Articles 31 and 43
1. The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the utility undertaker in question.
2. In this Part—
“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;
“apparatus”—
in the case of a utility undertaker within paragraph (a) of the definition of that term, means electric lines or electrical plant (as defined in the Electricity Act 1989(1)), belonging to or maintained by the utility undertaker;
in the case of a utility undertaker within paragraph (b) of the definition of that term, means any mains, pipes or other apparatus belonging to or maintained by the utility undertaker for the purposes of gas supply;
in the case of a utility undertaker within paragraph (c) of the definition of that term, means mains, pipes or other apparatus belonging to or maintained by the utility undertaker for the purposes of water supply; and
in the case of a utility undertaker within paragraph (d) of the definition of that term—
means—
any drain or works vested in the utility undertaker under the Water Industry Act 1991; and
any sewer that is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act(2) or an agreement to adopt made under section 104 of that Act; and
includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works;
and in each case includes any structure in which apparatus is or is to be lodged or that gives or will give access to apparatus;
“functions” includes powers and duties;
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or on land;
“utility undertaker” means—
for the area of the onshore works; and, in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.
3. This Part does not apply to—
(a)apparatus in respect of which relations between the undertaker and the utility undertaker are regulated by Part 3 of the 1991 Act; and
(b)the offshore works.
4. Despite any provision of this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.
5.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part and any right of a utility undertaker 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 the utility undertaker 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 must give to the utility undertaker 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 conferred by this Order a utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 44 (arbitration).
(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 44, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under this Part.
(6) Despite sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.
(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the 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 300 millimetres of the apparatus.
6.—(1) Where, in accordance with this Part, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted on such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or, in default of agreement, settled by arbitration in accordance with article 44.
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along the authorise development, the arbitrator must—
(a)give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus that may be required to prevent interference with any proposed works of the undertaker; and
(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or along the authorised project 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 utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
7.—(1) Not less than 28 days before executing any works of the type referred to in paragraph 5(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under that sub-paragraph, the undertaker must submit to the utility undertaker in question a plan, section and description of the works to be executed.
(2) The works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the utility undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it; and the utility undertaker is entitled to watch and inspect the execution of the works.
(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.
(4) If a utility undertaker, in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 5 and 6 apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(2).
(5) Nothing in this paragraph prevents the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency, but in that case it must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
8.—(1) Subject to the provisions of this paragraph, the undertaker must pay to a utility undertaker the reasonable expenses incurred by that utility undertaker in, or in connection with,—
(a)the inspection, removal and re-laying or replacing, alteration or protection of any apparatus or the construction of any new apparatus under this Part (including any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or exercise of statutory powers for such apparatus);
(b)the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus in consequence of the exercise by the undertaker of any power under this Order;
(c)the survey of any land, apparatus or works, the inspection, superintendence and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the exercise by the undertaker of any power under this Order; and
(d)any other work or thing rendered reasonably necessary in consequence of the exercise by the undertaker of any such power,
within a reasonable time of being notified by the utility undertaker that it has incurred such expenses.
(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under this Part, that value being calculated after removal.
(3) If in accordance with this Part—
(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 44 to be necessary, then, if such placing involves cost in the construction of works under this Part exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which, apart from this sub-paragraph, would be payable to the utility undertaker in question by virtue of sub-paragraph (1) must 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 must 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 must be treated as if it also had been agreed or had been so determined.
(5) An amount which, apart from this sub-paragraph, would be payable to a utility undertaker in respect of works by virtue of sub-paragraph (1) must, 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 utility undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount that represents that benefit.
9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided by the utility undertaker, the undertaker must—
(a)bear and pay the cost reasonably incurred by that utility undertaker in making good such damage or restoring the supply; and
(b)make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,
by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a utility undertaker, its officers, servants, contractors or agents.
(3) A utility undertaker must give the undertaker reasonable notice of any claim or demand, and no settlement or compromise must be made without the consent of the undertaker which, if it withholds such consent, must have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
10. Nothing in this Part affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker at the date on which this Order is made.
11. In relation to any dispute arising under this Part, the reference in article 44 to the Secretary of State must be read as a reference to the Institution of Engineering and Technology.
1. The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and Network Rail and, where paragraph 15 applies, any other person on whom rights or obligations are conferred by that paragraph.
2. In this Part—
“construction” includes execution, placing, alteration and reconstruction; and “construct” and “constructed” have corresponding meanings;
“engineer” means an engineer appointed by Network Rail for the purposes of this Order;
“network licence” means the network licence, as amended from time to time, granted to Network Rail by the Secretary of State in exercise of powers under section 8 of the Railways Act 1993(5);
“Network Rail” means—
Network Rail Infrastructure Limited; and
any associated company of Network Rail Infrastructure Limited that holds property for railway purposes,
and for the purpose of paragraph (b) “associated company” means any company that is (within the meaning of section 1159 of the Companies Act 2006(6))—
the holding company of Network Rail Infrastructure Limited;
a subsidiary of Network Rail Infrastructure Limited; or
another subsidiary of the holding company of Network Rail Infrastructure Limited;
“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;
“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993(7)) or station lease;
“railway property” means—
any railway belonging to Network Rail;
any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and
any easement or other property interest held or used by Network Rail for the purposes of such railway or works, apparatus or equipment;
“specified work” means so much of any of the onshore works as is situated on, across, under, over or within 15 metres of, or may in any way affect, railway property.
3.—(1) Where under this Part Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures, and any obligations under its network licence or under statute.
(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—
(a)co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and
(b)use its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised project pursuant to this Order.
4.—(1) The undertaker must not exercise the powers conferred by article 20 (authority to survey and investigate land) or the powers conferred by section 11(3) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.
(2) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.
(3) The undertaker must not under the powers conferred by this Order acquire or use new rights over any railway property except with the consent of Network Rail.
