76.—(1) In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the company in question to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means—
in the case of an electricity company, electric lines or electrical plant (as defined in the Electricity Act 1989(1)) belonging to or maintained by that company; and
in the case of a gas company, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of the conveyance of gas;
and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus; but the provisions of paragraphs 78 to 86 do not apply to apparatus in respect of which the relations between the undertaker and the companies are regulated by the provisions of Part III of the 1991 Act;
“company” means any of the following, namely, a public electricity supplier within the meaning of Part I of the Electricity Act 1989 and a gas transporter within the meaning of Part I of the Gas Act 1986(2); and, in relation to any apparatus, means the company to whom it belongs or by whom it is maintained;
“construction” includes execution, placing, alteration and reconstruction; and “construct” and “constructed” have corresponding meanings;
“functions” includes powers and duties;
“goods” includes electricity supplied by a public electricity supplier and gas conveyed by a gas transporter;
“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land; and
“plans” includes sections and method statements.
(2) The provisions of Schedule 11 to this Order shall not apply in relation to apparatus to which this Part of this Schedule applies.
77. Notwithstanding the temporary stopping up or diversion of any highway pursuant to article 8, a company shall be at liberty at all times to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain or use any apparatus which at the time of the stopping up or diversion was in that highway provided that this provision shall not apply where alternative apparatus has been installed to replace the apparatus in question and is in operation or the apparatus is otherwise redundant.
78. Notwithstanding anything in this Order or shown on the deposited plans the undertaker shall not acquire any apparatus or operational land belonging to a company otherwise than by agreement or consent of that company which shall not be unreasonably withheld or delayed but may be given subject to reasonable conditions.
79.—(1) If, in the exercise of the powers of this Order, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this Part of this Schedule, and any right of a company to maintain that apparatus in that land shall not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the company in question.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it shall give to the company in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers of this Order a company reasonably needs to remove any of its apparatus) the undertaker shall, subject to sub-paragraph (3), afford to the company the necessary facilities and rights (including for the avoidance of doubt legal easements satisfactory to the company) for the construction of alternative apparatus in other land of the undertaker and thereafter for the retention and maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, the company in question shall, on receipt of a written notice to that effect from the undertaker, forthwith use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) The obligations imposed by sub-paragraph (3) shall not extend to the exercise by the company of any power to acquire compulsorily any land or rights in land.
(5) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the company in question and the undertaker or in default of agreement settled by arbitration pursuant to article 54.
(6) The company in question shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 54, and after the grant to the company of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed with all reasonable dispatch to construct and bring into operation the alternative apparatus and thereafter to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.
(7) Notwithstanding anything in sub-paragraph (6), if the undertaker gives notice in writing to the company in question that it desires itself to execute any part of so much of the work necessary in connection with the construction of the alternative apparatus, or the removal of the apparatus required to be removed, as will take place in any land of the undertaker, that work may, with the prior written consent of the company (which shall not be unreasonably withheld and shall be subject to any such conditions as are reasonable and proper to protect the apparatus), in lieu of being executed by the company be executed by the undertaker with all reasonable despatch under the superintendence, if given, and to the reasonable satisfaction of the company.
(8) Nothing in sub-paragraph (7) shall authorise the undertaker to execute the actual placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 600 millimetres of the apparatus where the apparatus is operating or only capable of operating at below 7 bar pressure or within 1,500 millimetres of the apparatus where the apparatus is operating or capable of operating at or in excess of 7 bar pressure.
80.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a company facilities and rights for the construction, and maintenance, in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the undertaker and the company in question or in default of agreement settled by arbitration in accordance with article 54.
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along the tunnel crossing or adjacent to any other of the authorised works, the arbitrator shall—
(a)give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the tunnel crossing and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the undertaker or the traffic in the tunnel crossing; and
(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to any terms and conditions applicable to the apparatus for which the alternative apparatus is to be substituted.
(3) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the company in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator shall make such provision for the payment of compensation by the undertaker to that company as appears to him to be reasonable having regard to all the circumstances of the particular case.
81.—(1) Not less than 56 days before commencing the execution of any works of the type referred to in paragraph 79(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 79(2), the undertaker shall submit to the company in question a plan, section and description of the works to be executed.
(2) Those works shall be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the company for the alteration or otherwise for the protection of the apparatus, or for securing access thereto, and the company shall be entitled by its officer to watch and inspect the execution of those works.
(3) Any requirements made by a company under sub-paragraph (2) shall be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are received by it.
(4) If a company in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, the foregoing provisions of this Part of this Schedule shall apply as if the removal of the apparatus had been required by the undertaker under paragraph 79(2).
(5) Nothing in this paragraph shall preclude the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description in lieu of the plan, section and description previously submitted, and thereupon the provisions of this paragraph shall apply to and in respect of the new plan, section and description.
(6) The undertaker shall not be required to comply with sub-paragraph (1) in a case of emergency, but in that case it shall give to the company in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
82. Where, by reason of this Order, any part of any highway in which any apparatus is situated ceases to be part of a highway a company may exercise the same rights of access to such apparatus as it enjoyed immediately before the coming into force of this Order and the undertaker will grant to the company legal easements satisfactory to the company in respect of such apparatus and access thereto but nothing in this paragraph shall affect any right of the company or of the undertaker to require removal of such apparatus under this Part of this Schedule or the power of the undertaker to execute works in accordance with paragraph 81.
83.—(1) Subject to the following provisions of this paragraph, the undertaker shall repay to a company the reasonable expenses incurred by that company in, or in connection with the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 79(2).
(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in pursuance of the provisions of this Part of this Schedule—
(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration 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 paragraph would be payable to the company in question by virtue of sub-paragraph (1), shall be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a)an extension of apparatus to a length greater than the length of existing apparatus shall 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 cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall be treated as if it also had been agreed or had been so determined.
84.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works as are referred to in paragraph 79(2) any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a company or there is any interruption in any service provided or in the supply or conveyance of any goods by the company, the undertaker shall—
(a)bear and pay the cost reasonably incurred by that company in making good such damage or restoring the supply or conveyance; and
(b)indemnify the company against all claims, demands, proceedings, costs, damages and expenses which may be made against, or recovered from, or incurred by it,
by reason or in consequence of any such damage or interruption or exercise by the undertaker of its powers pursuant to this Order.
(2) Nothing in sub-paragraph (1) shall impose any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a company, its officers, servants, contractors or agents.
(3) A company shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made without the consent of the undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
85.—(1) Where, by reason of the stopping up of any highway pursuant to this Order, any apparatus belonging to a company and laid or placed in such highway or elsewhere is rendered derelict or unnecessary, the undertaker shall, subject to sub-paragraph (2), pay to the company the value of such apparatus (which shall then become the property of the undertaker) and the reasonable cost of and any costs incidental to the cutting off of such apparatus from any other apparatus, and of and incidental to the execution or doing of any works or things rendered necessary or expedient by reason of such apparatus being so rendered derelict or unnecessary.
(2) The undertaker shall not under the provisions of this paragraph be required to pay to a company the value of any apparatus rendered derelict or unnecessary if, to the reasonable satisfaction of the company, other apparatus has at the expense of the undertaker been provided and laid and made ready for use in substitution for the apparatus so rendered derelict or unnecessary.
86. Nothing in this Part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the undertaker and a company in respect of any apparatus laid or erected in land belonging to the undertaker on the coming into force of this Order.
1986 c. 44. as amended by the Utilities Act 2000 (c. 27), section 76.