Marsh Road, Spalding, Lincolnshire, PE11 2BB and with a copy sent to edaniels@intergen.com and uknotices@intergen.com or such other address as Spalding Energy may from time to time appoint instead for that purpose and notify to the undertaker in writing.

SCHEDULE 19 — Arbitration Rules

Primary objective

1

• (1) The primary objective of these Arbitration Rules is to achieve a fair, impartial, final and binding award on the substantive difference between the parties (save as to costs) within 4 months from the date the Arbitrator is appointed pursuant to article 38 (arbitration) of the Order.

• (2) The Parties will first use their reasonable endeavours to settle a dispute amicably through negotiations undertaken in good faith by the senior management of the Parties. Any dispute which is not resolved amicably by the senior management of the Parties within twenty business days of the dispute arising, or such longer period as agreed in writing by the Parties, are to be subject to arbitration in accordance with the terms of this Schedule.

• (3) The Arbitration is deemed to have commenced when a party (“the Claimant”) serves a written notice of arbitration on the other party (“the Respondent”).

Time periods

2

• (1) All time periods in these Arbitration Rules will be measured in business days and this will exclude weekends, and bank holidays.

• (2) Time periods are calculated from the day after the Arbitrator is appointed which is either—

• (a) the date the Arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or

• (b) the date the Arbitrator is appointed by the Secretary of State.

Timetable

3

• (1) The timetable for the Arbitration is set out in sub–paragraphs (2) to (4) below unless amended in accordance with paragraph 5(3).

• (2) Within 15 days of the Arbitrator being appointed, the Claimant must provide both the Respondent and the Arbitrator with—

• (a) a written Statement of Claim which describes the nature of the difference between the parties, the legal and factual issues, the Claimant’s contentions as to those issues, the amount of its claim and/or the remedy it is seeking; and

• (b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.

• (3) Within 15 days of receipt of the Claimant’s statements under sub–paragraph (2) by the Arbitrator and Respondent, the Respondent must provide the Claimant and the Arbitrator with—

• (a) a written Statement of Defence responding to the Claimant’s Statement of Claim, its statement in respect of the nature of the difference, the legal and factual issues in the Claimant’s claim, its acceptance of any element(s) of the Claimant’s claim, its contentions as to those elements of the Claimant’s claim it does not accept;

• (b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports;

• (c) any objections it wishes to make to the Claimant’s statements, comments on the Claimant’s expert report(s) (if submitted by the Claimant) and explanations for the objections.

• (4) Within five days of the Respondent serving its statements under sub–paragraph (3), the Claimant may make a Statement of Reply by providing both the Respondent and the Arbitrator with—

• (a) a written statement responding to the Respondent’s submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;

• (b) all statements of evidence and copies of documents in response to the Respondent’s submissions;

• (c) any expert report in response to the Respondent’s submissions;

• (d) any objections to the statements of evidence, expert reports or other documents submitted by the Respondent;

• (e) its written submissions in response to the legal and factual issues involved.

Procedure

4

• (1) The seat, or place, of the arbitration must be London, England, the governing law must be the laws of England and Wales and the language of the arbitration proceedings must be English. The proceedings must be conducted in accordance with the Arbitration Act 1996⁹⁵, save where modified by these Rules.

• (2) The Arbitrator must make an award on the substantive difference(s) based solely on the written material submitted by the parties unless the Arbitrator decides that a hearing is necessary to explain or resolve any matters.

• (3) Either party may, within two days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required.

• (4) Within five days of receiving the last submission, the Arbitrator must notify the parties whether a hearing is to be held and the length of that hearing.

• (5) Within 10 days of the Arbitrator advising the parties that he is to hold a hearing, the date and venue for the hearing must be fixed by agreement with the parties, save that if there is no agreement the Arbitrator must direct a date and venue which he considers is fair and reasonable in all the circumstances. The date for the hearing must not be less than 35 days from the date of the Arbitrator’s direction confirming the date and venue of the hearing.

• (6) A decision must be made by the Arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the Arbitrator, then any expert(s) attending the hearing may be asked questions by the Arbitrator.

• (7) There is no process of examination and cross-examination of experts, but the Arbitrator must invite the parties to ask questions of the experts by way of clarification of any answers given by the expert(s) in response to the Arbitrator’s questions. Prior to the hearing the procedure for the expert(s) is—

• (a) at least 20 days before a hearing, the Arbitrator must provide a list of issues to be addressed by the expert(s);

• (b) if more than one expert is called, they are to jointly confer and produce a joint report or reports within 10 days of the issues being provided; and

• (c) the form and content of a joint report must be as directed by the Arbitrator and must be provided at least five days before the hearing.

