The M25 Junction 28 Development Consent Order 2022

SCHEDULES

Article 2

SCHEDULE 1 E+W AUTHORISED DEVELOPMENT

Commencement Information

I1 Sch. 1 in force at 6.6.2022, see art. 1

The authorised development comprises a nationally significant infrastructure project as defined in sections 14 and 22 of the 2008 Act and associated development, as defined in section 115(2) of the 2008 Act, comprising—

HIGHWAY WORKS – A12 CARRIAGEWAY

In the London Borough of Havering and the Borough of Brentwood

Work No. 1 — Improvements to a stretch of the existing A12 eastbound carriageway, along a length of 1,800 metres, commencing at a location situated 15 metres to the west of Woodstock Avenue and continuing eastwards to a point situated 160 metres to the west of the existing Wigley Bush Lane overbridge, as shown on sheets 1 and 2 of the works plans.

In the London Borough of Havering

Work No. 2 — Realignment of the existing A12 eastbound off-slip, along a length of 760 metres, inclusive of the diverge, commencing at a location situated 265 metres west of the existing off-slip, and terminating at the existing circulatory carriageway of the M25 Junction 28 roundabout, as shown on sheet 1 of the works plans. Work No. 2 includes a footway within the verge, a new bridge (Maylands bridge) to carry the realigned A12 eastbound off-slip over Work No. 6 and the extension of the existing Grove culvert not exceeding 80 metres in length, beneath the realigned A12 eastbound off-slip.

In the Borough of Brentwood

Work No. 3 — Improvements to a stretch of the existing A12 eastbound on-slip, along a length of 550 metres, commencing at the existing on-slip offside kerb at the circulatory carriageway of the M25 Junction 28 roundabout and terminating at a location situated 160 metres to the west of the existing Wigley Bush Lane Overbridge, as shown on sheets 1 and 2 of the works plans.

In the London Borough of Havering

Work No. 4 — Improvements to the existing A12 westbound carriageway, at a location situated 230 metres east of Maylands Way, as shown on sheet 1 of the works plans comprising the installation of new traffic signs either side of the carriageway.

HIGHWAY WORKS - M25 JUNCTION 28 ROUNDABOUT

In the London Borough of Havering

Work No. 5 — Improvements to the existing circulatory carriageway of the M25 Junction 28 roundabout, along a length of 610 metres, at the location shown on sheet 1 of the works plan.

HIGHWAY WORKS – NEW M25 JUNCTION 28 LOOP ROAD

In the London Borough of Havering

Work No. 6 — A new loop road, 1,450 metres in length, inclusive of the diverge and merge, connecting the existing M25 northbound carriageway and the existing A12 eastbound carriageway, commencing at the northern end of the Brook Street Viaduct and terminating at the western end of Poplars West bridge; running generally northwards, passing over the proposed M25 northbound on-slip (Work No. 8), then looping west of the M25 carriageway, passing over the realigned Weald Brook (Work No. 23C), then looping southwards, passing beneath Work No. 2, passing over the Weald Brook and the Ingrebourne River before tying into the existing A12 eastbound carriageway at the existing Poplar West bridge, as shown on sheet 1 of the works plans. Work No. 6 includes—

(a) a new bridge, labelled ‘Alder Wood bridge’ on sheet 1 of the works plans, to carry Work No. 6 over the M25 northbound on-slip (Work No. 8);

(b) a new underpass, labelled ‘Grove Farm Underpass’ on sheet 1 of the works plans, to carry Work No. 6 over a proposed access track (Work No. 14);

(c) a new bridge, labelled ‘Duck Wood bridge’ on sheet 1 of the works plans, to carry Work No. 6 over the realigned Weald Brook (Work No. 23C); and

(d) a new bridge, labelled ‘Grove bridge’ on sheet 1 of the works plans, to carry Work No. 6 over the realigned Weald Brook (Work No. 23B) and Ingrebourne River (Work No. 23D).

HIGHWAY WORKS – M25 CARRIAGEWAY

In the London Borough of Havering and the Borough of Brentwood

Work No. 7 — Improvements to a stretch of the existing M25 northbound carriageway, commencing at the northern end of the Brook Street viaduct on the M25 mainline and continuing north westwards for a length of 1,250 metres as shown on sheets 1 and 3 of the works plans.

In the London Borough of Havering

Work No. 8 — Realignment of a stretch of the existing M25 northbound on-slip, along a length of 1,230 metres, inclusive of the merge, including the extension of two existing culverts, commencing at the existing circulatory carriageway of the M25 Junction 28 roundabout and terminating at a point 1,180 metres north of the existing Brook Street Viaduct, as shown on sheets 1 and 3 of the works plans.

M25 GANTRIES AND SIGNAGE

In the London Borough of Havering

Work No. 9 — A new gantry, or similar signage, over the M25 carriageway, at a location situated 215 metres north of the existing Brook Street Viaduct of the M25 Junction 28 roundabout, as shown on sheet 1 of the works plans.

Work No. 10 — A new gantry, or similar signage, over the M25 carriageway, at a location situated 1,272 metres north of the existing Brook Street Viaduct as shown on sheet 3 of the works plans.

Work No. 11 — A new gantry, or similar signage, over the M25 carriageway, at a location situated 10 metres north of the Brook Street Viaduct, as shown on sheet 1 of the works plans.

HIGHWAY WORKS – M25 NORTHBOUND OFF-SLIP

In the London Borough of Havering and the Borough of Brentwood

Work No. 12 — Improvements to the existing M25 motorway northbound off-slip, along a length of 166 metres, commencing at a location situated 125 metres north of the Poplar Railway bridge and continuing north westwards until the existing circulatory carriageway of the M25 Junction 28 roundabout, as shown on sheet 1 of the works plans.

OTHER HIGHWAYS, PUBLIC RIGHTS OF WAY AND PRIVATE MEANS OF ACCESS

In the London Borough of Havering

Work No. 13 — A new private means of access, 600 metres in length, commencing at Work No. 19B and continuing in a north westerly direction, along the outer alignment of Work No. 6 and terminating in a north-eastwards and, separately, north-westwards direction at a location south of Work No. 24A and west of the proposed Duck Wood bridge, as shown on sheet 1 of the works plans.

Work No. 14 — A new private means of access 519 metres in length, commencing at a point situated 100 metres north of the existing Grove Farm access, passing through the proposed Grove Farm Underpass (Work No. 6) and terminating 125 metres north of the aforementioned Underpass in a westwards and, separately, southwards direction, as shown on sheets 1 and 3 of the works plans. Work No. 14 includes a secondary section of private means of access, 30 metres in length and branching westwards from a location to the northwest of the proposed Grove Farm Underpass (Work No. 6) and terminating in a northwards and, separately, westwards direction as shown on sheet 1 of the works plans.

Work No. 15 — Alterations to the existing egress from Grove Farm, 87 metres in length, commencing at a point situated to the north west of the existing Grove Farm residential property and terminating at Work No. 2, as shown on sheet 1 of the works plans.

Work No. 16 — Alterations to the existing access and egress serving land situated to the immediate north of the A12, commencing at a new junction with the new private means of access (Work No. 19A), at a point situated 42 metres from the junction of the aforementioned new private means of access and the A12, and continuing northwards for a distance of 35 metres in length as shown on sheet 1 of the works plans.

EARTH WORKS

In the London Borough of Havering

Work No. 17 — Not used

Work No. 18 — Construction of an environmental bund over an area of land 25,565 square metres in area, situated alongside the new loop road (Work No. 6) and to the north of Work No. 19B as shown on sheet 1 of the works plans.

DRAINAGE WORKS

In the London Borough of Havering

Work No. 19A — A new private means of access, 290 metres in length, commencing at a new junction with the A12 eastbound carriageway situated at a location lying 50 metres to the east of the existing access to Maylands Golf Course and terminating at Work No. 19B, as shown on sheet 1 of the works plans.

Work No. 19B — A new attenuation pond, together with associated private means of access and drainage facilities, 2,600 square metres in area, and situated at a location to the north of Work No. 2 and west of Work No. 6, as shown on sheet 1 of the works plans.

Work No. 20A — A new private means of access, 65 metres in length, commencing at a location situated 110 metres south west of Duck Wood bridge and terminating at Work No. 20B, as shown on sheet 1 of the works plans.

Work No. 20B — A new attenuation pond, together with associated private means of access and drainage facilities, 7,000 square metres in area, and situated at a location to the west of the Weald Brook, as shown on sheet 1 of the works plans.

Work No. 21A — A new private means of access, 40 metres in length, commencing at a location situated 30 metres south of Grove Farm Underpass and terminating at Work No. 20B as shown on sheet 1 of the works plans.

Work No. 21B — A new attenuation pond, together with associated private means of access and drainage facilities, 4,200 square metres in area, and situated at a location to the north east of the Weald Brook, as shown on sheet 1 of the works plans.

Work No. 22 — A new drainage outfall pipe, 50 metres in length, between Work No. 21B and Weald Brook, as shown on sheet 1 of the works plans.

