The Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014

SECTION 2

London Power Networks plc

Application

1.  For the protection of the undertaker referred to in this sub-part of this Schedule the following provisions shall, unless otherwise agreed in writing between the promoter and the undertaker, have effect.

Interpretation

2.  In this Schedule—

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

“alternative apparatus” means alternative apparatus adequate to enable the undertaker to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by the undertaker which for the avoidance of doubt will include substation buildings and chambers;

(a)

“functions” includes powers and duties;

(b)

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

(c)

“plan” includes a section and description of the works to be executed;

“promoter” means the undertaker as defined in article 8 (benefit of order) of this Order;

“undertaker” means London Power Networks PLC.

3.  This part of this Schedule does not apply to apparatus in respect of which the relations between the promoter and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.

Temporarily stopped up streets

4.  Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 15 (temporary stopping up), the undertaker shall be at liberty at all times to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain, renew or use any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

5.—(1) The promoter, in the case of the powers conferred by articles 20 (protective work to buildings and structures) and 21 (remedial works to buildings, or apparatus or equipment), shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of the undertaker or any interruption in the supply of electricity by the undertaker is caused, the promoter shall—

(a) bear and pay the cost reasonably incurred by the undertaker in connection with the obstruction or reduction in convenience of the access to any apparatus and or making good such damage or restoring the supply; and

(b) subject to sub-paragraphs (2) and (3), make reasonable compensation to the undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker (including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay to its customers by statute and reasonable ex gratia payments made to customers in addition thereto) by reason or in consequence of any such obstruction or reduction in convenience of the access to any apparatus or damage or interruption.

(2) Nothing in sub-paragraph (1) shall impose any liability on the promoter with respect to any obstruction or reduction in convenience of the access to any apparatus or damage or interruption to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, contractors or agents.

(3) The undertaker shall give the promoter reasonable notice of any such claim or demand or intended ex gratia payment to be made and no settlement or compromise thereof shall be made without the consent of the promoter (such consent not to be unreasonably withheld or delayed) who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Acquisition of land

6.  Regardless of any provision in this Order or anything shown on the land plans, the promoter shall not acquire any apparatus otherwise than by agreement.

Removal of apparatus

7.—(1) If, in the exercise of the powers conferred by this Order, the promoter acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of the undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the promoter requires the removal of any apparatus placed in that land, it shall give to the undertaker not less than 56 days’ written notice of that requirement, together with a plan and draft programme 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 the undertaker reasonably needs to remove any of its apparatus) the promoter shall, subject to sub-paragraph (3), on terms no less favourable on the whole to the undertaker than those that relate to the apparatus to be removed afford to the undertaker the necessary—

(a) facilities and rights for the construction of alternative apparatus in other land of the promoter; and

(b) subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the promoter, or the promoter is unable to afford or procure 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 undertaker shall, on receipt of a written notice to that effect from the promoter, as soon as reasonably possible use its reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed, but for the avoidance of doubt such reasonable endeavours shall not include the exercise of the undertaker’s statutory powers unless the undertaker elects to do so.

(4) Any alternative apparatus to be constructed in land of the promoter under this part of this Schedule shall be constructed in accordance with the undertaker’s specifications, standards, policies and procedures and in such manner and in such line or situation as may be agreed between the undertaker and the promoter or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(5) The undertaker shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 63 (arbitration), and after the grant to the 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 no longer required by virtue of the construction and bringing into service of the alternative apparatus as required by the promoter to be removed under the provisions of this part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the promoter gives notice in writing to the undertaker 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 promoter in accordance with the exercise of the powers conferred by this Order, that work, instead of being executed by the undertaker, shall be executed by the promoter without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker provided that such works are undertaken by the promoter and or its subcontractors in accordance with the undertaker’s plans, specifications, standards and policies and is undertaken by contractors who are approved to work on the undertaker’s apparatus and carry insurances acceptable to the undertaker. Any superintendence given by the undertaker shall not reduce the promoter’s liability under this Schedule.

(7) Nothing in sub-paragraph (6) shall authorise the promoter 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.

Facilities and rights for alternative apparatus

8.—(1) Where, in accordance with the provisions of this part of this Schedule, the promoter affords to the undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as are no less favourable on the whole to the undertaker than those that related to the removed apparatus or as may otherwise be agreed between the promoter and the undertaker or in default of agreement settled by arbitration in accordance with article 63 (arbitration).

(2) In settling the terms and conditions mentioned in respect of alternative apparatus to be constructed in the authorised development, the arbitrator shall—

(a) give effect to all reasonable requirements of the promoter and the undertaker for ensuring the safety and efficient operation of the authorised development and the undertaker’s distribution network and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with the authorised development, its safety or its efficient operation; 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 the authorised development for which the alternative apparatus is to be substituted.

(3) If the facilities and rights to be afforded by the promoter 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 undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator shall make such provision for the payment of compensation by the promoter to the undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus— protection

9.—(1) Not less than 56 days before starting the execution of any works authorised by this Order that are near to, or will or may affect, any apparatus (wherever situated) the removal of which has not been required by the promoter under paragraph 7(2), the promoter shall submit to the undertaker a plan.

(2) In relation to works which will or may be situated over or within 90 metres measured in any direction of, or (wherever situated) may impose any load directly or indirectly upon any apparatus or remove from or impact upon support for any apparatus, the plan to be submitted to the undertaker under sub-paragraph (1) shall be detailed describing—

(a) the exact position of the works;

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

(c) the manner of their construction or renewal;

(d) the position of all apparatus within 90 metres of the works or upon which the works will or may impose a load or may remove from or affect support for any apparatus;

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

(f) the proposed programme for carrying out such works; and

(g) the proposed measure to mitigate the impact of such works on the undertaker’s apparatus.

