The East Anglia ONE Offshore Wind Farm Order 2014

PART 5 For the protection of National Grid Gas plc and National Grid Electricity Transmission plc

Application

1.  For the protection of the statutory undertakers referred to in this part of this Schedule the following provisions shall, unless otherwise agreed in writing between the undertakers and the statutory undertakers concerned, have effect.

Interpretation

2.  In this Part of this Schedule—

“1991 Act” means the New Roads and Street Works Act 1991;

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

“apparatus” means—

(a)

in the case of an electricity undertakers, electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by that undertakers;

(b)

in the case of a gas undertakers, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;

“commence” has the same meaning as article 2 of this Order;

“functions” includes powers and duties;

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

“maintain” and “maintenance” shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of the statutory undertakers including 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 the works to be executed;

“statutory undertakers” means—

(a)

any licence holder within the meaning of Part 1 of the Electricity Act 1989; and

(b)

a gas transporter within the meaning of Part 1 of the Gas Act 1986;

(c)

for the area of the authorised development, and in relation to any apparatus, means the statutory undertakers to whom it belongs or by whom it is maintained;

“undertakers” means the undertakers as defined in article 2 of this Order.

Apparatus of undertakers in stopped up streets

3.  Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 10 (temporary stopping up of streets), a statutory undertakers shall be at liberty at all times to take all necessary access across any such stopped up highway and/or to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway subject always to the undertaking of works by the undertakers authorised by this Order.

Acquisition of land

4.  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 undertakers shall not acquire any interest in land or any apparatus or override any easement or other interest of the statutory undertakers otherwise than by agreement, such agreement not to be unreasonably withheld or delayed.

Removal of apparatus

5.—(1) If, in the exercise of the agreement reached in accordance with paragraph 4 or in any other authorised manner, the undertakers 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 statutory undertakers 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 statutory undertakers in question in accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertakers requires the removal of any apparatus placed in that land, it shall give to the statutory undertakers in question 56 days’ 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 a statutory undertakers reasonably needs to remove any of its apparatus) the undertakers shall, subject to sub-paragraph (3), afford to the statutory undertakers to their reasonable satisfaction (taking into account paragraph 6(1)) the necessary facilities and rights for—

(a) the construction of alternative apparatus in other land of the undertakers; 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 the undertakers, or the undertakers 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 statutory undertakers in question shall, on receipt of a written notice to that effect from the undertakers, as soon as reasonably possible take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed except that this obligation shall not extend to the requirement for the statutory undertakers 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 the undertakers under this part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the statutory undertakers in question and the undertakers.

(5) The statutory undertakers in question shall, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to the statutory undertakers 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 undertakers to be removed under the provisions of this part of this Schedule.

Facilities and rights for alternative apparatus

6.—(1) Where, in accordance with the provisions of this part of this Schedule, the undertakers affords to a statutory undertakers facilities and rights for the construction and maintenance in land of the undertakers 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 undertakers and the statutory undertakers in question and shall be no less favourable on the whole to the statutory undertakers in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless agreed by the statutory undertakers.

(2) If the facilities and rights to be afforded by the undertakers and agreed with the statutory undertakers under paragraph 7(1) 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 statutory undertakers 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 undertakers to that statutory undertakers as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection: gas undertakers

7.—(1) Not less than 56 days before commencing the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertakers under paragraph 5(2) or otherwise, the undertakers shall submit to the statutory undertakers in question a plan.

(2) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus, the plan to be submitted to the statutory undertakers under sub-paragraph (1) shall be detailed including a material statement and describing—

(a) the exact position of the works;

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

(c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;

(d) the position of all apparatus; and

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

(3) The undertakers shall not commence the construction or renewal of any works to which sub-paragraph (1) or (2) applies until the statutory undertakers has given written approval of the plan so submitted.

(4) Any approval of the statutory undertakers required under sub-paragraph (3)—

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

(b) shall not be unreasonably withheld or delayed.

(5) In relation to a work to which sub-paragraph (1) or (2) applies, the statutory undertakers may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus provided that such modifications are made within a period of 56 days beginning with the date on which the plan under sub-paragraph (1) is submitted to it. For the avoidance of doubt, provided that any further iterations of the plan submitted to the statutory undertakers for approval as a result of modifications required under this paragraph are not materially different to the modifications previously made by the statutory undertakers, any further required modifications will be made by the statutory undertakers as soon as reasonably practicable thereafter and in any event within 21 days of receipt of any further plans.