REALIGNMENT OF WATERCOURSES

In the London Borough of Havering

Work No. 23A — Realignment of a stretch of the Weald Brook, along a length of85 metres, commencing at a location situated to the immediate east of Work No. 20B as shown on sheet 1 of the works plans.

Work No. 23B — Realignment of a stretch of the Weald Brook, along a length of 250 metres, commencing at a location situated within the proposed loop road (Work No. 6), and passing beneath Work No. 2 at the location of the proposed new Maylands bridge and beneath Work No. 6 at the location of the proposed Grove bridge, as shown on sheet 1 of the works plans.

Work No. 23C — Realignment of a stretch of the Weald Brook, along a length of 40 metres, at a location situated beneath Work No. 6 at the location of the proposed Duck Wood bridge, as shown on sheet 1 of the works plans.

Work No. 23D — Realignment of a stretch of the Ingrebourne River, along a length of 200 metres, commencing at a point situated north of the A12 (Work No. 1), beneath the proposed Grove bridge on Work No. 6, and terminating at the location of the Grove Culvert extension, proposed as part of Work No. 2, as shown on sheet 1 of the works plans.

ENVIRONMENTAL MITIGATION AND COMPENSATION

In the London Borough of Havering

Work No. 24A — A new flood compensation area, 2,100 square metres in area, and situated to the immediate northwest of Work No. 6, as shown on sheets 1 and 3 of the works plans.

Work No. 24B — A new flood compensation area, 7,800 square metres in area, and situated within the proposed loop road (Work No. 6), to the west of the realigned Weald Brook (Works Nos. 23A and 23B), as shown on sheet 1 of the works plans.

Work No. 25 — Environmental works, including the construction of ecological compensation areas, 90,000 square metres in area, on land situated to the west and northwest of Work No. 6, as shown respectively on sheets 1 and 3 of the works plans.

Work No. 26 — A new ecological mitigation area, 3,500 square metres in area, on land situated between Work No. 2 and Work No. 6, as shown on sheet 1 of the works plans.

Work No. 27 — A new pond, for environmental mitigation purposes, 500 square metres in area, and situated at a location to the north of Work No. 28 as shown on sheet 3 of the works plans.

Work No. 28— A new pond, for environmental mitigation purposes, 500 square metres in area, and situated at a location to the south of Work No. 27 and west of Work No. 24A as shown on sheet 3 of the works plans.

UTILITIES

In the London Borough of Havering

Work No. 29 — Diversion of an existing underground Cadent high pressure (33bar) gas pipeline, through installation of a new underground high pressure (33bar) gas pipeline, 860 metres in length, commencing at a point situated west of Weald Brook and south of the A12 (Work No. 1) and terminating north of Work No. 24A as shown on sheets 1 and 3 of the works plans.

Work No. 30 — Diversion underground of an existing UKPN 11 kV overhead electric line, 890 metres in length, commencing at a point situated at the existing UKPN sub-station north of the existing Grove Farm access as shown on sheet 1 of the works plans and terminating adjacent to the southern proposed culvert extension to the west of the M25 northbound carriageway as shown on sheet 3 of the works plans.

Work No. 31 — Works associated with the provision of ducting and cabling between the proposed new gantry (Work No. 10) and the existing motorway communications cabinet on the M25 northbound, situated at a location 825 metres northwards of the existing M25 Northbound on-slip at M25 Junction 28, as shown on sheet 3 of the works plans.

ACCOMMODATION WORKS

Work No. 32 — Accommodation works to provide replacement facilities for Maylands Golf Course, over an area of land 54,578 square metres in area and situated at a location to the west of Work No. 29 as shown on sheets 1 and 3 of the works plans.

In connection with the construction of any of the works mentioned above, such ancillary development within the Order limits which does not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement, consisting of—

(a) alteration of the layout of any street permanently or temporarily, including but not limited to increasing or reducing the width of the carriageway of any street by increasing or reducing the width of any kerb, footway, cycle track or verge within the street; and altering the level of any such kerb, footway, cycle track, or verge within the street;

(b) works required for the strengthening, improvement, protection, repair, maintenance or reconstruction of any street;

(c) works for the strengthening, alteration or demolition of any existing bridge, building or structure;

(d) the remediation of any carriageway made redundant by the stopping up of any highway or means of access;

(e) ramps, means of access (including private means of access), footpaths, footways, cycle tracks, non-motorised links and crossing facilities;

(f) embankments, cuttings, viaducts, bridges, aprons, abutments, shafts, foundations, retaining walls, barriers (including road restraint, safety barriers), parapets, wing walls, new and replacement highway lighting, roadside signage, fencing and drainage works (including carrier drains, filter drains, outfalls, pumping stations, culverts headwalls, ditches, attenuation earthwork ditches, soakaways, pollution control devices, and catch pits);

(g) the erection of highway boundary fencing, including gates, anti-dazzle fencing and the realignment of existing highway fencing;

(h) street works, including breaking up or opening a street, or any sewer, drain or tunnel under it, and tunnelling or boring under a street;

(i) works to place, alter, divert, relocate, remove or maintain street furniture, apparatus, services, plant and other equipment in a street, or in other land, including mains, sewers, drains, pipes, hydrants, cables, ducts and associated cabinets, CCTV, radar and traffic detection equipment and lights;

(j) works to alter the course of, or otherwise interfere with a watercourse;

(k) landscaping, noise barriers, works associated with the provision of ecological mitigation, and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

(l) works for the benefit or protection of land affected by the authorised development;

(m) site preparation works, site clearance (including fencing, vegetation removal, demolition of existing structures and the creation of alternative footpaths), earthworks (including soil stripping and storage and site levelling) and remediation of any contamination;

(n) the felling of trees and hedgerows;

(o) the establishment of construction compounds and working sites, storage areas, temporary vehicle parking, construction fencing, hoarding and perimeter enclosure, security fencing, construction-related buildings, welfare facilities, temporary worker accommodation facilities for vehicle recovery crew, vehicle recovery, construction lighting, haulage roads; borrow pits and other buildings, machinery, apparatus, works and conveniences;

(p) the provision of other works including pavement works, carriageway surfacing, kerbing and paved areas works, signing, signals, the modification or demolition of existing gantries, new and replacement highway safety barriers, road markings, traffic management measures including temporary roads, temporary earthworks and construction site accesses and such other works as are associated with the construction of the authorised development; and

(q) such other works, working sites storage areas, works of demolition or works of whatever nature, as may be necessary or expedient for the purposes of, or for purposes associated with or ancillary to, the construction, operation or maintenance of the authorised development.

Article 3

SCHEDULE 2 E+W REQUIREMENTS

PART 1 E+W REQUIREMENTS

Interpretation E+W

1.  In this Schedule—

“completed” in relation to a relevant part of the authorised development means the relevant part of the authorised development is completed and fully open to traffic and “completion” is to be construed accordingly;

“contaminated land” has the same meaning as in section 78A (preliminary) of the Environmental Protection Act 1990(1);

“European protected species” has the same meaning as in regulations 42 (European protected species of animals) and 46 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2017(2);

“Ground Investigation Report” means the document of that description certified by the Secretary of State as the Ground Investigation Report for the purposes of this Order;

“HEMP” means the Handover Environmental Management Plan;

“LEMP” means the Landscape and Ecology Management and Monitoring Plan;

“Manual of Contract Documents for Highway Works” means the document of that name published electronically by or on behalf of the strategic highway authority for England or any equivalent replacement published for that document;

“nationally protected species” means any species protected under the Wildlife and Countryside Act 1981(3);

“Outline Arboricultural Method Statement” means the document of that description certified by the Secretary of State as the Outline Arboricultural Method Statement for the purposes of this Order;

“Outline CEMP” means the document of that description certified by the Secretary of State as the Outline Construction Environmental Management Plan for the purposes of this Order;

“Outline Archaeological Management Plan” means the document of that description certified by the Secretary of State as the Outline Archaeological Management Plan for the purposes of this Order;

“Outline LEMP” means the document of that description certified by the Secretary of State as the Outline Landscape and Ecology Management and Monitoring Plan for the purposes of this Order;

“Outline Traffic Management Plan” means the document of that description certified by the Secretary of State as the Outline Traffic Management Plan for the purposes of this Order;

“Preliminary Environmental Design” means the document of that description certified by the Secretary of State as the Preliminary Environmental Design for the purposes of this Order; and

“REAC” means the document of that description certified by the Secretary of State as the Register of Environmental Actions and Commitments for the purposes of this Order.

Commencement Information

I2 Sch. 2 para. 1 in force at 6.6.2022, see art. 1

Time limits E+W

2.  The authorised development must commence no later than the expiration of 5 years beginning with the date that this Order comes into force.