(4) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld, but may be given subject to reasonable conditions.
5.—(1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer, and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.
(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed, and if after 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated disapproval of those plans and the grounds of disapproval—
(a)the undertaker may serve on the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date on which the engineer receives written notice from the undertaker; and
(b)if after the expiry of the further period of 28 days the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as supplied.
(3) If after the expiry of 28 days beginning with the date on which written notice was served on the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work that in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph and under the supervision (where appropriate and if given) of the undertaker.
(4) When signifying approval of the plans, the engineer may specify any protective works (whether temporary or permanent) that in the engineer’s opinion should be carried out before the commencement of construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation, decommissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and—
(a)such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, at the expense of the undertaker, in either case with all reasonable dispatch; and
(b)the undertaker may not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.
6.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 5(4) must, when commenced, be constructed—
(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;
(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;
(c)in such manner as to cause as little damage as is possible to railway property; and
(d)so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.
(2) If any damage to railway property or any interference or obstruction referred to in sub-paragraph (1)(d) is caused by the carrying out of, or in consequence of, the construction of a specified work, the undertaker must, despite any approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.
(3) Nothing in this Part imposes—
(a)any liability on the undertaker with respect to any costs, damages, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents; or
(b)any liability on Network Rail with respect of any costs, damages, expenses or loss attributable to the negligence of the undertaker or its servants, contractor or agents.
7. The undertaker must—
(a)at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and
(b)supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.
8. Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.
9.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction of a specified work or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe and efficient operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail.
(2) If Network Rail gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs that may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.
(3) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail itself desires to construct that part of the specified work that in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, despite any approval of the specified work under paragraph 5(1), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by means of the execution by Network Rail of that specified work.
(4) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a), provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.
(5) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions, a capitalised sum representing such savings must be set off against any such sum payable by the undertaker to Network Rail under this paragraph.
10. The undertaker must pay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—
(a)in constructing any part of a specified work on behalf of the undertaker under paragraph 5(3) or in constructing any protective works under paragraph 5(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;
(b)in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work;
(c)in respect of the employment or procurement of the services of any inspectors, signallers, guards and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;
(d)in respect of any special traffic working resulting from any speed restrictions that may, in the opinion of the engineer, need to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services that may be reasonably necessary for the same reason; and
(e)in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.
11.—(1) In this paragraph—
“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail’s apparatus generated by the operation of the onshore works where such interference is of a level that adversely affects the safe operation of Network Rail’s apparatus;
“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the onshore works) that are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.
(2) This paragraph applies to EMI only to the extent that the EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the onshore works giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).
(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised project take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—
(a)the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;
(b)Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified pursuant to paragraph (a); and
(c)Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to paragraph (a).
(5) In any case where it is established that EMI can reasonably be prevented only by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 5(1) has effect subject to this sub-paragraph.
(6) If, at any time before the commencement of regular operation of the onshore works and despite any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised works causes EMI, the undertaker must immediately on receipt of notification by Network Rail of the EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) cease to use (or procure the cessation of use of) the undertaker’s apparatus causing the EMI until all measures necessary have been taken to remedy the EMI by way of modification to the source of the EMI or (in the circumstances, and subject to the consent specified in sub-paragraph (5)) to Network Rail’s apparatus.
(7) In the event of EMI having occurred—
(a)the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of the EMI;
(b)Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of the EMI; and
(c)Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or the EMI.
(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraph (5) or (6)—
(a)Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and
(b)any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 6.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purpose of paragraph 10(a), any modifications to Network Rail’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.
(11) In relation to any dispute arising under this paragraph, the reference in article 44 (arbitration) to the Secretary of State must be read as a reference to the Institution of Electrical Engineers.
12. If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put the specified work in such state of maintenance as not adversely to affect railway property.
13. The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail, and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.
14. Any additional expenses that Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at date on which this Order is made by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be paid by the undertaker to Network Rail.
15.—(1) The undertaker must—
(a)pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part that may be occasioned to or reasonably incurred by Network Rail—
(i)by reason of the construction or maintenance of a specified work or its failure; or
(ii)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged on a specified work; and
(b)indemnify Network Rail and keep Network Rail indemnified from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission.
(2) The fact that any act may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision must not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under this Part.
(3) Network Rail must give the undertaker reasonable notice of any such claim or demand, and no settlement or compromise of such a claim or demand must be made without the prior consent of the undertaker.
(4) The sums payable by the undertaker under sub-paragraph (1) must include a sum equivalent to the relevant costs.
(5) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums that Network Rail receives under sub-paragraph (1) that relates to the relevant costs of that train operator.
(6) The obligation under sub-paragraph (4) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that train operator pursuant to sub-paragraph (5).
(7) In this paragraph—
“relevant costs” means the costs, direct losses and expenses (including loss of revenue) incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work, or any such act or omission as mentioned in sub-paragraph (1);
“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.
16. Network Rail must, on receipt of a request from the undertaker, from time to time provide to the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part (including the amount of the relevant costs mentioned in paragraph 15) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part (including any claim relating to those relevant costs).
17. In the assessment of any sums payable to Network Rail under this Part, there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part or increasing the sums so payable.
18. The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—
(a)any railway property shown on the works plans and land plans and described in the book of reference;
(b)any lands, works or other property held in connection with any such railway property; and
(c)any rights and obligations (whether or not statutory) of Network Rail relating to any railway property.
19. Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.
20. The undertaker must give written notice to Network Rail if any submission is proposed to be made by the undertaker for the Secretary of State’s certification under article 42 (certification of plans and documents, etc.), and the notice must be given no later than 28 days before the submission is made and must describe or give (as appropriate)—
(a)the nature of the submission to be made;
(b)the extent of the geographical area to which the submission relates; and
(c)the name and address of the person acting for the Secretary of State to whom the submission is to be made.