• (8) Within 10 days of a Hearing or a decision by the Arbitrator that no hearing is to be held the Parties may by way of exchange provide the Arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The Arbitrator must take these submissions into account in the award.

• (9) The Arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within four months of the date on which they are appointed, unless both parties otherwise agree to an extension to the date for the award.

• (10) If a party fails to comply with the timetable, procedure or any other direction then the Arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before them attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure and/or direction.

• (11) The Arbitrator’s award must include reasons. The parties must accept that the extent to which reasons are given is to be proportionate to the issues in dispute and the time available to the Arbitrator to deliver the award.

Arbitrator’s powers

5

• (1) The Arbitrator has all the powers of the Arbitration Act 1996, including the non-mandatory sections, save where modified by these Rules.

• (2) There must be no discovery or disclosure, except that the Arbitrator has the power to order the parties to produce such documents as are reasonably requested by another party no later than the Statement of Reply, or by the Arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders are to be made by way of a Redfern Schedule without any hearing.

• (3) Any time limits fixed in accordance with this procedure or by the Arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the Arbitrator. In the absence of agreement, the Arbitrator may vary the timescales and/or procedure—

• (a) if the Arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice and then;

• (b) only for such a period that is necessary to achieve fairness between the parties.

• (4) On the date the award is made, the Arbitrator must notify the parties that the award is completed, signed and dated, and that it is to be issued to the parties on receipt of cleared funds for the Arbitrator’s fees and expenses.

Costs

6

• (1) The costs of the Arbitration must include the fees and expenses of the Arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the Arbitration.

• (2) Subject to sub-paragraph (3), the Arbitrator will award recoverable costs on the general principle that each party should bear its own costs.

• (3) The Arbitrator may depart from the general principle in sub-paragraph (2) and make such other costs award as it considers reasonable where a party has behaved unreasonably as defined within the National Planning Practice Guidance or such other guidance as may replace it.

Confidentiality

7

• (1) Subject to sub-paragraphs (2) and (3), any arbitration hearing and documentation must be open to and accessible by the public.

• (2) The Arbitrator may direct that the whole or part of a hearing is to be private and/or any documentation to be confidential where it is necessary in order to protect commercially sensitive information.

• (3) Nothing in this paragraph prevents any disclosure of a document by a party pursuant to an order of a court in England and Wales or where disclosure is required under any enactment.

Conservatory and Interim Measures

8

• (1) Unless the parties have otherwise agreed, after the arbitration has commenced, the Arbitrator may, at the request of either party, order any conservatory or interim measure it deems appropriate. Any conservatory or interim measure must be in the form of an order, giving reasons, or of an award, as the Arbitrator considers appropriate.

• (2) Unless the parties have otherwise agreed, either party may apply to the courts of England and Wales for conservatory or interim measures.

• (3) Such application by a party is not deemed to be an infringement or a waiver of the arbitration agreement, and does not affect the relevant powers reserved to the Arbitrator.

SCHEDULE 20 — Procedure for discharge of requirements

Applications made for certain approvals

1

• (1) Where an application has been made to a discharging authority for any consent, agreement or approval required or contemplated by any of the requirements within Part 3 of Schedule 1 (requirements) to this Order—

• (a) the undertaker must give the discharging authority sufficient information to identify the requirement(s) to which the application relates; and

• (b) the undertaker must provide such particulars, plans and drawings as are reasonably considered necessary to deal with the application.

• (2) The discharging authority must give notice to the undertaker of its decision on the application before the end of the decision period.

• (3) For the purposes of this paragraph, the decision period is—

• (a) where no further information is requested under paragraph 2 (further information), 10 weeks from the day immediately following that on which the application is received by the discharging authority;

• (b) where further information is requested under paragraph 2 (further information) 10 weeks from the day immediately following that on which the further information has been supplied by the undertaker under paragraph 2; or

• (c) such longer period as may be agreed by the undertaker and the discharging authority in writing before the end of the period in sub-paragraph (a) or (b).

Further information

2

• (1) In relation to any application to which this Schedule applies, the discharging authority has the right to request such further information from the undertaker as is reasonably necessary to enable it to consider the application.

• (2) If the discharging authority considers such further information to be necessary it must, as soon as reasonably practicable and within 28 days of receipt of the application notify the undertaker in writing specifying the further information required.

• (3) If the discharging authority does not give such notification as specified in sub-paragraph (2) it is to be deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.