Commencement Information

I3 Sch. 2 para. 2 in force at 6.6.2022, see art. 1

Detailed design E+W

3.—(1) The authorised development must be designed in detail and carried out so that it is compatible with the preliminary scheme design shown on the engineering drawings and sections and the report mentioned in sub-paragraph (3), unless otherwise agreed in writing by the Secretary of State, provided that the Secretary of State is satisfied that any amendments to the engineering drawings and sections showing departures from the preliminary scheme design (arising from the report or otherwise) would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(2) Where amended details are approved by the Secretary of State under sub-paragraph (1), those details are deemed to be substituted for the corresponding engineering drawings and sections and the undertaker must make those amended details available online for inspection by members of the public.

(3) The report mentioned in sub-paragraph (1), is a report to be prepared by the undertaker of its findings following a review of the design of the bridges and structures of the authorised development; the review to be carried out in consultation with the relevant planning authority and the relevant highway authority.

Commencement Information

I4 Sch. 2 para. 3 in force at 6.6.2022, see art. 1

Construction Environmental Management Plan E+W

4.—(1) No part of the authorised development is to commence until a CEMP, in accordance with the Outline CEMP, for that part has been submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority, relevant highway authority and the Environment Agency to the extent that it relates to matters relevant to its functions.

(2) The CEMP must be written in accordance with ISO14001 and, so far as is relevant to that part of the authorised development, must be in accordance with the relevant mitigation measures set out in the REAC, and must include the following management plans—

(a) pollution prevention plan;

(b) dust noise and nuisance management plan;

(c) ecological habitats and species plan;

(d) invasive species management plan;

(e) surface water management plan;

(f) contaminated land management plan;

(g) soil handling management plan;

(h) material management plan;

(i) site waste management plan;

(j) material, waste storage and refuelling plan;

(k) energy and resource use management plan;

(l) emergency response plan; and

(m) community engagement plan.

(3) The construction of the authorised development must be carried out in accordance with the approved CEMP.

(4) A HEMP must be developed and completed by the end of the construction, commissioning and handover stage of the authorised development, in accordance with the process set out in the approved CEMP.

(5) The authorised development must be operated and maintained in accordance with the HEMP.

Commencement Information

I5 Sch. 2 para. 4 in force at 6.6.2022, see art. 1

Landscaping E+W

5.—(1) The authorised development must be landscaped in accordance with a landscaping scheme and LEMP which set out details of all proposed hard and soft landscaping works and which has been submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority, relevant highway authority and the Environment Agency on matters related to its functions.

(2) The landscaping scheme and LEMP must be in accordance with the relevant mitigation measures set out in the REAC and with the Preliminary Environmental Design and the Outline LEMP.

(3) The landscaping scheme prepared under sub-paragraph (1) must include details of—

(a) location, number, species mix, size and planting density of any proposed planting;

(b) cultivation, importing of materials and other operations to ensure plant establishment;

(c) existing trees to be retained, with measures for their protection during the construction period;

(d) proposed finished ground levels;

(e) implementation timetables for all landscaping works; and

(f) measures for the replacement, in the first available planting season, of any tree or shrub planted as part of the landscaping scheme that, within a period of 5 years after the completion of the part of the authorised development to which the relevant landscaping scheme relates, dies, becomes seriously diseased or is seriously damaged.

(4) All landscaping works must be carried out to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards and other recognised codes of good practice.

Commencement Information

I6 Sch. 2 para. 5 in force at 6.6.2022, see art. 1

Contaminated land and groundwater E+W

6.—(1) In the event that contaminated land, including groundwater, is found at any time when carrying out the authorised development which was not previously identified in the environmental statement or in the Ground Investigation Report, it must be reported as soon as reasonably practicable to the Secretary of State, the relevant planning authority, relevant highway authority and the Environment Agency, and the undertaker must complete a risk assessment of the contamination in consultation with the relevant planning authority and the Environment Agency.

(2) Where the undertaker determines that remediation of the contaminated land is necessary, a written scheme and programme for the remedial measures to be taken to render the land fit for its intended purpose must be submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority on matters related to its function and the Environment Agency.

(3) Remediation must be carried out in accordance with the approved scheme.

Commencement Information

I7 Sch. 2 para. 6 in force at 6.6.2022, see art. 1

Protected species E+W

7.—(1) No part of the authorised development is to commence until for that part, final pre-construction survey work has been carried out to establish whether European or nationally protected species are present on any of the land affected or likely to be affected by that part of the relevant works, or in any of the trees and shrubs to be lopped or felled as part of the relevant works.

(2) Following pre-construction survey work or at any time when carrying out the authorised development, where—

(a) a protected species is shown to be present, or where there is a reasonable likelihood of it being present;

(b) application of the relevant assessment methods used in the environmental statement show that a significant effect is likely to occur which was not previously identified in the environmental statement; and

(c) that effect is not addressed by any prior approved scheme of protection and mitigation established in accordance with this paragraph,

the relevant parts of the relevant works must cease until a scheme of protection and mitigation measures has been submitted to and approved in writing by the Secretary of State.

(3) The undertaker must consult with Natural England on the scheme referred to in sub-paragraph (2) prior to submission to the Secretary of State for approval, except where a suitably qualified and experienced ecologist, holding where relevant and appropriate a licence relating to the species in question, determines that the relevant works do not require a protected species licence.

(4) The relevant works under sub-paragraph (2) must be carried out in accordance with the approved scheme, unless otherwise agreed by the Secretary of State after consultation by the undertaker with Natural England, and under any necessary licences.

Commencement Information

I8 Sch. 2 para. 7 in force at 6.6.2022, see art. 1

Surface and foul water drainage E+W

8.—(1) No part of the authorised development is to commence until for that part written details of the surface and foul water drainage system, in accordance with the relevant mitigation measures set out in the REAC including means of pollution control, have been submitted and approved in writing by the Secretary of State following consultation by the undertaker with the relevant planning authority and relevant highway authority on matters related to its function.

(2) The surface and foul water drainage system must be constructed in accordance with the approved details, unless otherwise agreed in writing by the Secretary of State following consultation by the undertaker with the relevant planning authority on matters related to its function, and provided that the Secretary of State is satisfied that any amendments to the approved details would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

Commencement Information

I9 Sch. 2 para. 8 in force at 6.6.2022, see art. 1

Archaeological remains E+W

9.—(1) No part of the authorised development is to commence until an archaeological management plan has been submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority to the extent that it relates to matters relevant to its functions.

(2) The archaeological management plan must be in accordance with the Outline Archaeological Management Plan and reflect the relevant mitigation measures set out in the REAC.

(3) The authorised development must be carried out in accordance with the approved archaeological management plan referred to in sub-paragraph (1).

Commencement Information

I10 Sch. 2 para. 9 in force at 6.6.2022, see art. 1

Traffic management E+W

10.—(1) No part of the authorised development comprising the construction, alteration or improvement of the M25 or A12 is to commence until a traffic management plan for that part has been submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant highway authority on matters related to its function.

(2) The traffic management plan prepared under sub-paragraph (1) must be in accordance with the Outline Traffic Management Plan and the relevant mitigation measures set out in the REAC.

(3) The authorised development must be constructed in accordance with the traffic management plan referred to in sub-paragraph (1).

Commencement Information

I11 Sch. 2 para. 10 in force at 6.6.2022, see art. 1

Trees E+W

11.—(1) No part of the authorised development is to commence until an arboricultural method statement has been submitted to and approved in writing by the Secretary of State, following consultation by the undertaker with the relevant planning authority to the extent that it relates to matters relevant to its functions.

(2) The arboricultural method statement must be in accordance with the Outline Arboricultural Method Statement and the relevant mitigation measures set out in the REAC.

(3) The authorised development must be carried out in accordance with the approved arboricultural method statement referred to in sub-paragraph (1).

Commencement Information

I12 Sch. 2 para. 11 in force at 6.6.2022, see art. 1

Approvals and amendments to approved details E+W

12.  With respect to any requirement which requires the authorised development to be carried out in accordance with the details or schemes approved under this Schedule, the approved details or schemes are taken to include any amendments that may subsequently be approved in writing by the Secretary of State.

Commencement Information

I13 Sch. 2 para. 12 in force at 6.6.2022, see art. 1

Fencing E+W

13.—(1) Any permanent and temporary fencing and other means of enclosure for the authorised development must be constructed and installed in accordance with Manual of Contract Documents for Highway Works maintained by or on behalf for the undertaker except where any departures from that manual are agreed in writing by the Secretary of State in connection with the authorised development, following consultation by the undertaker with the relevant highways authority to the extent that it relates to matters relevant to its function.

(2) No part of the new loop road forming Work No. 6 or the new A12 eastbound off-slip forming Work No. 2 is to be opened for traffic until any appropriate measures for the control of deer, including deer fencing, identified following consultation with the relevant planning authority and relevant highway authority on matters related to its function has been installed.