21. The undertaker must, no later than 28 days after the date on which the plans submitted to the Secretary of State in accordance with article 42 are certified by the Secretary of State, provide to Network Rail a set of plans that relate to the specified works in the form of a computer disc with read-only memory.
1.—(1) The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the operator.
(2) In this Part—
“2003 Act” means the Communications Act 2003;
“conduit system” has the same meaning as in the electronic communications code; and references to providing a conduit system must be construed in accordance with paragraph 1(3A) of the code(8);
“electronic communications apparatus” has the same meaning as in the electronic communication code;
“electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act(9);
“electronic communications code network” means—
so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and
an electronic communications network that the Secretary of State is providing or proposing to provide;
“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;
“operator” means the operator of an electronic communications code network.
2. The temporary stopping up or diversion of any street under article 15 (temporary stopping up of streets) does not affect any right of the operator under paragraph 9 of the electronic communications code to maintain any apparatus that, at the time of the stopping up or diversion, is in the street.
3.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised project or its construction, or of any subsidence resulting from any of the project—
(a)any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the project), or other property of an operator; or
(b)there is any interruption in the supply of the service provided by an operator,
the undertaker must—
(c)bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply;
(d)make reasonable compensation to the operator for loss sustained by it; and
(e)indemnify the operator against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, an operator by reason, or in consequence of, any such damage or interruption.
(2) Sub-paragraph (1) does not apply to—
(a)any apparatus in respect of which the relations between the undertaker and an operator are regulated by Part 3 of the 1991 Act; or
(b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised project.
(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.
(4) The operator must give the undertaker reasonable notice of any claim or demand, and no settlement or compromise of the claim or demand may be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(5) Any difference arising between the undertaker and the operator under this Part must be referred to and settled by arbitration under article 44 (arbitration).
1. The provisions of this Part have effect unless otherwise agreed in writing between the undertaker and the Company in question.
2.—(1) In this Part—
“cables” means the whole or any part of the UK-Denmark-4 cable or the Pangea North cable system;
“Company” means—
BT Group plc in relation to the UK-Denmark-4 cable;
Shell UK Limited in relation to the Shearwater to Bacton (SEAL) pipeline;
Gassco AS in relation to the Langeled pipeline;
Alcatel-Lucent Submarine Networks, SAS in relation to the Pangea North cable system;
“construction” includes execution, placing and altering; and cognate expressions must be construed accordingly;
“Langeled pipeline” means the underwater pipeline transporting Norwegian natural gas to the United Kingdom across the North Sea;
“Pangea North cable system” means the submarine telecommunications cable system laid between the United Kingdom and the Netherlands;
“pipelines” means the whole or any part of the Langeled pipeline or the Shearwater to Bacton (SEAL) pipeline that are used for the conveyance of any hydrocarbon fuel and in respect of which a Company has an interest for the time being, together with any associated plant and equipment serving those pipelines;
“plans” includes sections, drawings, calculations, methods of construction, particulars and specifications;
“protected property” means the cables and pipelines—
any part of which is situated within the Order limits for the offshore works; and
in respect of which a Company has an interest for the time being;
“protective works” has the meaning given in paragraph 9;
“Shearwater to Bacton (SEAL) pipeline” means the gas pipeline connecting the Shell terminal in the United Kingdom to the Shearwater and Elgin-Franklin gas fields in the central North Sea;
“UK-Denmark-4 cable” means the out-of-service telecommunications cable laid between the United Kingdom and Denmark;
“works” means Work Nos. 1A, 1B, 2A, 2B, 2T, 3A and 3B.
(2) In this Part, references to a Company—
(a)are references to any (or, as the case may be, each) Company that has an interest in the protected property concerned for the time being; and
(b)include references to its successors in title in respect of any protected property.
3. Despite anything in this Order or shown on the works plans, the undertaker must not pursuant to the powers conferred by this Order appropriate and remove any protected property otherwise than by agreement with the Company.
4. Despite anything in this Order, except in the case of any part of the protected property that the Company certifies in writing is permanently disused, the undertaker must not exercise the powers conferred by this Order to relocate any protected property until suitable alternative facilities have been provided by the undertaker and are available for use to the reasonable satisfaction of the Company.
5. The undertaker must use its best endeavours—
(a)in exercising any of the powers conferred by this Order to avoid or (failing avoidance) to minimise any damage or disruption to the protected property; and
(b)without limiting sub-paragraph (a), to ensure that the works do not at any time fall into such a condition as to compromise the integrity or operation of the protected property.
6. Not less than 8 months before commencing construction of the works, the undertaker must furnish to the Company a programme for the works proposed and a general indication of the nature and location of the works and, if within 28 days after receipt by a Company of that programme and general indication the Company gives notice in writing to the undertaker that any part of the offshore works indicated in the programme may in any way affect protected property, paragraphs 8 and 9 apply with respect to that part of those works.
7. On giving any notice to the undertaker under paragraph 6, the Company must furnish existing drawings showing to the best of its knowledge the position and depth of the relevant part of the protected property.
8. Not less than 4 months before commencing construction of any part of the offshore works that may significantly affect the protected property, the undertaker must furnish to the Company detailed plans and specifications of the relevant part of the offshore works and must have due regard to any representations made by the Company relating to such plans or to the programme for the works and make reasonable changes required to avoid risk of harm to the protected property by the construction.
9. At any time within 1 month after the receipt by the Company of the plans referred to in paragraph 8 the Company may by notice in writing to the undertaker specify any reasonable temporary or permanent works or measures (the “protective works”) which in its reasonable opinion should be carried out or taken by the undertaker before the commencement of or during the construction of the works in order to ensure the stability of the protected property (shown on the drawings furnished by the Company under paragraph 7) or to protect them from injury and such protective works must be constructed by the undertaker at its own expense and under the inspection (if any) of the Company.
