31. For the protection of DCC referred to in this Part 3 of Schedule 9, the following provisions will, unless otherwise agreed in writing between the undertaker and DCC, have effect.
32. In this Part of this Schedule—
“acceptable insurance” means a policy of public liability/third party liability insurance effected and maintained by the undertaker and available in the market on commercially reasonable terms having regard (inter alia) to premiums required and the policy terms obtainable, with a level of insurance cover to be agreed between the undertaker and DCC, during the construction of the works pursuant to this Order with a reputable insurer and with DCC named as an insured party under the policy;
“accessories” has the same meaning as that set out in section 219 WIA 1991 but also includes any feature or aspect of a design that is intended to receive or facilitate the receipt of rainwater or surface water and which is part of a sustainable drainage system;
“DCC apparatus” means all apparatus or accessories vested in or belonging to DCC for the purpose of carrying on its statutory undertaking including reservoirs, water treatment works and waste water treatment works;
“clearance area” means the area of land—
within 3 metres either side of the centre line of any public sewer or public water main that is less than 300mm in diameter;
within 6 metres either side of a public sewer or public water main where the public sewer or public water main is between 300mm and 600mm in diameter; or
within 9 metres either side of the centre line of a rising main;
“DCC” means Dŵr Cymru Cyfyngedig, a limited company registered in Wales under Company No. 2366777 and having its registered office at Pentwyn Road, Nelson, Treharris, Mid Glamorgan CF46 6LY or its properly authorised agents or sub-contractors;
“draft specification” means a detailed plan, cross-section and description of the works to be prepared by the undertaker (including, without limitation, a method statement and risk assessment setting out the intention in respect of the works, construction methods and programmes, position of the affected DCC apparatus and intended works and a statement that to the best of the undertaker’s knowledge, and having used all reasonable care and skill to plan the works, the works will not cause damage to the DCC apparatus);
“functions” has the same meaning as in section 219 WIA 1991 and includes powers and duties;
“in” in a context referring to DCC apparatus in land includes a reference to DCC apparatus under, over or upon land;
“sustainable drainage system” means any structure designed to receive rainwater and other surface water which structure is to include any feature or aspect of design that is intended to receive or facilitate the receipt of rainwater except a public sewer or a natural watercourse;
“WIA 1991” means the Water Industry Act 1991 c.56 as amended; and
“works” means any works forming part of the authorised development in, on, over or under any land purchased, held, or used under this Order that are near to, or will or may in any way affect any DCC apparatus together with all ancillary actions relating hereto.
33.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker must not acquire any DCC apparatus or its accessories or override or extinguish any easement or other interest of DCC or acquire any land or other interest of DCC identified in the book of reference or create any new rights over the same otherwise than by agreement with DCC in accordance with the provisions of this Schedule.
(2) Sub-paragraph (1) does not apply to the powers conferred on the undertaker by this Order to interfere temporarily with DCC’s rights to access DCC apparatus or accessories but subject always to each sub-paragraph of paragraphs 37 and 38 of this Part and to the undertaker giving DCC 28 days’ notice of such interference.
34.—(1) Regardless of any provision of this Order and this Schedule the undertaker must comply fully with all provisions of the WIA 1991 in relation to any use of, any connection with or any actions or omissions which in any way affect the DCC apparatus and nothing in this Order releases the undertaker from the requirement to comply with the provisions of the WIA 1991 in relation to any use of, any connection with or any actions or omissions which in any way affect the DCC apparatus, including without limitation—
(a)sections 41-44 of the WIA 1991 in respect of water main requisitions;
(b)section 45 of the WIA 1991 in respect of any connections to a water main;
(c)sections 98-101 of the WIA 1991 in respect of sewer requisitions;
(d)section 102 of the WIA 1991 in respect of the adoption of sewers and disposal works;
(e)section 104 of the WIA 1991 in respect of the adoption of any sewers, drains or sewage disposal works as part of the development;
(f)sections 106 to 109 of the WIA 1991 (inclusive) in respect of any connections to public sewers;
(g)section 111 of the WIA 1991 in respect of the restrictions on use of public sewers;
(h)sections 158 and 159 of the WIA 1991 in respect of statutory rights of access to DCC apparatus;
(i)section 174 of the WIA 1991 in respect of offences of interference with works etc;
(j)section 178 of the WIA 1991 in respect of obstruction of sewerage works etc; and
(k)section 185 of the WIA 1991 in respect of the removal, diversion or alteration of DCC apparatus.