Commencement Information

I14 Sch. 2 para. 13 in force at 6.6.2022, see art. 1

Operation of M25 Junction 28 Roundabout E+W

14.—(1) No part of the new loop road forming Work No. 6 is to be opened for traffic until a plan for the M25 Junction 28 roundabout containing details of the proposed operation of traffic signal timings or such other related measures as may be reasonably practicable to prevent any increase in delays for traffic on the A1023 Brook Street entering the M25 Junction 28 roundabout arising as a result of the authorised development has been submitted to and approved in writing by the Secretary of State, following consultation with the highway authorities within the Order limits.

(2) The authorised development must be operated in accordance with the approved plan referred to in sub-paragraph (1) or such amended plan following consultation with the highway authorities within the Order limits.

Commencement Information

I15 Sch. 2 para. 14 in force at 6.6.2022, see art. 1

Maylands Golf Course accommodation works E+W

15.  Accommodation works to provide replacement facilities for Maylands Golf Course forming Work No. 32 must be undertaken and available for use prior to the opening to traffic of the new loop road forming Work No. 6.

Commencement Information

I16 Sch. 2 para. 15 in force at 6.6.2022, see art. 1

Grove Farm E+W

16.—(1) No part of the authorised development is to commence until a site-specific plan for Grove Farm has been submitted to and approved in writing by the Secretary of State in consultation with Transport for London and the London Borough of Havering.

(2) The site-specific plan must include:

(a) details of the planting, visual screen to be installed, and any other mitigation deemed necessary for the boundary to the new A12 eastbound off-slip forming Work No. 2; and

(b) details of the egress route forming Work No. 15 onto the new A12 eastbound off-slip forming Work No. 2.

(3) The authorised development must be constructed in accordance with the site-specific plan referred to in sub-paragraph (1).

Commencement Information

I17 Sch. 2 para. 16 in force at 6.6.2022, see art. 1

Non-motorised users’ route E+W

17.  No part of the new loop road forming Work No. 6 may be opened for traffic until:

(a) a scheme or agreement to secure the full non-motorised users’ route between Harold Hill and Brentwood has been submitted to and approved in writing by the Secretary of State in consultation with the relevant highway authorities and relevant planning authorities; and

(b) the junction section of the non-motorised users’ route within the Order limits has been delivered.

Commencement Information

I18 Sch. 2 para. 17 in force at 6.6.2022, see art. 1

Code of construction practice E+W

18.—(1) No part of the authorised development may commence until a code of construction practice has been submitted to and approved in writing by the Secretary of State in consultation with Transport for London and the relevant planning authorities.

(2) The authorised development must be carried out in accordance with the approved code of construction practice.

Commencement Information

I19 Sch. 2 para. 18 in force at 6.6.2022, see art. 1

Gardens of Peace Muslim Cemetery E+W

19.—(1) No part of Work No. 29 is to commence within plot nos. 1/8a and 1/8 until a site-specific construction plan has been submitted to and approved in writing by the Secretary of State following consultation with the Gardens of Peace Muslim Cemetery and Cadent.

(2) Work No. 29 within plot nos. 1/8a and 1/8 must be constructed in accordance with the approved site-specific plan referred to in sub-paragraph (1).

Commencement Information

I20 Sch. 2 para. 19 in force at 6.6.2022, see art. 1

PART 2 E+W PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under requirements E+W

20.—(1) Where an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement (including consent, agreement or approval in respect of part of a requirement) included in this Order, the Secretary of State must give notice to the undertaker of the decision on the application within a period of 8 weeks beginning with—

(a) the day immediately following that on which the application is received by the Secretary of State;

(b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 21 (further information); or

(c) such longer period as may be agreed between the parties.

(2) Subject to sub-paragraph (3), in the event that the Secretary of State does not determine an application within the period set out in sub-paragraph (1), the Secretary of State is taken to have granted all parts of the application (without any condition or qualification) at the end of that period.

(3) Where—

(a) an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement included in this Order;

(b) the Secretary of State does not determine such application within the period set out in sub-paragraph (1); and

(c) the application is accompanied by a report from a body required to be consulted by the undertaker under the requirement that considers it likely that the subject matter of the application would give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement,

the application is taken to have been refused by the Secretary of State at the end of that period.

Commencement Information

I21 Sch. 2 para. 20 in force at 6.6.2022, see art. 1

Further information E+W

21.—(1) In relation to any part of an application made under this Schedule, the Secretary of State has the right to request such further information from the undertaker as is necessary to enable the Secretary of State to consider the application.

(2) In the event that the Secretary of State considers such further information to be necessary, the Secretary of State must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates.

(3) In the event that the Secretary of State does not give such notification within that 21 day period the Secretary of State is deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.

(4) Where further information is requested under this paragraph in relation to part only of an application, that part is treated as separate from the remainder of the application for the purposes of calculating the time periods referred to in paragraph 20 (applications made under requirements) and in this paragraph.

(5) In this paragraph, “business day” means a day other than Saturday or Sunday, which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971(4).

Commencement Information

I22 Sch. 2 para. 21 in force at 6.6.2022, see art. 1

Register of requirements E+W

22.—(1) The undertaker must, as soon as practicable following the making of this Order, establish and maintain in a form suitable for inspection by members of the public an online register of the documents to be certified under Schedule 10 and those requirements contained in Part 1 of this Schedule that provide for further approvals to be given by the Secretary of State.

(2) The register must set out in relation to each such requirement the status of the requirement, in terms of whether any approval to be given by the Secretary of State has been applied for or given, providing an electronic link to any document containing any approved details.

(3) The register must be maintained by the undertaker for a period of 3 years following completion of the authorised development.

Commencement Information

I23 Sch. 2 para. 22 in force at 6.6.2022, see art. 1

Anticipatory steps towards compliance with any requirement E+W

23.  If before the coming into force of this Order, the undertaker or any other person has taken any steps that were intended to be steps towards compliance with any provision of Part 1 of this Schedule, those steps may be taken into account for the purpose of determining compliance with that provision if they would have been valid steps for that purpose had they been taken after this Order came into force.

Commencement Information

I24 Sch. 2 para. 23 in force at 6.6.2022, see art. 1

Details of consultation E+W

24.  In relation to any provision of this Schedule requiring details to be submitted to the Secretary of State for approval following consultation by the undertaker with another party, the undertaker must provide such other party with not less than 42 days for any response to the consultation and thereafter the details submitted to the Secretary of State for approval must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted including copies of any representations made by a consultee about the proposed application and the undertaker’s response to those representations.

Commencement Information

I25 Sch. 2 para. 24 in force at 6.6.2022, see art. 1

Article 15

SCHEDULE 3 E+W PERMANENT STOPPING UP OF STREETS

PART 1 E+W HIGHWAYS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

Commencement Information

I26 Sch. 3 Pt. 1 in force at 6.6.2022, see art. 1

(1) Highway to be stopped up	(2) Extent of stopping up	(3) New highway to be provided
A12 Eastbound Off-Slip (including the non-segregated footway in the verge)	Between points 1/18 to 1/19 on sheet 1 of the streets, rights of way and access plans	Work No. 2
M25 Northbound On-Slip	Between points 1/14 on sheet 1 to 3/3 on sheet 3 of the streets, rights of way and access plans	Work No. 8
Non-segregated footway in the verge of the existing A12 Eastbound Carriageway	Between points 1/10 to 1/18 on sheet 1 of the streets, rights of way and access plans	Work No. 2

PART 2 E+W PRIVATE MEANS OF ACCESS TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

Commencement Information

I27 Sch. 3 Pt. 2 in force at 6.6.2022, see art. 1

(1) Private means of access to be stopped up	(2) Extent of stopping up	(3) New private means of access to be substituted or provided
Private means of egress from Grove Farm	At point A as shown on Sheet 1 of the streets, rights of way and access plans	Work No. 15
Private means of access to land situated to the immediate north of the A12 Eastbound Carriageway	At point B as shown on Sheet 1 of the streets, rights of way and access plans	Work No. 16

Article 16 and 17

SCHEDULE 4 E+W CLASSIFICATION OF ROADS, ETC.