10. Except in the case of protective works that the Company has informed the undertaker in writing may be carried out during the construction of the works, the undertaker must not commence the construction of any work within 50 metres of, or which may in any way affect, the protected property until the protective works relating to the work have been completed to the reasonable satisfaction of the Company.
11. In the case of protective works of which the Company has informed the undertaker in writing as mentioned in paragraph 10, the undertaker must comply with all reasonable requirements of the Company arising from its inspection under paragraph 9 as promptly as practicable after the undertaker has been notified of such requirements.
12. Except in an emergency (when it must give such notice as may be reasonably practicable), the undertaker must give the Company not less than 56 days’ notice of its intention to carry out any works for the repair or maintenance of the works in so far as such works may affect or interfere with the protected property.
13. The undertaker must pay to the Company the reasonable expenses properly incurred by the Company in or in connection with the removal and relaying or replacing of any part of protected property, including the provision, laying down or placing of any alternative facilities.
14. The undertaker must pay to the Company the reasonable expenses properly incurred by the Company in or in connection with the preparation of drawings or notice referred to in paragraph 7 or 9 and by the Company in the watching and inspecting of any protective works relating to protected property.
15. This Part does not apply in relation to any protected property laid by or for the use of the Company after this Order comes into force.
16. Nothing in this Part affects any enactment or any regulations made under any enactment or any agreement regulating the relations between the undertaker and the Company in respect of any protected property laid within the Order limits for the offshore works in force on the date on which this Order comes into force.
1.—(1) The provisions of this Part have effect for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.
2. In this Part—
“Agency” means the Environment Agency;
“construction” includes execution, placing, altering, replacing, relaying and removal; and “construct” and “constructed” must be construed accordingly;
“drainage work” means any watercourse and includes—
any land that provides or is expected to provide flood storage capacity for any watercourse;
any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring; and
any ancillary works constructed as a consequence of works carried out for drainage purposes;
“fishery” means any watercourse within the Order limits containing fish, fish in such waters and the spawn, habitat or food of such fish;
“plans” includes sections, drawings, specifications and method statements;
“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of, a drainage work or is otherwise likely to—
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;
cause obstruction to the free passage of fish or damage to any fishery; or
affect the conservation, distribution or use of water resources;
“watercourse” means all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer.
3.—(1) Before commencing construction of any specified work, the undertaker must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably require.
(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 13.
(3) Any approval of the Agency required under this paragraph—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval or receipt of further particulars if such particulars have been required by the Agency and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and
(c)may be given subject to such reasonable requirements as the Agency may make for the protection of any drainage work or fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.
(4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).
4. Without limiting paragraph 3 but subject always to the provision of that paragraph as to reasonableness, the requirements that the Agency may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—
(a)to safeguard any drainage work against damage;
(b)to secure that its efficiency for flood defence purposes is not impaired, and that the risk of flooding is not otherwise increased, by reason of the specified work.
5.—(1) Subject to sub-paragraph (2), the specified work, and all protective works required by the Agency under paragraph 4, must be constructed—
(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under this Part; and
(b)to the reasonable satisfaction of the Agency,
and an officer of the Agency is entitled to watch and inspect the construction of such works.
(2) The undertaker must give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work, and notice in writing of its completion, not later than 7 days after the date on which it is completed.
(3) If the Agency reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of any specified work.
(4) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.
(5) Subject to sub-paragraph (6) and paragraph 9, if within a reasonable period, being not less than 28 days from the date on which a notice under sub-paragraph (4) is served on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice or subsequently to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice, and any expenditure incurred by it in so doing is recoverable from the undertaker.
(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not except in an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined.
6.—(1) Subject to sub-paragraph (6), the undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work that is situated within the Order limits and on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.
(2) If any such drainage work that the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to repair and restore the work, or any part of such work, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.
(3) Subject to paragraph 9, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice or has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.
(4) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the Agency in accordance with this Part, the Agency may serve written notice requiring the undertaker to cease all or part of the specified works, and the undertaker must cease the specified works or part of them until it has obtained the consent or complied with the condition unless the cessation of the specified works or part of them would cause greater damage than compliance with the written notice.
(5) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.
(6) This paragraph does not apply to drainage works that are vested in the Agency, or that the Agency or another person is liable to maintain and is not prevented by this Order from doing so.
7. Subject to paragraph 9, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or the drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency, and, if the undertaker fails to do so, the Agency may make good the same and recover from the undertaker the expense reasonably incurred by it in doing so.
8.—(1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in a fishery during the construction of any specified work.
(2) If by reason of—
(a)the construction of any specified work; or
(b)the failure of any such work, damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.
(3) Subject to paragraph 9, if, within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from the undertaker the expense reasonably incurred by it in doing so.
(4) Subject to paragraph 9, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker the reasonable cost of doing so, provided that notice specifying those steps is served on the undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.
9.—(1) Nothing in paragraphs 5(5), 6(3), 7 and 8(3) and (4) authorises the Agency to execute works on or affecting the authorised development without the prior consent in writing of the undertaker.
(2) Consent under sub-paragraph (1) must not be unreasonably withheld or delayed, and the undertaker is deemed to have given its consent if it has not refused consent within 2 months of receiving a written request from the Agency.
10. The undertaker must indemnify the Agency in respect of all costs, charges and expenses that the Agency may reasonably incur, have to pay or sustain—
(a)in the examination or approval of plans under this Part;
(b)in the inspection of the construction of the specified works or any protective works required by the Agency under this Part; and
(c)in the carrying out of any surveys or tests by the Agency that are reasonably required in connection with the construction of the specified works.