(2) The arbitration provisions at article 38 or specified in this Schedule do not apply where DCC uses a warrant of entry in accordance with the provisions of the WIA 1991.
35.—(1) Not less than 28 days before starting the execution of any works that are within the clearance area or will, or could reasonably foreseeably affect, any DCC apparatus the removal or alteration of which has not been required by the undertaker under paragraph 34(1)(k), the undertaker must submit to DCC written notice together with a draft specification.
(2) DCC must examine the draft specification submitted under sub-paragraph (1) and give its written consent or proposed amendments (each not to be unreasonably withheld or delayed) to the draft specification (including the proposed commencement date and anticipated completion date) within 28 days from the date of receipt (and in the event of amendments the process in this sub-paragraph (2) must be repeated where those amendments are not accepted). For the avoidance of doubt, DCC’s proposed amendments may include such reasonable requirements for the alteration (including but not limited to the extension of DCC apparatus) or otherwise for the protection of DCC apparatus, or for securing access to it.
(3) Once approved under sub-paragraph (2), the draft specification is to be the specification and the works must be executed only in accordance with the specification and such reasonable requirements as may be made in accordance with sub-paragraph (2) and DCC is entitled to watch and inspect the execution of those works.
(4) Nothing in this paragraph 35 precludes 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 draft specification instead of the draft specification previously submitted, and having done so the provisions of this paragraph 35 apply to and in respect of the new draft specification.
(5) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency provided it has complied with paragraph 36 below save that the undertaker must comply with sub-paragraphs (1) and (3) above in so far as is reasonably practicable in the circumstances.
(6) DCC may opt to carry out any temporary and/or protective works specified under sub-paragraph (2) to DCC apparatus, and if DCC opts to do so it must—
(a)agree the scope and timings of the works with the undertaker (and the undertaker must not unreasonably withhold or delay its agreement to the same);
(b)provide an invoice together with supporting evidence of the estimated costs of the works on the basis of which it must agree with the undertaker the reasonable costs of the works to be met by the undertaker;
(c)following agreement and payment of the costs, DCC must as soon as reasonably practicable carry out and complete the works; and
(d)notify the undertaker immediately in writing upon completion of the temporary and/or protective works.
(7) Only those contractors that satisfy DCC’s reasonable health & safety requirements are permitted to make openings into and/or connections with and/or carry out any works on or within any public sewer or drain vested in DCC unless otherwise agreed with DCC.
(8) Only DCC is permitted to make openings into and/or connections with and/or carry out any works on or within any public water main vested in DCC unless otherwise agreed with DCC.
(9) Where DCC apparatus will be affected by the works the undertaker must determine the exact location of DCC apparatus prior to any works being carried out by the undertaker and the undertaker should contact DCC where trial holes are required and such trial holes must be constructed at the undertaker’s expense.
(10) Any affected DCC apparatus which is no longer required by DCC but is not removed must be transferred to the undertaker by way of a deed of transfer from DCC at the undertaker’s expense and on such terms as DCC reasonably requires.
36. DCC is entitled to instruct the undertaker to suspend the works if in DCC’s reasonable opinion the actions of the undertaker, or those of its contractor(s) or subcontractor(s) in carrying out the works, have caused damage to any DCC apparatus and/or are likely to cause or result in damage to any DCC apparatus and/or have caused or are likely to cause damage to the environment arising as a result of damage to DCC apparatus. In the event of such instruction being given by DCC—
(a)the undertaker must procure that it and its contractor(s) and subcontractor(s) are to forthwith suspend or cease the works having due regard to health and safety factors and discuss and agree with DCC the remedial actions required prior to resuming the works;
(b)the undertaker and DCC must act reasonably and without delay in discussing and agreeing any remedial actions required prior to resuming the works;
(c)DCC must submit to the undertaker within 5 days following the suspension, a written notice specifying the reasons for suspending the works;
(d)in the event that DCC fails to supply the written notice within 5 days of suspension DCC’s instruction to suspend the works will be void and the undertaker will be entitled to recommence the works;
(e)DCC must commence, carry out and complete any remedial works pursuant to sub-paragraph (a) as soon as reasonably practicable and DCC must give the undertaker notice immediately upon completion of such remedial works and on receipt of such notice the undertaker will be entitled to resume the works; and
(f)DCC is entitled to reclaim all reasonable costs of all remedial works undertaken in accordance with this paragraph 36.