PART 1 E+W SPECIAL ROADS

Commencement Information

I28 Sch. 4 Pt. 1 in force at 6.6.2022, see art. 1

(1) Highway	(2) Extent
M25 Northbound	Between points 4/1 on sheet 4 to 3/1 on sheet 3 of the streets, rights of way and access plans
M25 Junction 28 Loop Road	Between points 1/16 on sheet 1 to 1/17 on sheet 1 of the streets, rights of way and access plans
M25 Northbound On-Slip	Between points 1/13 on sheet 1 to 3/1 on sheet 3 of the streets, rights of way and access plans
M25 Northbound Off-Slip	Between points 1/30 on sheet 1 to 1/6 on sheet 1 of the streets, rights of way and access plans
M25 Southbound	Between points 3/5 and 3/6 and between 3/7 and 3/8 on sheet 3 of the streets, rights of way and access plans

PART 2 E+W TRANSPORT FOR LONDON ROAD NETWORK

Commencement Information

I29 Sch. 4 Pt. 2 in force at 6.6.2022, see art. 1

(1) Highway	(2) Extent
A12 Eastbound Off-Slip	Between points 1/10 on sheet 1 to 1/11 on sheet 1 of the streets, rights of way and access plans

PART 3 E+W TRUNK ROADS

Commencement Information

I30 Sch. 4 Pt. 3 in force at 6.6.2022, see art. 1

(1) Highway	(2) Extent
M25 Junction 28, circulatory carriageway	Entire M25 Junction 28 circulatory carriageway linking points 1/3, 1/6, 1/7, 1/8, 1/11, 1/12 and back to 1/3 on sheet 1 of the streets, rights of way and access plans
A12 Eastbound On-Slip	Between points 1/3 and 1/34 on sheet 1 of the streets, rights of way and access plans
M25 Northbound On-Slip	Between points 1/12 to 1/13 on sheet 1 of the streets, rights of way and access plans
A12 Eastbound	Between points 1/2 on sheet 1 to 2/1 on sheet 2 of the streets, rights of way and access plans

PART 4 E+W SPEED LIMITS

Commencement Information

I31 Sch. 4 Pt. 4 in force at 6.6.2022, see art. 1

(1) Road name and number	(2) Extent	(3) Speed Limit
M25 Junction 28 Circulatory Carriageway	The whole length of the improved M25 Junction 28 circulatory carriageway, for a total distance of 610 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
M25 Northbound Carriageway	Along the length of the improved M25 northbound carriageway, for a total distance of 3720 metres, as shown on sheets 1, 3 and 4 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
M25 Junction 28 Diverge to Loop Road	Along the length of the new slip road, from its diverge from the M25 northbound carriageway to point C, for a total distance of 265 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour)
M25 Northbound On-Slip and Merge	Along the length of the improved slip road from the M25 Junction 28 circulatory carriageway to its merge with the M25 northbound carriageway, for a total distance of 1234 metres, as shown on sheets 1 and 3 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour)
M25 Northbound Off-Slip and Diverge	Along the length of the improved slip road from its diverge from M25 northbound carriageway to M25 Junction 28 circulatory carriageway, for a total distance of 149 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
A12 Eastbound Carriageway	Along the length of the improved A12 eastbound carriageway from the western-most Order limits to point A, for a total distance of 330 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour, as existing limit
A12 Eastbound Carriageway	Along the length of the improved A12 eastbound carriageway between point A and B, for a total distance of 908 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour
A12 Eastbound Carriageway	Along the length of the improved A12 eastbound carriageway from point B, for a total distance of 693 metres, as shown on sheets 1 and 2 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
A12 Eastbound Off-Slip and Diverge	Along the length of the realigned slip road, from its diverge from the A12 eastbound off-slip to the M25 Junction 28 circulatory carriageway, for a total distance of 773 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour
A12 Eastbound On-Slip and Merge	Along the length of the improved A12 eastbound on-slip from the M25 Junction 28 circulatory carriageway to its merge with the A12 eastbound carriageway, for a total distance of 546 metres, as shown on sheets 1 and 2 of the speed limits and traffic regulations plans.	National speed limit (70 miles per hour, as existing limit)
M25 Junction 28 Loop Road and Merge	Along the length of the new loop road from point C to its merge with A12 eastbound carriageway for a total distance of 1176 metres, as shown on sheet 1 of the speed limits and traffic regulations plans.	50 miles per hour

PART 5 E+W TRAFFIC REGULATION MEASURES (CLEARWAYS)

Commencement Information

I32 Sch. 4 Pt. 5 in force at 6.6.2022, see art. 1

(1) Road name and number	(2) Extent of Regulation	(3) Measures
A12 Eastbound Off-Slip	From the start of A12 eastbound diverge, as shown by point 1/1 on sheet 1 of the speed limits and traffic regulations plans, eastbound for a distance of 773 metres, to the junction with the M25 Junction 28 circulatory carriageway, as shown by point 1/2 on sheet 1 of the speed limits and traffic regulations plans.	Clearway (to include verge and hard strips)
A12 Eastbound Carriageway	From the start of the A12 eastbound diverge, at the location illustrated by point 1/1 on sheet 1 of the speed limits and traffic regulations plans, eastbound for a distance of 918 metres along the mainline carriageway, to point 1/3 on sheet 1 of the speed limits and traffic regulations plans.	Clearway (to include verge and hard strips)

PART 6 E+W OTHER PUBLIC RIGHTS OF WAY

Commencement Information

I33 Sch. 4 Pt. 6 in force at 6.6.2022, see art. 1

(1) Highway	(2) Extent
Non-segregated footway in the verge of the A12 Eastbound Off-Slip	Between points 1/10 to 1/11 and between points 1/11 and 1/20 on sheet 1 of the streets, rights of way and access plans

Article 24

SCHEDULE 5 E+W TREES SUBJECT TO TREE PRESERVATION ORDERS

Commencement Information

I34 Sch. 5 in force at 6.6.2022, see art. 1

(1) Type of tree	(2) Work to be carried out	(3) Relevant part of the authorised development	(4) TPO reference
Area TPO Multiple Species	Potential felling of trees or works to trees to permit the gas main diversion	Work No. 29	TPO 2-02 – A1 Land on south side of Colchester Road. London Borough of Havering.
Area TPO Multiple Species	Felling of trees or works to trees to permit the construction of the scheme being submitted as part of the DCO	Work Nos. 6 and 23C	TPO 18-06 – A1 Maylands Golf Course, Colchester Road, Romford. London Borough of Havering.
Group TPO Multiple Species woodland	Felling of trees or works to trees to permit the construction of the scheme being submitted as part of the DCO	Work Nos. 6, 14 and 30	TPO 5/1948 Map 16, Alder Wood.  Brentwood District Council.
Group TPO Multiple Species woodland	Felling of trees or works to trees to permit the construction of the scheme being submitted as part of the DCO	Work Nos. 2, 15, 18, 23B, 23D and 26	TPO 5/1948 Map 21 Grove Wood.  Brentwood District Council.

Article 28

SCHEDULE 6 E+W LAND IN WHICH NEW RIGHTS ONLY ETC. MAY BE ACQUIRED

Commencement Information

I35 Sch. 6 in force at 6.6.2022, see art. 1

(1) Plot Reference Number shown on Land Plans	(2) Purpose for which rights over land may be acquired	(3) Relevant part of the authorised development
Land Plans – Sheet 1 of 4
1/1a	To construct, protect, operate, access and maintain diversion of an existing underground high pressure gas pipeline. To construct, access and maintain drainage works. To construct, operate, access and maintain diversions to existing utilities apparatus.	Work Nos. 6 and 29 and other ancillary development (utilities)
1/3	To construct, operate, access and maintain diversions to existing utilities apparatus. To construct and maintain a new private means of access.	Work No. 19A and other ancillary development (utilities)
1/6	To construct, access and maintain drainage works from the new loop road.	Work No. 6
1/8	To construct, protect, operate, access and maintain diversion of an existing underground high pressure gas pipeline.	Work No. 29
1/20	To construct, access and maintain a new drainage outfall pipe.	Work No. 22
1/21	To construct, access and maintain a new drainage outfall pipe.	Work No. 22
1/22	To construct, access and maintain a new drainage outfall pipe.	Work No. 22
1/25	To install, access, monitor and maintain bird boxes.	Other ancillary development (bird boxes)
1/25a	To install, access, monitor and maintain bird boxes.	Work Nos. 2, 6, 23B, 23D and 26 and other ancillary development (bird boxes and utilities)
1/27	To install, access, monitor and maintain bird boxes. To construct, access and maintain— (a) improvements to the A12 eastbound off-slip (including Maylands Bridge and Grove culvert); (b) Grove Bridge; and (c) realigned stretches of Weald Brook and Ingrebourne River. To construct, operate, access and maintain diversions to existing utilities apparatus.	Work Nos. 2, 6, 23B, 23D and 26 and other ancillary development (bird boxes and utilities)
Land Plans – Sheet 3 of 4
3/15	To install, access, monitor and maintain bird boxes.	Other ancillary development (bird boxes)
3/17	To install, access, monitor and maintain bird boxes.	Other ancillary development (bird boxes)

Articles 28

SCHEDULE 7 E+W MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS AND IMPOSITION OF RESTRICTIVE COVENANTS

Compensation enactments E+W

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or the imposition of a restrictive covenant as they apply in respect of compensation on the compulsory purchase of land and interests in land. E+W

Commencement Information

I36 Sch. 7 para. 1 in force at 6.6.2022, see art. 1

2.—(1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2). E+W

(2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute—

“(5A) If—

(a) the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 7 (modification of compensation and compulsory purchase enactments for creation of new rights and imposition of restrictive covenants) to the M25 Junction 28 Development Consent Order 2022 (“the 2022 Order”));

(b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 7 to the 2022 Order) to acquire an interest in the land; and

(c) the acquiring authority enters on and takes possession of that land,

the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.”.