11.—(1) Without limiting the other provisions of this Part, the undertaker must indemnify the Agency from all claims, demands, proceedings, costs, damages, expenses or loss that may be made or taken against, recovered from, or incurred by, the Agency by reason of—
(a)any damage to a drainage work so as to impair its efficiency for the purposes of flood defence;
(b)any damage to a fishery;
(c)any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses;
(d)any flooding or increased flooding of any such land; or
(e)inadequate water quality in any watercourse or in any groundwater that is caused by the construction of any of the specified works or any act or omission of the undertaker, its contractors, agents or employees whilst engaged on the work.
(2) The Agency must give to the undertaker reasonable notice of any such claim or demand, and no settlement or compromise may be made without the agreement of the undertaker, which agreement must not be unreasonably withheld or delayed.
12. The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under the provisions of this Part.
13. Any dispute arising between the undertaker and the Agency under this Part, if the parties agree, is to be determined by arbitration under article 44 (arbitration), but otherwise must be determined by the Secretary of State for the Environment, Food and Rural Affairs and after notice in writing by 1 to the other.
1. The provisions of this Part have effect for the benefit of owners and operators in the Wilton Complex(10) and owners of the Wilton Land unless otherwise agreed in writing between the undertaker and the owner or operator in question.
2. In this Part—
“alternative apparatus” means alternative apparatus adequate to serve the owner of the apparatus in question in a manner no less efficient than previously;
“apparatus” means mains, pipes, cables, sewers, drains, ditches, watercourses or other apparatus and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“construction access plan” means a plan identifying how access will be maintained to land in the Wilton Complex during the construction of the authorised project, including—
any restrictions on access, including the timing of restrictions;
any alternative accesses or routes of access that may be available to the undertaker using the Wilton Site Roads; and
details of how the needs and requirements of persons with operations at the Wilton Complex (including their needs and requirements in relation to any programmed works that they have notified to the other operators at the Wilton Complex as at the date when the plan is published) have been taken into account in preparing the plan;
“description”, in relation to works, means a detailed description of the works and includes full detail of any protective measures proposed to be incorporated as part of those works (for example, to safeguard any apparatus the removal of which is not required by the undertaker under paragraph 4(2));
“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or on land;
“maintenance access plan” means a plan identifying how access will be maintained to land in the Wilton Complex during the maintenance of the authorised project, including—
any restrictions on access, including the timing of restrictions;
any alternative accesses or routes of access which may be available to the undertaker using the Wilton Site Roads; and
details of how the needs and requirements of persons with operations at the Wilton Complex (including their needs and requirements in relation to any programmed works that they have notified to the other operators at the Wilton Complex as at the date when the plan is published) have been taken into account in preparing the plan;
“major works” means works by any person requiring the closure, diversion or regulation of any of the Wilton Site Roads;
“operator” means any person who is responsible for the construction, operation, use, inspection, adjustment, alteration, repair, maintenance, renewal, removal or replacement of any apparatus or alternative apparatus in the Wilton Complex, but who is not an owner in relation to the Wilton Land or the Wilton Complex;
“owner” means—
in relation to the Wilton Land, any person—
with an interest in the Wilton Land;
with rights in, on, under or over the Wilton Land;
with apparatus in, on or under the Wilton Land;
in relation to the Wilton Complex, any owner or occupier in the Wilton Complex;
“Wilton Land” means the Wilton Complex and Plots 42A, 42B, 43A, 43B, 44A, 44B, 63A, 63B, 64, 65, 66, 67A, 67B, 67C, 67D, 67E, 67F, 68, 86 and 87 shown on the land plans;
“Wilton Site Roads” mean any of the roads shown in red on plan 2 (T-MIS-0066-01) of the Wilton protective provisions supporting plans(11), to the extent these are in the Wilton Complex, and includes any part of such a road.
3. Nothing in this Part applies to apparatus in respect of which the relations between the undertaker and the owner are regulated by Part 3 of the 1991 Act.
4.—(1) The undertaker must not in the exercise of the powers conferred by this Order acquire, appropriate, extinguish or suspend any rights in the Wilton Land if the authorised project can reasonably and practicably be carried out without such acquisition, appropriation, extinguishment or suspension.
(2) The undertaker must in the exercise of the powers conferred by this Order at all times act so as to minimise, as far as reasonably practicable, any detrimental effects on owners and operators, including any disruption to access and supplies of utilities and other services that are required by them in order to carry out their operations.
5.—(1) The undertaker must not exercise the identified powers—
(a)in relation to the Wilton Land without the consent in writing of the owner of that land; or
(b)where the exercise of the identified powers affects apparatus in the Wilton Land that is operated for the benefit of the Wilton Complex, without the consent in writing of the operator in relation to that apparatus.
(2) Where a person is asked to give consent for the purposes of sub-paragraph (1), the consent must not be unreasonably withheld.
(3) If the undertaker considers that consent has been unreasonably withheld, the undertaker may refer the request for consent to an expert appointed under paragraph 24 for determination.
(4) If an owner or operator fails to respond to a request for consent within 30 days after the day on which the request is made, consent is deemed to have been unreasonably withheld, and the undertaker may refer the request for consent to an expert appointed under paragraph 24 for determination.
(5) Except in an emergency, or as otherwise provided in this Part, the undertaker must give at least 30 days’ notice of the proposed exercise of the identified powers to affected owners of the Wilton Land.
(6) In this paragraph, “identified powers” means the powers conferred by the following—
(a)article 15 (temporary stopping up of streets);
(b)article 16 (access to works);
(c)article 18 (discharge of water);
(d)article 20 (authority to survey and investigate land);
(e)article 22 (compulsory acquisition of land);
(f)article 25 (compulsory acquisition of rights);
(g)article 26 (private rights of way);
(h)article 28 (rights under or over streets);
(i)article 29 (temporary use of land for carrying out authorised project);
(j)article 30 (temporary use of land for maintaining the carrying out authorised project).