37.—(1) In the event that either the undertaker or DCC (for the purpose of this paragraph 37 “the party” or together “the parties”) wishes to take any action which would impact on the ability of the undertaker to carry out the development or DCC to carry out its statutory functions, the parties must use reasonable endeavours to cooperate with one another in order to align work streams so to minimise or avoid disruption to the other party’s works. In respect of the references to ‘work’ and ‘works’ in this sub-paragraph (1), to the extent that this refers to ‘work’ or ‘works’ to be undertaken by DCC, the definition of works in paragraph 32 of this Part does not apply.
(2) Subject to paragraph 38, differences or disputes arising between the undertaker and DCC under this Schedule must, unless otherwise agreed in writing between the undertaker and DCC, be determined by arbitration in accordance with article 38 (arbitration) of the Order.
38.—(1) The undertaker is permitted to carry out emergency works provided that it first notifies DCC of the proposed emergency works. For the avoidance of doubt, in the event that DCC suffers any loss, cost or damage as a result of the emergency action taken by the undertaker without prior notification the indemnity in paragraph 40 shall apply.
(2) DCC must at all times be permitted to carry out any emergency works in relation to its DCC apparatus within the Order Limits in accordance with Part II Schedule 6 WIA 1991.
(3) Emergency works required in order for DCC to fulfil its statutory functions under sub-paragraph (2) are to take precedence over works to be carried out by the undertaker and, in such circumstances, the undertaker must reschedule its works accordingly.
(4) In respect of the references to ‘work’ and ‘works’ in this paragraph 38, to the extent that this is ‘work’ or ‘works’ to be undertaken by DCC, the definition of works in paragraph 32 of this Part does not apply.
39. The undertaker shall not commence any works under paragraph 35(1) to this Part unless and until the undertaker has procured acceptable insurance.
40.—(1) Subject to sub-paragraphs (3), (4), (5) and (6), the undertaker shall indemnify and hold harmless DCC against all claims demands costs damages expenses penalties and losses which DCC may have or sustain or become liable for in consequence of works under paragraph 35(1) to this Part in respect of—
(a)the commencement, carrying out, execution or retention of the works or any breach of this Part relating to the performance of the works and shall pay compensation for loss, damage or injury caused by the actions or default of the undertaker, its contractors, subcontractors, licensees, agents and invitees relating to the performance of the works;
(b)Damage to the environment caused by the undertaker during any works including but not limited to pollution and/or contamination; and
(c)any breach of any stipulation or otherwise of any deeds of grant (or any renewal of any of the deeds of grant made on substantially the same terms provided that DCC has supplied the undertaker with a copy of the new document) arising from the works.
(2) Subject to sub-paragraphs (3), (4), (5) and (6), the undertaker shall bear and pay the costs reasonably incurred by DCC in making good damage to DCC apparatus or restoring an interruption in the supply provided by DCC.
(3) Nothing in sub-paragraph (1) shall impose any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of DCC, its officers, servants, contractors or agents.
(4) DCC shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made without the consent of the undertaker and DCC shall use all reasonable endeavours to mitigate any claims, demand, costs, damages, expenses and losses for which the undertaker may be liable under this paragraph 40.
(5) Neither the undertaker, nor any of its officers, employees or agents shall in any circumstances whatsoever be liable to DCC for any indirect or consequential loss.
(6) Nothing in this Part shall affect the provisions of any enactment or agreement regulating the relations between the undertaker and DCC in respect of any DCC apparatus laid or erected in land belonging to the undertaker on the date on which the Order is made.