(6) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub paragraph (2), as amended from time to time by agreement between the undertakers and the statutory undertakers and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (5) or (7) by the statutory undertakers for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the statutory undertakers shall be entitled to watch and inspect the execution of those works.

(7) Where statutory undertakers require any protective works to be carried out either themselves or by the undertakers (whether of a temporary or permanent nature) such protective works shall be carried out to the statutory undertakers’ satisfaction prior to the carrying out of any works authorised by the Order (or any relevant part thereof) and the statutory undertakers shall give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (2) (except in an emergency).

(8) If a statutory undertakers in accordance with sub-paragraph (5) or (7) and in consequence of the works proposed by the undertakers, reasonably requires the removal of any apparatus and gives written notice to the undertakers of that requirement, paragraphs 1 to 3 and 6 to 8 shall apply as if the removal of the apparatus had been required by the undertakers under paragraph 5(2).

(9) Nothing in this paragraph shall preclude the undertakers from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.

(10) The undertakers shall 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 shall give to the statutory undertakers in question notice as soon as is reasonably practicable and a plan of those works and shall—

(a) comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under the Order comply with National Grid’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW27” and HSE’s “HS(~G)47 Avoiding Danger from underground services”.

Retained apparatus: protection: electricity undertakers

8.—(1) Not less than 56 days before commencing the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertakers under paragraph 5(2) or otherwise, the undertakers shall submit to the statutory undertakers in question a plan.

(2) In relation to works which will or may be situated on, over, under or within 8.1 metres measured in any direction of any apparatus, or involve embankment works within 8.1 metres of any apparatus, the plan to be submitted to the statutory undertakers under sub-paragraph (1) shall be detailed including a material statement and describing—

(a) the exact position of the works;

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

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

(d) the position of all apparatus; and

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

(3) The undertakers shall not commence the construction or renewal of any works to which sub-paragraph (1) or (2) applies until the statutory undertakers has given written approval of the plan so submitted.

(4) Any approval of the statutory undertakers required under sub-paragraph (3)—

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

(b) shall not be unreasonably withheld.

(5) In relation to a work to which sub-paragraph (1) or (2) applies, the statutory undertakers may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus provided that such modifications are made within a period of 56 days beginning with the date on which the plan under sub-paragraph (1) is submitted to it. For the avoidance of doubt, provided that any further iterations of the plan submitted to the statutory undertakers for approval as a result of modifications required under this paragraph are not materially different to the modifications previously made by the statutory undertakers, any further required modifications will be made by the statutory undertakers as soon as reasonably practicable thereafter and in any event within 21 days of receipt of any further plans.

(6) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub paragraph (2), as amended from time to time by agreement between the undertakers and the statutory undertakers and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (5) or (7) by the statutory undertakers for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the statutory undertakers shall be entitled to watch and inspect the execution of those works.

(7) Where statutory undertakers require any protective works to be carried out either themselves or by the undertakers (whether of a temporary or permanent nature) such protective works shall be carried out to the statutory undertakers’ satisfaction prior to the carrying out of any works authorised by the Order (or any relevant part thereof) and the statutory undertakers shall give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (2) (except in an emergency).

(8) If a statutory undertakers in accordance with sub-paragraph (5) or (7) and in consequence of the works proposed by the undertakers, reasonably requires the removal of any apparatus and gives written notice to the undertakers of that requirement, paragraphs 1 to 3 and 6 to 8 shall apply as if the removal of the apparatus had been required by the undertakers under paragraph 5(2).

(9) Nothing in this paragraph shall preclude the undertakers from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.

(10) The undertakers shall 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 shall give to the statutory undertakers in question notice as soon as is reasonably practicable and a plan of those works and shall—

(a) comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under the Order comply with National Grid’s policies for development near over headlines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

Expenses

9.—(1) Subject to the following provisions of this paragraph, the undertakers shall repay to a statutory undertakers on demand all charges, costs and expenses reasonably and properly incurred by that statutory undertakers in, or in connection with, the inspection, removal, relaying or replacing, 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 this Schedule including without limitation—

(a) any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that the statutory undertakers elects to use powers of compulsory acquisition to acquire any necessary rights under 5(3) all costs incurred as a result of such action;

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

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

(d) the approval of plans;

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

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

(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertakers or in default of agreement settled by arbitration in accordance with article 34 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the statutory undertakers in question by virtue of sub-paragraph (1) shall be reduced by the amount of that excess save where it is not possible in the circumstances to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs shall be borne by the undertakers.