Commencement Information

I37 Sch. 7 para. 2 in force at 6.6.2022, see art. 1

3.—(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973(5) has effect subject to the modifications set out in sub-paragraph (2). E+W

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)—

(a) for “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and

(b) for “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.

Commencement Information

I38 Sch. 7 para. 3 in force at 6.6.2022, see art. 1

Application of the 1965 Act E+W

4.  Part 1 of the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 30 (modification of Part 1 of the 1965 Act)) to the acquisition of land under article 25 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 28 (compulsory acquisition of rights and imposition of restrictive covenants)— E+W

(a) with the modifications specified in paragraph 5; and

(b) with such other modifications as may be necessary.

Commencement Information

I39 Sch. 7 para. 4 in force at 6.6.2022, see art. 1

5.—(1) The modification referred to in paragraph 4(a) are as follows. E+W

(2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the context) as referring to, or as including references to—

(a) the right acquired or to be acquired, or the restrictive covenant imposed or to be imposed; or

(b) the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.

(3) For section 7 (measure of compensation) of the 1965 Act substitute—

“7.   In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the restrictive covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.

(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

(a) section 9(4) (failure by owners to convey);

(b) paragraph 10(3) of Schedule 1 (owners under incapacity);

(c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

(5) Section 11(6) (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to compulsory acquisition under article 22 (authority to survey and investigate the land)), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A(7) (powers of entry; further notices of entry), 11B(8) (counter-notice requiring possession to be taken on specified date), 12(9) (unauthorised entry) and 13(10) (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.

(6) Section 20(11) (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

(7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 30(4) is also modified so as to enable the acquiring authority in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

(8) For Schedule 2A of the 1965 Act substitute—

“SCHEDULE 2A E+W COUNTER-NOTICE REQUIRING PURCHASE OF LAND

Introduction E+W

1.— (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 31 (application of the 1981 Act) of the M25 Junction 28 Development Consent Order 2022 in respect of the land to which the notice to treat relates.

(2) But see article 32(3) (acquisition of subsoil or airspace only) of the M25 Junction 28 Development Consent Order 2022 which excludes the acquisition of subsoil or airspace only from this Schedule.

2.   In this Schedule, “house” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land E+W

3.   A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory.

4.   A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice E+W

5.   On receiving a counter-notice, the acquiring authority must decide whether to—

(a) withdraw the notice to treat,

(b) accept the counter-notice, or

(c) refer the counter-notice to the Upper Tribunal.

6.   The acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).

7.   If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.

8.   If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.

9.   If the acquiring authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.

Determination by Upper Tribunal E+W

10.   On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—

(a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or

(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.

11.   In making its determination, the Upper Tribunal must take into account—

(a) the effect of the acquisition of the right or the imposition of the covenant,

(b) the proposed use of the right or the imposition of the covenant, and

(c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.

12.   If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.

13.   If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.

14.— (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.

(2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.

(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.”.

Commencement Information

I40 Sch. 7 para. 5 in force at 6.6.2022, see art. 1

Article 34

SCHEDULE 8 E+W LAND OF WHICH TEMPORARY POSSESSION ONLY MAY BE TAKEN

Commencement Information

I41 Sch. 8 in force at 6.6.2022, see art. 1

(1) Plot Reference Number shown on Land Plans	(2) Purpose for which temporary possession may be taken	(3) Relevant part of the authorised development
Land Plans – Sheet 1 of 4
1/1	Construction works relating to improvements to the A12 eastbound carriageway.	Work No. 1
1/1b	Construction works relating to improvements to the A12 westbound carriageway.	Work No. 4
1/1c	Construction works relating to improvements to the A12 westbound carriageway and to the diversion of an existing underground high pressure gas pipeline.	Work Nos. 4 and 29
1/1d	Construction works relating to improvements to the A12 westbound carriageway and to the diversion of an existing underground high pressure gas pipeline.	Work Nos. 4 and 29
1/2	Construction works relating to improvements to the A12 eastbound carriageway.	Work No. 1
1/7	Construction works relating to improvements to the A12 westbound carriageway and to the diversion of an existing underground high pressure gas pipeline.	Work Nos. 4 and 29
1/8a	Construction works relating to the diversion of an existing underground high pressure gas pipeline.	Work No. 29
1/11	To establish an environmental bund and construction compound and to undertake associated construction activities.	Work No. 18 and, in respect of the construction compound, all works
1/14	Construction works relating to the provision of accommodation works for Maylands Golf Course.	Work No. 32
1/15	Construction works relating to the establishment of a new attenuation pond with associated drainage works and the realignment of a stretch of Weald Brook.	Work Nos. 21B, 22 and 23C
1/16	Construction works relating to the realignment of stretches of Weald Brook.	Work Nos. 23A and 23B
1/17	Construction works relating to the new loop road.	Work No. 6
1/21a	Construction works relating to the realignment of stretches of Weald Brook.	Work Nos. 23A and 23B
1/26	Construction working area for alterations to the existing egress from Grove Farm.	Work No. 15
1/28a	Construction working area for alterations to the existing egress from Grove Farm.	Work No. 15
Land Plans – Sheet 3 of 4
3/2	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip and a new gantry.	Work Nos. 7, 8 and 10
3/3	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip and a new gantry.	Work Nos. 7, 8 and 10
3/6	Construction working area for a new gantry.	Work No. 10
3/7	Construction working area for a new gantry.	Work No. 10
3/16	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip, and a new private means of access.	Work Nos. 8 and 14
3/18	To establish an ecological mitigation area.	Work No. 25
3/19	Construction working area for improvements to the M25 northbound carriageway, the realignment of the existing northbound on-slip, and a new private means of access.	Work Nos. 8 and 14
3/21	Construction works relating to the provision of accommodation works for Maylands Golf Course and to establish an ecological mitigation area.	Work Nos. 25 and 32
3/23	Construction works relating to the provision of accommodation works for Maylands Golf Course.	Work No. 32

Articles 20, 37 and 44

SCHEDULE 9 E+W PROTECTIVE PROVISIONS

PART 1 E+W FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWAGE UNDERTAKERS

Application E+W

1.  For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned. E+W

Commencement Information

I42 Sch. 9 para. 1 in force at 6.6.2022, see art. 1

Interpretation E+W

2.  In this Part of this Schedule— E+W

“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” means—

(a)

in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989(12)), belonging to or maintained by that undertaker;

(b)

in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986(13) for the purposes of gas supply;

(c)

in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that undertaker for the purposes of water supply; and

(d)

in the case of a sewerage undertaker—

(i)

any drain or works vested in the undertaker under the Water Industry Act 1991(14); and

(ii)

any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4)(15) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104(16) (agreements to adopt sewer, drain or sewage disposal works, at a future date) of that Act,

and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) 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 includes any structure in which apparatus is or is to be lodged or which 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 upon land;

“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;

“utility undertaker” means—

(a)

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

(b)

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

(c)

a water undertaker within the meaning of the Water Industry Act 1991; and

(d)

a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991,

for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

Commencement Information

I43 Sch. 9 para. 2 in force at 6.6.2022, see art. 1

On street apparatus E+W

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the utility undertaker are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act. E+W

Commencement Information

I44 Sch. 9 para. 3 in force at 6.6.2022, see art. 1

Apparatus in stopped up streets E+W

4.—(1) Where any street is stopped up under article 15 (permanent stopping up of streets), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus in the street as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9. E+W

(2) Regardless of the temporary alteration, diversion or restriction of any street under the powers conferred by article 13 (temporary stopping up and restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.

Commencement Information

I45 Sch. 9 para. 4 in force at 6.6.2022, see art. 1

Protective works to buildings E+W

5.  The undertaker, in the case of the powers conferred by article 21 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus. E+W

Commencement Information

I46 Sch. 9 para. 5 in force at 6.6.2022, see art. 1

Acquisition of land E+W

6.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement. E+W

Commencement Information

I47 Sch. 9 para. 6 in force at 6.6.2022, see art. 1

Removal of apparatus E+W

7.—(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 or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, 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 accordance with sub-paragraphs (2) to (6). E+W

(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, the undertaker must give to the utility undertaker 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a 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 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 of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker and the undertaker or in default of agreement settled by arbitration in accordance with article 53 (arbitration).

(5) The utility undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 53, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraphs (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 the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker that the undertaker 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) If the utility undertaker fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved, provided that the undertaker has first taken all reasonable steps to contact the relevant representatives of the utility undertaker in order to elicit such a response.

(8) Any deemed approval under sub-paragraph (7) does not extend to the actual undertaking of the removal works, which remains the sole responsibility of the utility undertaker or its contractors.

Commencement Information

I48 Sch. 9 para. 7 in force at 6.6.2022, see art. 1

Facilities and rights for alternative apparatus E+W

8.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance of the utility undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker or in default of agreement settled by arbitration in accordance with article 53 (arbitration). E+W

(2) 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.

