32.—(1) The following provisions shall apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.E+W
(2) In this Part of this Schedule—
“the Agency” means the Environment Agency;
“building” includes any structure or erection or any part of a building, structure or erection;
“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” shall be construed accordingly;
“damage” includes (but is not limited to) scouring, erosion, loss of structural integrity and environmental damage to any drainage work or any flora or fauna dependent on the aquatic environment, and “damaged” is to be construed accordingly;
“drainage work” means any main river and includes any land which provides or is expected to provide flood storage capacity for any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for flood defence or tidal monitoring;
“main river” means all watercourses shown as such on the statutory main river maps held by the Agency and the Department for Environment Food and Rural Affairs including any structure or appliance for controlling or regulating the flow of water in or out of the channel;
“non–tidal main river” means any part of a main river that is not a tidal main river;
“tidal main river” means that part of a main river downstream of the normal tidal limit;
“plans” includes sections, drawings, specifications, calculations 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 on a Tidal Main River, 8 metres of a drainage work on a non–tidal main rivers 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 in any main river;
affect the conservation, distribution or use of water resources; or
affect the conservation value of the main river and habitats in its immediate vicinity; and
“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, basins, sewers and passages through which water flows except a public sewer.
Commencement Information
I1Sch. 10 para. 32 in force at 1.5.2020, see art. 1
33. The provisions within this Part shall not apply where a matter would fall within the remit of the Lead Local Flood Authority under the Land Drainage Act 1991 M1.E+W
34.—(1) Before beginning to construct any specified work, the undertaker must submit to the Agency for its approval plans of the specified work together with the details of the positioning of any structure within the main river and such further particulars available to it as the Agency may within 28 days of the receipt of the plans reasonably require.E+W
(2) Any submission made by the undertaker under sub–paragraph (1), and any approval given by the Agency under this sub–paragraph, may be in respect of all or part of a specified work.
(3) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency under sub–paragraph (1) or settled in accordance with paragraph 43 where applicable, and in accordance with any reasonable conditions or requirements specified under this paragraph.
(4) Any approval of the Agency required under this paragraph—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been refused if it is neither given nor refused within two months of the submission of the plans or receipt of further particulars if such particulars have been requested by the Agency for approval; and
(c)may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.
(5) 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 (4)(b).
Commencement Information
I3Sch. 10 para. 34 in force at 1.5.2020, see art. 1
35. Without limiting paragraph 34, the requirements which the Agency may have 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—E+W
(a)to safeguard any drainage work against damage; or
(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 any specified work.
Commencement Information
I4Sch. 10 para. 35 in force at 1.5.2020, see art. 1
36. No buildings will be erected within the area defined by the red dotted line annotated as ‘16m FRAP Line’ on the FRAPA drawings and no material will be stored, within the area defined by the red dotted line annotated as ‘16m FRAP Line’ on the FRAPA drawings, which could create a risk of damage to the integrity of the flood defence structure within this area.E+W
Commencement Information
I5Sch. 10 para. 36 in force at 1.5.2020, see art. 1
37.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 35, must be constructed—E+W
(a)without unreasonable delay in accordance with the plans approved under this Part of this Schedule; and
(b)to the reasonable satisfaction of the Agency,
and the Agency is entitled by its officer 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 prior to 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 of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker's own expense to comply with the requirements of this Part of this Schedule 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 41, if, within a reasonable period, being not less than 28 days beginning with the date when a notice under sub-paragraph (4) is served upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure reasonably incurred by the Agency 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 the case of an emergency, exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 43.
Commencement Information
I6Sch. 10 para. 37 in force at 1.5.2020, see art. 1
38.—(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 which is situated within the limits of deviation 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.E+W
(2) If any such drainage work which 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 sub–paragraph (5) and paragraph 41, 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) is received by the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any expenditure reasonably incurred by the Agency in so doing is recoverable from the undertaker.
(4) If there is any failure by the undertaker to obtain a necessary consent or comply with conditions imposed by the Agency in accordance with this Part of this Schedule the Agency may serve written notice requiring the undertaker to cease all or part of the specified works and the undertaker must upon receipt of the notice cease the specified works or part thereof until it has obtained the necessary consent or complied with the condition unless the cessation of the specified works or part thereof 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 the case of an emergency, exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 43.
(6) This paragraph does not apply to drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not proscribed by the powers of the Order from doing so.
Commencement Information
I7Sch. 10 para. 38 in force at 1.5.2020, see art. 1
39. Subject to paragraph 41, 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 that 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 impairment or damage and recover any expenditure reasonably incurred by the Agency in so doing from the undertaker.E+W
Commencement Information
I8Sch. 10 para. 39 in force at 1.5.2020, see art. 1
40. If by reason of construction of the specified work the Agency's access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the Agency to maintain the flood defence or use the equipment no less effectively than was possible before the obstruction within three days of the undertaker becoming aware of such obstruction, unless otherwise agreed with the Agency.E+W
Commencement Information
I9Sch. 10 para. 40 in force at 1.5.2020, see art. 1
41. The undertaker must indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur—E+W
(a)in the examination or approval of plans under this Part of this Schedule;
(b)in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule; and
(c)in the carrying out of any surveys or tests by the Agency which are reasonably required in connection with the construction of the specified works.
Commencement Information
I10Sch. 10 para. 41 in force at 1.5.2020, see art. 1
42.—(1) The undertaker is responsible for and must indemnify the Agency against all costs and losses not otherwise provided for in this Part of this Schedule which may be incurred or suffered by the Agency by reason of—E+W
(a)the construction, operation or maintenance of any specified works comprised within the authorised works or the failure of any such works comprised within them; or
(b)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised works or dealing with any failure of the authorised works.
(2) For the avoidance of doubt, in sub–paragraph (1)—
“costs” includes—
expenses and charges;
staff costs and overheads; and
legal costs;
“losses” includes physical damage.
(3) The undertaker must indemnify the Agency against all liabilities, claims and demands arising out of or in connection with the authorised works or otherwise out of the matters referred to in sub–paragraphs (1)(a) and (1)(b).
(4) For the avoidance of doubt, in sub–paragraph (3)—
“claims” and “demands” include as applicable—
costs (within the meaning of sub–paragraph (2)) incurred in connection with any claim or demand; and
any interest element of sums claimed or demanded;
“liabilities” includes—
contractual liabilities;
tortious liabilities (including liabilities for negligence or nuisance);
liabilities to pay statutory compensation or for breach of statutory duty; and
liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).
(5) 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, such agreement not to be unreasonably withheld or delayed.
(6) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan 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 of this Schedule.
Commencement Information
I11Sch. 10 para. 42 in force at 1.5.2020, see art. 1
43. Any dispute arising between the undertaker and the Agency under this Part of this Schedule must, if the parties agree, be determined by arbitration under article 42(3) (arbitration) of this Order, but otherwise must be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor on a reference to them by the undertaker or the Agency, after notice in writing by one to the other.E+W
Commencement Information
I12Sch. 10 para. 43 in force at 1.5.2020, see art. 1