6.—(1) Before carrying out any works on any part of the authorised project on the Wilton Land, the undertaker must put in place a policy of insurance with a reputable insurer against consequential loss and damage suffered by owners of the Wilton Land or as may be determined by an expert under paragraph 24, and evidence of that insurance must be provided on request to owners of the Wilton Land.
(2) Not less than 90 days before carrying out any works on any part of the authorised project on the Wilton Land or before proposing to change the terms of the insurance policy, the undertaker must notify the owners of the Wilton Land of details of the terms or cover of the insurance policy that it proposes to put in place including the proposed level of the cover to be provided.
(3) The undertaker must maintain insurance in relation to works or the use of the authorised project affecting owners of the Wilton Land during the operation of the authorised project at the level specified in the notice of proposed insurance.
7. If an owner or operator considers that any proposed exercise by the undertaker of a power under this Order breaches paragraph 4 or 5 or if there is a dispute about the proposed insurance (including the terms or level of cover) to be provided under paragraph 6, before such a power may be exercised—
(a)the owner or operator may refer the matter to an expert for determination under paragraph 24; and
(b)the undertaker must not exercise the power concerned until that determination has been provided.
8.—(1) If, in exercise of the powers conferred by this Order, the undertaker acquires any estate, interest or right in any land in which any apparatus is placed, the apparatus must not be removed, and any right to maintain the apparatus in the land must not be extinguished, until alternative apparatus has been constructed and is in operation and equivalent rights for the alternative apparatus have been granted to the owner or operator of the apparatus.
(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 the land, it must give to the owner or operator in question written notice of the 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 the undertaker must afford to the owner the necessary facilities and rights for the construction, adjustment, alteration, use, repair, maintenance, renewal, inspection, removal and replacement of alternative apparatus in other land of the undertaker and subsequently for the maintenance of the apparatus.
(3) Any alternative apparatus to be constructed in land of the undertaker under this Part must be constructed in such manner and in such line or situation as may be agreed between the owner or operator in question and the undertaker or in default of agreement settled by an expert appointed under paragraph 24.
(4) The owner or operator in question must, after the alternative apparatus to be provided or constructed has been agreed or determined by an expert under paragraph 24, and after the grant to the owner of any such facilities and rights as are referred to in sub-paragraph (2) and after the expiration of any applicable notice period in respect of the works under the Pipelines Safety Regulations 1996(12), 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 this Part.
(5) Despite sub-paragraph (4), if the undertaker gives notice in writing to the owner or operator in question that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land of the undertaker, that work, instead of being executed by the owner or operator, must be executed by the undertaker without unnecessary delay to an appropriate standard and in a safe manner.
(6) If works are executed by the undertaker in accordance with sub-paragraph (5), the owner or operator of the apparatus must be notified of the timing of the works and afforded facilities to watch, monitor and inspect the execution of the works.
(7) Nothing in sub-paragraph (5) authorises the undertaker to execute the 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 3,000 millimetres of the apparatus, without the written agreement of the owner or operator, such agreement not to be unreasonably withheld.
9.—(1) Where, in accordance with this Part, the undertaker affords to an owner or operator facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted on such terms and conditions as may be agreed between the undertaker and the owner or operator in question or in default of agreement determined by an expert under paragraph 24, such terms to be no less favourable as a whole than the terms and conditions which applied to the apparatus to be removed.
(2) In settling the terms and conditions in respect of alternative apparatus to be constructed in or along the authorised project, the expert must—
(a)give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised project and for securing any subsequent alterations or adaptations of the alternative apparatus that may be required to prevent interference with any proposed works of the undertaker; and
(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or along the authorised project 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 expert materially worse than the rights enjoyed by them in respect of the apparatus to be removed, the expert must make such provision for the payment of compensation by the undertaker to the owner or operator as appears to the expert to be reasonable, having regard to all the circumstances of the particular case.
10.—(1) Not less than 30 days before commencing the execution of any works of the type referred to in paragraph 8(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under that sub-paragraph, and in all cases where such works are within 3,000 millimetres of any apparatus the removal of which has not been required by the undertaker under that sub-paragraph, the undertaker must submit to the owner or operator in question a plan, section and description of the works to be executed.
(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the owner or operator for the alteration or otherwise for the temporary or permanent protection of the apparatus, or for securing access to it, and the owner or operator must be notified of the timing of the works and afforded facilities to watch, monitor and inspect the execution of the works.
(3) Any requirements made by an owner or operator under sub-paragraph (2) must (except in circumstances where the requirements reasonably arise from the owner or operator watching, monitoring and inspecting those works) be made within 30 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it and, where the works relate to the installation or construction of the authorised project, such requirements may require the protective measures referred to in sub-paragraph (2) to be retained in place at any time that the authorised project is installed.
(4) If an owner or operator, 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, this Part applies as if the removal of the apparatus had been required by the undertaker under paragraph 8(2).
(5) Nothing in this paragraph prevents the undertaker from submitting at any time or from time to time, but in no case less than 30 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(6) On the reasonable and evidenced request of an owner or operator affected by proposed works, the undertaker must extend the periods in this paragraph by a reasonable time.
(7) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency, but in that case the undertaker—
(a)must undertake the works in such manner as has regard to the potential lack of suitable temporary or permanent protection of the owner’s or operator’s apparatus;
(b)must give to the owner or operator in question, as soon as reasonably practicable, notice and a plan, section and description of the works; and
(c)must comply with sub-paragraph (2) so far as is reasonably practicable in the circumstances.