(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 pipe or 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.

(5) An amount which apart from this sub-paragraph would be payable to a statutory undertakers in respect of works by virtue of sub-paragraph (1) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the statutory undertakers any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Compensation

10.—(1) Subject to sub-paragraphs (2), (3) and (4), if by reason or in consequence of the construction of any such works authorised by this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the undertakers or in consequence of any act or default of the undertakers (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertakers under 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 those works) or property of a statutory undertakers, or there is any interruption in any service provided, or in the supply of any goods, by any statutory undertakers, or the statutory undertakers becomes liable to pay any amount to any third party, the undertakers shall—

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

(b) compensate that statutory undertakers for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from the statutory undertakers, by reason or in consequence of any such damage or interruption or the statutory undertakers becoming liable to any third party as aforesaid.

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

(3) Nothing in sub-paragraph (1) shall impose any liability on the undertakers with respect to any damage or interruption to the extent that it is attributable to the neglect or default of a statutory undertakers, its officers, servants, contractors or agents.

(4) A statutory undertakers shall give the undertakers reasonable notice of any such claim or demand and no settlement or compromise shall be made without first consulting the undertakers and considering their representations (such representations not to be unreasonably withheld or delayed).

Ground subsidence monitoring scheme in respect of statutory undertakers’s apparatus

11.—(1) No works within 15 metres of any apparatus or alternative apparatus shall commence until a scheme for monitoring ground subsidence (“referred to in this paragraph as the monitoring scheme”) which is capable of interfering with or risking damage to statutory undertakers’s apparatus has been submitted to and approved by the relevant statutory undertakers, such approval not to be unreasonably withheld or delayed.

(2) The ground subsidence monitoring scheme described in sub-paragraph (1) shall set out—

(a) the apparatus which is to be subject to such monitoring;

(b) the extent of land to be monitored;

(c) the manner in which ground levels are to be monitored;

(d) the timescales of any monitoring activities; and

(e) the extent of ground subsidence which, if exceeded, shall require the undertakers to submit for statutory undertakers’s approval a ground subsidence mitigation scheme in respect of such subsidence in accordance with sub-paragraph (3).

(3) The monitoring scheme required by sub-paragraphs (1) and (2) must be submitted within 56 days prior to the commencement of any works authorised by this Order or comprised within the authorised development. Any requirements of the statutory undertakers will be notified within 28 days of receipt of the monitoring scheme. Thereafter the monitoring scheme must be implemented as approved, unless otherwise agreed in writing with the statutory undertakers.

(4) As soon as reasonably practicable after any ground subsidence identified by the monitoring activities set out in the monitoring scheme has exceeded the level described in sub-paragraph (2)(e), a scheme setting out necessary mitigation measures (if any) for such ground subsidence (referred to in this paragraph as a “mitigation scheme”) shall be submitted to the statutory undertakers for approval, such approval not to be unreasonably withheld or delayed; and any mitigation scheme must be implemented as approved, unless otherwise agreed in writing with the statutory undertakers except that the statutory undertakers retains the right to carry out any further necessary protective works for the safeguarding of their apparatus and can recover any such costs in line with paragraph 10.

Enactments and agreements

12.  Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the undertakers and a statutory undertakers in respect of any apparatus laid or erected in land belonging to the undertakers on the date on which this Order is made.

Co-operation

13.  Where in consequence of the proposed construction of any of the authorised development, the undertakers or a statutory undertakers requires the removal of apparatus under paragraph 5(2) or a statutory undertakers makes requirements for the protection or alteration of apparatus under paragraph 7 or 8 the undertakers shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the statutory undertakers’s undertaking and each statutory undertakers shall use its best endeavours to co-operate with the undertakers for that purpose.

Access

14.  If in consequence of the agreement reached in accordance with paragraph 4 or the powers granted under this Order the access to any apparatus is materially obstructed, the undertakers shall provide such alternative means of access to such apparatus as will enable the statutory undertakers to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

15.  Save for differences or disputes arising under paragraphs 5(2) and (4), 6(1), 7 and 8 any difference or dispute arising between the undertakers and a statutory undertakers under this Schedule shall, unless otherwise agreed in writing between the undertakers and that statutory undertakers, be determined by arbitration in accordance with article 34 (arbitration).