Commencement Information

I49 Sch. 9 para. 8 in force at 6.6.2022, see art. 1

Retained apparatus E+W

9.—(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 7(2), the undertaker must submit to the utility undertaker in question a plan of the works to be executed. E+W

(2) Those works must be executed only in accordance with the plan 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 those works.

(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is 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 1 to 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(2).

(5) Nothing in this paragraph 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 new plan instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give the utility undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.

Commencement Information

I50 Sch. 9 para. 9 in force at 6.6.2022, see art. 1

Expenses and costs E+W

10.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, 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 paragraph 7(2). E+W

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 53 (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 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 is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to 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), 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, is to be reduced by the amount which represents that benefit.

Commencement Information

I51 Sch. 9 para. 10 in force at 6.6.2022, see art. 1

11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 5 or 7(2), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must— E+W

(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) The fact that any act or thing may have been done by a utility undertaker on behalf of the undertaker or in accordance with a plan approved by a utility undertaker or in accordance with any requirement of a utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless a utility undertaker fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.

(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 a utility undertaker, its officers, servants, contractors or agents.

(4) A utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made, without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Commencement Information

I52 Sch. 9 para. 11 in force at 6.6.2022, see art. 1

Co-operation E+W

12.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9, the undertaker must use best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose. E+W

Commencement Information

I53 Sch. 9 para. 12 in force at 6.6.2022, see art. 1

13.  Nothing in this Part of this Schedule 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 on the date on which this Order is made. E+W

Commencement Information

I54 Sch. 9 para. 13 in force at 6.6.2022, see art. 1

PART 2 E+W FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

14.  For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator. E+W

Commencement Information

I55 Sch. 9 para. 14 in force at 6.6.2022, see art. 1

15.  In this Part of this Schedule— E+W

“the 2003 Act” means the Communications Act 2003(17);

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act(18);

“electronic communications code network” means—

(a)

so much of an electronic communications network or infrastructure 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 (application of the electronic communications code) of the 2003 Act; and

(b)

an electronic communications network which the undertaker 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;

“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) of that code; and

“operator” means the operator of an electronic communications code network.

Commencement Information

I56 Sch. 9 para. 15 in force at 6.6.2022, see art. 1

16.  The exercise of the powers conferred by article 37 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code. E+W

Commencement Information

I57 Sch. 9 para. 16 in force at 6.6.2022, see art. 1

17.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works— E+W

(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 those works), 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 bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, 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 operator, its officers, servants, contractors or agents.

(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 53 (arbitration).

(5) This Part of this Schedule does not apply to—

(a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 of the 1991 Act; or

(b) any damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.

(6) Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Commencement Information

I58 Sch. 9 para. 17 in force at 6.6.2022, see art. 1

PART 3 E+W FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

18.—(1) The following provisions will 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;

“construction” includes execution, placing, altering, replacing, relaying and removal and excavation and “construct” and “constructed” will 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 land drainage, flood defence or tidal monitoring;

“the fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;

“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;

“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 8 metres of a drainage work or is otherwise likely to—

(a)

affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;

(b)

affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;

(c)

cause obstruction to the free passage of fish or damage to any fishery;

(d)

affect the conservation, distribution or use of water resources; or

(e)

affect the conservation value of the main river and habitats in its immediate vicinity;

“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

I59 Sch. 9 para. 18 in force at 6.6.2022, see art. 1

19.—(1) Before beginning to construct 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 request. E+W

(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 28.

(3) Any approval of the Agency required under this paragraph—

(a) must not be unreasonably withheld or delayed;

(b) in the case of a refusal must be accompanied by a statement of grounds of refusal;

(c) is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been requested by the Agency for approval; and

(d) may be given subject to such reasonable requirements as the Agency may have for the protection of any drainage work or the 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)(c).

Commencement Information

I60 Sch. 9 para. 19 in force at 6.6.2022, see art. 1

20.  Without limiting paragraph 19, 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

I61 Sch. 9 para. 20 in force at 6.6.2022, see art. 1

21.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 20, 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 will be 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 the specified work to which the protective works relate.

(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 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), 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 reasonable expenditure incurred by the Agency in so doing will be 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 will 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 28.

Commencement Information

I62 Sch. 9 para. 21 in force at 6.6.2022, see art. 1

22.—(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 specified 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), 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 and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and any reasonable expenditure incurred by the Agency in so doing will be recoverable 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 these protective provisions 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 thereof until it has obtained the 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 will 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 28.

(6) This paragraph does not apply to—

(a) drainage works which are vested in the Agency, or which the Agency or another person, including the highway authority, is liable to maintain and is not proscribed by the powers of the Order from doing so; and

(b) or any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.

Commencement Information

I63 Sch. 9 para. 22 in force at 6.6.2022, see art. 1

23.  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

I64 Sch. 9 para. 23 in force at 6.6.2022, see art. 1

24.  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 24 hours of the undertaker becoming aware of such obstruction. E+W

Commencement Information

I65 Sch. 9 para. 24 in force at 6.6.2022, see art. 1

25.—(1) The undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work. E+W

(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) 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 any expenditure incurred by the Agency in so doing will be recoverable from the undertaker.

(4) 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 any reasonable expenditure incurred in so doing 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.

Commencement Information

I66 Sch. 9 para. 25 in force at 6.6.2022, see art. 1

26.  The undertaker must repay to the Agency all reasonable 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; or

(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

I67 Sch. 9 para. 26 in force at 6.6.2022, see art. 1

27.—(1) The undertaker must make reasonable compensation for costs and losses which may be reasonably incurred or suffered by the Agency by reason of— E+W

(a) the construction of any specified works comprised within the authorised works; or

(b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction of the authorised works.

(2) In sub-paragraph (1)—

“costs” includes—

(a)

expenses and charges;

(b)

staff costs and overheads;

(c)

legal costs;

“losses” includes physical damage.

(3) The undertaker must make reasonable compensation for liabilities, claims and demands arising out of or in connection with the authorised works or otherwise out of the matters referred to in sub-paragraph (1)(a) and (b).

(4) In sub-paragraph (3)—

“claims” and “demands” include as applicable—

(a)

costs (within the meaning of sub-paragraph (2)) incurred in connection with any claim or demand;

(b)

any interest element of sums claimed or demanded; and

“liabilities” includes—

(a)

contractual liabilities;

(b)

tortious liabilities (including liabilities for negligence or nuisance);

(c)

liabilities to pay statutory compensation or for breach of statutory duty; and

(d)

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.

(6) The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom.

(7) The Agency must not compromise or settle any such claim or make any admission which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

(8) The Agency must, at all times, take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss.

(9) The Agency must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action, and is entitled to be repaid its reasonably expenses reasonably incurred in so doing.

(10) 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, will not relieve the undertaker from any liability under the provisions of this Part of this Schedule.

Commencement Information

I68 Sch. 9 para. 27 in force at 6.6.2022, see art. 1

28.  Any dispute arising between the undertaker and the Agency under this part of this Schedule will, if the parties agree, be determined by arbitration under article 53 (arbitration), but will otherwise be determined by the Secretary of State for Environment, Food and Rural Affairs or its successor and the Secretary of State for Transport or its successor acting jointly on a reference to them by the undertaker or the Agency, after notice in writing by one to the other. E+W

Commencement Information

I69 Sch. 9 para. 28 in force at 6.6.2022, see art. 1

PART 4 E+W FOR THE PROTECTION OF DRAINAGE AUTHORITIES

29.  The following provisions of this Part of this Schedule apply for the protection of the drainage authority unless otherwise agreed between the undertaker and the drainage authority. E+W

Commencement Information

I70 Sch. 9 para. 29 in force at 6.6.2022, see art. 1

30.  In this Part of this Schedule— E+W

“construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are to be construed accordingly;

“drainage authority” means in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991(19);

“drainage work” means in relation to any key watercourse and includes any land which is expected to provide flood storage capacity for a key watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with a key watercourse;

“key watercourse” means any of the following ordinary watercourses—

Ordinary watercourse to be regarded as a key watercourse	Ordnance Survey coordinates of ordinary watercourse to be regarded as a key watercourse
existing ditch 1	TQ 56608 92369 to TQ 56429 92244
existing ditch 2	TQ 56427 92408 to TQ 56438 92260
existing ditch 3	TQ 56593 92504 to TQ 56444 92744
existing ditch 4	TQ 56442 92747 to TQ 56255 92665
existing ditch 5	TQ 56339 92531 to TQ 56289 92673
existing ditch 6	TQ 56243 92551 to TQ 56273 92556
existing ditch 7	TQ 56202 92680 to TQ 56255 92558
existing ditch 8	TQ 56216 92637 to TQ 56229 92642
existing ditch 9	TQ 56192 93002 to TQ 56284 92682
existing ditch 10	TQ 56264 93010 to TQ 56193 93002
existing ditch 11	TQ 56192 93140 to TQ 56174 93104
existing ditch 12	TQ 56078 93264 to TQ 56098 93223

and in each case includes any land or area which is being used or is expected to be used to provide temporary or permanent flood storage capacity or relief for the watercourse and any bank, wall, embankment or other structure, or any appliance constructed or used for land drainage or flood defence in connection with the watercourse;

“ordinary watercourse” has the same meaning as given in section 72 (interpretation) of the Land Drainage Act 1991(20);

“plans” includes any information reasonably required by the drainage authority including location details, grid references, sections, drawings, specifications, assessments and method statements; and

“specified work” means any of the following works carried out in relation to any ordinary watercourse—

(a)

erecting any mill dam, weir or other similar obstruction to the flow of the watercourse, or raising or otherwise altering any such obstruction;

(b)

the construction or alteration of a bridge or other structure;

(c)

erecting a culvert in the watercourse; or

(d)

altering a culvert in a manner that would be likely to affect the flow of the watercourse.