11.—(1) Subject to the provisions of this paragraph, the undertaker must pay to an owner or operator the reasonable expenses incurred by the owner or operator in, or in connection with,—
(a)the inspection, removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus or alternative apparatus under any provision of this Part;
(b)the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus in consequence of the exercise by the undertaker of any power under this Order;
(c)the survey of any land, apparatus or works, the watching, inspection, superintendence and monitoring of works or the installation or removal of any temporary works in consequence of the exercise by the undertaker of any power under this Order;
(d)the design, project management, supervision and implementation of works;
(e)the negotiation and grant of necessary rights for the construction, adjustment, alteration, use, repair, maintenance, renewal, inspection, removal and replacement of alternative apparatus;
(f)monitoring the effectiveness of any protective measures referred to in paragraph 10(2) and the installation of any additional protective measures reasonably required in order to deal with any deficiency in the expected level of protection afforded by those protective measures;
(g)any other work or thing reasonably required in consequence of the exercise by the undertaker of any power under this Order or by the service by the undertaker of any notice, plan, section or description,
within a reasonable time of being notified by the owner or operator that it has incurred such expenses.
(2) There must be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under this Part, that value being calculated after removal.
(3) If in accordance with this Part—
(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 an expert under paragraph 24 to be necessary, then, if such placing involves cost in the construction of works under this Part 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 owner in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.
(4) In determining whether the placing of apparatus of a type or capacity or of particular dimensions or the placing of apparatus at a particular depth, as the case may be, are necessary under sub-paragraph (3), regard must be had to current health and safety requirements, current design standards, relevant good practice and process design specification.
(5) For the purposes of sub-paragraph (3)—
(a)an extension of apparatus to a length greater than the length of existing apparatus must 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 must be treated as if it also had been agreed or had been so determined.
(6) An amount which apart from this sub-paragraph would be payable to an owner or operator in respect of works by virtue of sub-paragraph (1) must, if it confers a financial benefit on the owner or operator by deferment of the time for renewal of the apparatus in the ordinary course of the owner’s or operator’s business practice, be reduced by the amount that represents that benefit.
12.—(1) Subject to sub-paragraphs (2) and (3), if, by reason or in consequence of the construction of the authorised project or any such works referred to in paragraph 8(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 an owner or operator, or there is any interruption in any service provided by or operations of the owner or operator, the undertaker must—
(a)bear and pay the cost reasonably incurred by the owner or operator in making good such damage or restoring the supply and operations; and
(b)make compensation to the owner or operator and any other person whose supply or operations are affected by the interruption for any other expenses, loss, damages, penalty or costs incurred by them,
by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an owner or operator, its officers, servants, contractors or agents.
(3) An owner or operator must give the undertaker reasonable notice of any such claim or demand, and no settlement or compromise of any claim made against the owner or operator by any third party may be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
13.—(1) The undertaker must not in the exercise of the powers conferred by this Order unreasonably delay or prevent the construction, installation, adjustment, alteration, operation, use, repair, maintenance, renewal, inspection, removal or replacement of apparatus in the Wilton Land.
(2) If an owner or operator considers that the undertaker is in breach of sub-paragraph (1), it may refer the matter to an expert for determination under paragraph 24.
14.—(1) The undertaker must afford to owners of the Wilton Land rights for the construction, adjustment, alteration, use, repair, maintenance, renewal, inspection, removal and replacement of apparatus in the Wilton Land acquired by the undertaker or affecting the rights of, or permitted under the rights acquired by, the undertaker.
(2) The rights referred to in sub-paragraph (1) must be granted on terms and conditions that are materially no worse than the terms and conditions that apply to similar apparatus affecting the authorised project as may be agreed between the undertaker and the person wishing to construct, adjust, alter, use, repair, maintain, renew, inspect, remove or replace that apparatus in question or in default of agreement determined by an expert under paragraph 24.
(3) In settling the terms and conditions of any grant of rights, regard must be had to the terms and conditions applicable from time to time to the construction, adjustment, alteration, use, repair, maintenance, renewal, inspection, removal or replacement of other apparatus in the Wilton Complex.
15.—(1) Before carrying out any construction works affecting access rights over the Wilton Site Roads, the undertaker must prepare a draft construction access plan and publicise and consult on the draft plan with owners and operators in the Wilton Complex.
(2) The undertaker must take account of the responses to consultation referred to in sub-paragraph (1) before approving the construction access plan.
(3) No works affecting access rights over the Wilton Site Roads may commence until 30 days after a copy of the approved construction access plan is served on owners and operators in the Wilton Complex.
(4) On the reasonable and evidenced request of an owner or operator in the Wilton Complex affected by proposed works, the undertaker must extend the period mentioned in sub-paragraph (3) by a reasonable time.
16.—(1) Before carrying out any maintenance works affecting access rights over the Wilton Complex, the undertaker must prepare a draft maintenance access plan and publicise and consult on the draft plan with owners and operators in the Wilton Complex.
(2) The undertaker must take account of the responses to consultation referred to in sub-paragraph (1) before approving the maintenance access plan.
(3) No works affecting access rights over the Wilton Complex may commence until 30 days after a copy of the approved maintenance access plan is served on owners and operators in the Wilton Complex.
(4) On the reasonable and evidenced request of an owner or operator in the Wilton Complex affected by proposed works, the undertaker must extend the period mentioned in sub-paragraph (3) by a reasonable time.
17.—(1) In preparing a construction access plan under paragraph 15 or a maintenance access plan under paragraph 16, the undertaker must—
(a)establish the programme for major works in the Wilton Complex and plan the construction or maintenance of the authorised project to prevent (or, if such conflict cannot be reasonable prevented, to minimise) any conflict between the construction or maintenance of the authorised project and the programmed major works; and
(b)establish where an owner or operator has a reasonable expectation to exercise access rights over particular Wilton Site Roads in respect of which rights are proposed to be restricted or extinguished, establish the purpose of that expectation and provide an alternative or replacement means of access whereby that expectation can be met.