(3) The promoter shall not commence the construction or renewal of any works to which subparagraph (2) applies until the undertaker has given written approval of the plan so submitted.

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

(a) may be given subject to reasonable conditions for any purpose mentioned in subparagraph (6); and

(b) shall not be unreasonably withheld.

(5) If the undertaker fails to respond to a plan submitted under subparagraph (1) within 35 days of its submission, the promoter may send a written reminder to the undertaker, and if the undertaker has is neither given nor refused its approval within 14 days of the issue of such reminder, such approval it shall be deemed to have been given.

(6) In relation to a work to which sub-paragraph (2) applies, the undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus.

(7) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) (or settled by arbitration in accordance with article 63 (arbitration), as amended from time to time by agreement between the promoter and the undertaker) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (8) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it to enable the safe, efficient and economic operation, maintenance and replacement of such apparatus, and the undertaker shall be entitled to watch and inspect the execution of those works.

(8) Any requirements made by the undertaker under sub-paragraph (7) shall be made within a period of 56 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

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

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

(11) The promoter shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (7) insofar as is reasonably practicable in the circumstances.

Expenses

10.—(1) Subject to the following provisions of this paragraph, the promoter shall repay to the undertaker the reasonable costs and expenses actually incurred (including both internal and external costs and expenses) by the undertaker in reviewing any plans or proposals submitted to it in connection with this part of this Schedule, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in this part of this Schedule.

(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Schedule, that value being calculated by the undertaker after removal.

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the promoter (such agreement not to be unreasonably withheld or delayed) or, in default of agreement, is not determined by arbitration in accordance with article 63 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the undertaker by virtue of sub-paragraph (1) shall be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph (3)—

(a) an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus;

(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall be treated as if it also had been agreed or had been so determined; and

(c) where the replacement of existing apparatus with apparatus of a better type, of greater capacity or of greater dimensions is dictated by the undertaker’s current written standards, policies or procedures in place at the time of replacement, this shall not be treated as a placing of apparatus of a better type, of greater capacity or of greater dimensions than those of the existing apparatus.

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

(6) The undertaker shall from time to time submit to the promoter estimates of the reasonable expenses referred to in this paragraph 10 (expenses) that it reasonably expects to incur.

(7) The promoter and the undertaker will use their reasonable endeavours to agree the amount of any estimates submitted by the undertaker in accordance with sub-paragraph (6) within 21 days following receipt of such estimates by the promoter. The promoter shall confirm its agreement to the amount of such estimates in writing and shall not unreasonably withhold or delay such agreement.

(8) Work in relation to which an estimate is submitted under sub-paragraph (6) shall not be commenced until the estimate is agreed under sub-paragraph (7) (unless this requirement is waived by the promoter in writing) and a purchase order number up to the value of the approved estimate has been issued by the promoter to the undertaker. The promoter shall issue the purchase order number within 28 days of the estimate being agreed under sub-paragraph (7) and in any event not less than 30 days before work is due to commence.

(9) If the undertaker at any time becomes aware that an estimate agreed under sub-paragraph (7) has been or is likely to be exceeded, it shall as soon as reasonably practicable notify the promoter and shall submit a revised estimate of the relevant expenses to the promoter for agreement. The provisions of sub-paragraphs (6) to (8) (mutatis mutandis) shall apply to such revised estimate, except that the period referred to in sub-paragraph (7) shall be reduced to 14 days.

(10) The undertaker may from time to time issue to the promoter invoices for expenses incurred up to the date of the relevant invoice, up to the amount of the relevant estimate agreed under sub-paragraph (7) or (as the case may be) the revised estimate agreed under sub-paragraph (9). Invoices issued to the promoter for payment shall—

(a) specify the approved purchase order number;

(b) include reasonable supporting evidence that such sums as have been invoiced have been incurred or are committed to be incurred in accordance with the agreed estimate; and

(c) be paid within 28 days of their being received by the promoter’s accounts department.

(11) The promoter shall not be responsible for meeting costs or expenses in excess of an estimate agreed under sub-paragraph (7) (and the undertaker shall not be obliged to incur any costs or expenses in excess of such agreed estimate) unless and until (and then only to the extent that) the promoter has agreed a revised estimate pursuant to sub-paragraph (9).

Compensation

11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Order, 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 the undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the undertaker, the promoter shall—

(a) bear and pay the cost reasonably incurred by the undertaker in making good such damage or restoring the supply; and

(b) subject to sub-paragraphs (2) and (3), make reasonable compensation to the undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker, by reason or in consequence of any such damage or interruption including but not limited to legal costs, adjustments to any regulatory incentives that may be due to the undertaker or payable by the undertaker and payments that the undertaker may be required to pay by statute and reasonable ex gratia payments made to customers.

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

(3) The undertaker shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent (such not to be unreasonably withheld or delayed) of the promoter who, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Enactments and agreements

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

Co-operation

13.  Where in consequence of the proposed construction of any of the authorised development, the promoter or the undertaker requires the removal of apparatus under paragraph 7(2) or the undertaker makes requirements for the protection or alteration of apparatus under paragraph 9(2), the promoter shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and the undertaker shall use its best endeavours to co-operate with the promoter for that purpose.

Access

14.  If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed, the promoter shall provide such alternative means of access to such apparatus as will enable the undertaker to operate, maintain, repair or replace or use the apparatus no less safely, efficiently, economically and effectively than was possible before such obstruction.

Arbitration

15.  Any difference or dispute arising between the undertaker and the promoter under this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the promoter, be referred to and settled by arbitration under article 63 (arbitration).