(2) Where a reference is made to expert determination under paragraph 24 in relation to any disagreement about a construction access plan, the appointed expert must have regard to—
(a)whether major works were, at the date of the consultation already programmed to take place;
(b)the extent to which the authorised project can be accommodated simultaneously with the programmed major works;
(c)the usual practice in respect of conditions or requirements subject to which authorisation is given by the owner of the Wilton Site Road;
(d)the undertaker’s programme in respect of the authorised project and the extent to which it is reasonable for it to carry out the authorised project at a different time;
(e)the availability (or non-availability) of other times during which the authorised project could be carried out;
(f)the programme in respect of the major works and the extent to which it is reasonable for the owner or operator at the Wilton Complex to carry out the major works at a different time; and
(g)the financial consequences of the decision on the undertaker and on any owner and operator in the Wilton Complex.
(3) In this paragraph, “programmed”, in relation to works, means works in respect of which the owner of the Wilton Site Roads has been notified of the dates between which the works are programmed to be carried out.
18. In exercising any right of access over any of the Wilton Site Roads, the undertaker must pay to the owner the reasonable expenses incurred by the owner in operating, repairing, maintaining, renewing, inspecting and replacing the Wilton Site Road together with any perimeter gatehouses and other security serving the Wilton Complex having regard to user, within a reasonable time of being notified by the owner that it has incurred such expenses.
19.—(1) Subject to sub-paragraph (2) in undertaking any works in the Wilton Land or exercising any rights relating to or affecting owners and operators in the Wilton Complex, the undertaker must comply with such conditions, requirements or regulations relating to health, safety, security and welfare as are operated in relation to access to or activities in the Wilton Complex.
(2) The undertaker is not bound by any condition, requirement or regulation that is—
(a)introduced after the date on which notice of the works was given; or
(b)determined by the expert following a determination under paragraph 24 to—
(i)create significant engineering, technical or programming difficulties; or
(ii)materially increase the cost of carrying out the works.
(3) Sub-paragraph (2) does not apply if the condition, requirement or regulation was introduced by way of legislation, direction or policy of the government, a relevant government agency, a local authority or the police.
20. Before undertaking any work in the Wilton Land or exercising any rights relating to or affecting the Wilton Land, the undertaker must consult the owners of the Wilton Land.
21. Before undertaking any works in the Wilton Land or exercising any identified powers (as defined in paragraph 5(6)) relating to or affecting owners or operators in the Wilton Complex, the undertaker must participate in any relevant consultation groups operated in the Wilton Complex.
22. Before undertaking any construction works on the Wilton Land or commencing the operation of Work No. 7, where any of these might reasonably be expected to give rise to significantly perceptible effects beyond the Wilton Land in terms of—
(a)construction or operational noise and vibration management;
(b)air quality, including dust emissions;
(c)waste management;
(d)traffic management and materials storage on site;
(e)water management (surface water and groundwater); or
(f)artificial light emissions,
the undertaker must participate in any relevant community environmental liaison group that might from time to time be established between the owners or operators at the Wilton Complex and local residents.
23. The undertaker must co-operate with the owners and operators in the Wilton Complex to respond promptly to any complaints raised in relation to the construction or operation of the authorised project in the Wilton Complex or the traffic associated with the authorised project.
24.—(1) Except as provided in sub-paragraph (7), article 44 (arbitration) does not apply to this Part.
(2) Any difference under this Part must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified on the application of either party, with notice to the other, by the local authority.
(3) All parties involved in settling any difference must use best endeavours to do so within 60 days from the date of an expert first being proposed.
(4) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally.
(5) The expert must—
(a)invite the parties to make submission to the expert in writing within a specified period;
(b)permit a party to comment on the submissions made by the other party; and
(c)give reasons for his or her decision.
(6) The expert must consider where relevant—
(a)the development outcome sought by the undertaker;
(b)the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;
(c)the nature of the power sought to be exercised by the undertaker;
(d)the nature of any operation or development undertaken or proposed to be undertaken by any party other than the undertaker;
(e)the ability of any party other than the undertaker to undertake a relevant operation or development in a timely and cost-effective manner;
(f)the effects of the undertaker’s proposals on any party other than the undertaker and the effects of any operation or development undertaken by any party other than the undertaker;
(g)whether this Order provides any alternative powers by which the undertaker could reasonably achieve the development outcome sought in a manner that would reduce or eliminate adverse effects on any party other than the undertaker;
(h)the effectiveness, cost and reasonableness of proposals for mitigation arising from any party; and
(i)any other important and relevant consideration.
(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 44.
See section 64. The definition of “electrical plant” was amended by paragraph 38(3) of Schedule 6 to the Utilities Act 2000.
Section 102(4) was amended by section 96 of the Water Act 2003. Section 104 was amended by section 96 of, and Part 3 of Schedule 9 to, the Water Act 2003 and by section 42(3) of the Flood and Water Management Act 2010 (c.29).
1986 c.44. “Gas transporter” is defined in section 7. Section 7 was substituted by section 5 of the Gas Act 1995 (c.45) and was further amended by section 76 of the Utilities Act 2000.
“Water undertaker” is defined in Schedule 1 to the Interpretation Act 1978.
1993 c.43. Section 8 was amended by paragraph 4 of Schedule 17 and Part 4 of Schedule 31 to the Transport Act 2000 (c.38), paragraphs 3 and 5 of Schedule 2 to the Railways and Transport Safety Act 2003 (c.20) and paragraph 3 of Schedule 1 and Part 1 of Schedule13 to the Railways Act 2005 (c.14).
“Access agreement” is defined in section 83.
Paragraph 1(3A) was added to the code (Schedule 2 to the Telecommunications Act 1984 (c.12)) by paragraph 4 of Schedule 3 to the Communications Act 2003.
“The electronic communications code” is defined in section 106(1).
“Wilton Complex” is defined in article 2(1).
“Wilton protective provisions supporting plans” is defined in article 2(1).