Commencement Information

I71 Sch. 9 para. 30 in force at 6.6.2022, see art. 1

31.—(1) Before beginning to construct any specified work in relation to a key watercourse, the undertaker must submit to the drainage authority plans of the work, and such further particulars available to the undertaker as the drainage authority may within 14 days of the first submission of the plans reasonably require. E+W

(2) On receipt of the plans submitted under sub-paragraph (1) the drainage authority may within 14 days of the first submission of the plans—

(a) request such further particulars as the drainage authority may reasonably require; or

(b) request up to a further 14 days in which to review the plans to identify if any further particulars are required.

(3) Any such specified work in relation to a key watercourse must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority, or determined under paragraph 35.

(4) Any approval of the drainage authority required under this paragraph—

(a) must not be unreasonably withheld or delayed;

(b) is to be deemed to have been given if it is neither given nor refused within 28 days of the submission of the plans for approval or submission of further particulars (where required by the drainage authority under sub-paragraph (1), whichever is the later; and

(c) may be given subject to such reasonable requirements or conditions as the drainage authority may make for the protection of any key watercourse or for the prevention of flooding.

(5) Any refusal under this paragraph must be accompanied by a statement of the reasons for refusal.

Commencement Information

I72 Sch. 9 para. 31 in force at 6.6.2022, see art. 1

32.  The requirements or conditions which the drainage authority may make under paragraph 31 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) as are reasonably necessary— E+W

(a) to safeguard any key watercourse against damage; or

(b) to secure that the efficiency of any key watercourse for flood defence or land drainage purposes is not impaired and that the risk of flooding is not otherwise increased, by reason of the specified work in relation to a key watercourse.

Commencement Information

I73 Sch. 9 para. 32 in force at 6.6.2022, see art. 1

33.—(1) Any specified work in relation to a key watercourse, and all protective works required by the drainage authority under paragraph 32, must be constructed to the reasonable satisfaction of the drainage authority and an officer of the drainage authority is entitled on giving such notice as may be reasonable in the circumstances, to inspect and watch the construction of such works. E+W

(2) The undertaker must give to the drainage authority not less than 14 days’ notice of its intention to commence construction of any specified work in relation to a key watercourse and the undertaker must give to the drainage authority notice of completion of a specified work in relation to a key watercourse not later than 7 days after the date on which it is brought into use.

(3) If any part of the works comprising a structure in, over or under a key watercourse is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the drainage authority may by notice require the undertaker at its own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work and, where removal is agreed, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires.

(4) Subject to sub-paragraph (5), if within a reasonable period, being not less than 14 days from the date when a notice under sub-paragraph (3) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any expenditure reasonably incurred by it in so doing is to be recoverable from the undertaker.

(5) In the event of any dispute as to whether sub-paragraph (3) 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 drainage authority must not, except in an emergency, exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined in accordance with paragraph 36.

Commencement Information

I74 Sch. 9 para. 33 in force at 6.6.2022, see art. 1

34.—(1) Subject to sub-paragraph (6), from the commencement of the construction of any specified work until the date falling 12 months from the date of completion of the specified work (“the maintenance period”), the undertaker must maintain in good repair and condition and free from obstruction the drainage work which is situated within the limits of deviation for that specified work and on land held by the undertaker for the purposes or in connection with the specified work, whether the drainage work is constructed under the powers conferred by this Order or is already in existence. E+W

(2) Upon the expiry of the maintenance period, the drainage work must be maintained by the highway authority for the highway to which the specified work relates.

(3) If any such drainage work is not maintained to the reasonable satisfaction of the drainage authority it may by notice require the person liable for maintenance of the drainage work to maintain the drainage work, or any part of it, to such extent as the drainage authority reasonably requires.

(4) If, within a reasonable period being not less than 14 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (3) on the person liable for maintenance, that person has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the person liable for maintenance.

(5) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (3), the drainage authority must not except in a case of emergency exercise the powers of sub-paragraph (4) until the dispute has been finally determined in accordance with paragraph 36.

(6) This paragraph does not apply to—

(a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; and

(b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.

(7) Subject to paragraphs 34(6)(b) and 36, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any ordinary watercourse for flood defence purposes is impaired, or that watercourse is otherwise damaged, so as to require remedial action, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the drainage authority and if the undertaker fails to do so, the drainage authority may make good the same and recover from the undertaker the expense reasonably incurred by it in doing so.

Commencement Information

I75 Sch. 9 para. 34 in force at 6.6.2022, see art. 1

35.—(1) The undertaker must make reasonable compensation for costs, charges and expenses which the drainage authority may reasonably incur in— E+W

(a) in the examination or approval of plans under this Part of this Schedule; and

(b) in the inspection of the construction of a specified work in respect of a key watercourse or any protective works required by the drainage authority under this Part of this Schedule.

(2) The maximum amount payable to the drainage authority under sub-paragraph (1)(a) or (b) is to be the same as would have been payable to the drainage authority in accordance with the scale of charges for pre-application advice and land drainage consent applications published on the drainage authority’s website from time to time.

Commencement Information

I76 Sch. 9 para. 35 in force at 6.6.2022, see art. 1

36.  Any dispute arising between the undertaker and the drainage authority under this Part of this Schedule is to be determined in accordance with article 53 (arbitration). E+W

Commencement Information

I77 Sch. 9 para. 36 in force at 6.6.2022, see art. 1

PART 5 E+W FOR THE PROTECTION OF NATIONAL GRID AS ELECTRICITY AND GAS UNDERTAKER

Application E+W

37.—(1) For the protection of National Grid as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Grid. E+W

(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Grid, where the benefit of this Order is transferred or granted to another person under article 9 (consent to transfer benefit of Order)—

(a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Grid and the transferee or grantee (as the case may be); and

(b) written notice of the transfer or grant must be given to National Grid on or before the date of that transfer or grant.

(3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Grid (but see paragraph 48(3)(b)).

Commencement Information

I78 Sch. 9 para. 37 in force at 6.6.2022, see art. 1

Interpretation E+W

38.  In this Part of this Schedule— E+W

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

“apparatus” means any electric lines or electrical plant as defined in the Electricity Act 1989(21), belonging to or maintained by National Grid or any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by National Grid for the purposes of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“commence” and “commencement” in paragraph 45 and 46 of this Part of this Schedule includes any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, will require the undertaker to submit for National Grid’s approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

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

“maintain” and “maintenance” includes the ability and right to do any of the following in relation to any apparatus or alternative apparatus of National Grid including construct, use, repair, alter, inspect, renew or remove the apparatus;

“National Grid ” means National Grid Electricity Transmission Plc or any successor as a licence holder within the meaning of Part 1 of the Electricity Act 1989 and National Grid Gas Plc or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986 as the context requires;

“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

“specified works” means any of the authorised development or activities undertaken in association with the authorised development (including maintenance) which—

(a)

will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 43(2) or otherwise; or

(b)

may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 43(2) or otherwise.

Commencement Information

I79 Sch. 9 para. 38 in force at 6.6.2022, see art. 1

39.  Except for paragraphs 40 (apparatus of National Grid in stopped up streets), 45 (retained apparatus: protection of electricity undertaker), 46 (retained apparatus: protection of gas undertaker), 47 (expenses), and 48 (indemnity) of this Part of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of National Grid, the other provisions of this Part of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provision of Part 3 of the 1991 Act. E+W

Commencement Information

I80 Sch. 9 para. 39 in force at 6.6.2022, see art. 1

Apparatus of National Grid in stopped up streets E+W

40.—(1) Where any street is stopped up under article 15 (permanent stopping up of streets and private means of access), if National Grid has any apparatus in the street or accessed via that street National Grid has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Grid, or procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph 43 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 45 or 46. E+W

(2) Notwithstanding the temporary closure, alteration, diversion or restriction of use of any street under the powers of article 13 (temporary stopping up and restriction of use of streets), National Grid is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the closure, alteration, diversion or restriction of use was in that street.

Commencement Information

I81 Sch. 9 para. 40 in force at 6.6.2022, see art. 1

Protective works to buildings E+W

41.  The undertaker must exercise the powers conferred by article 21 (protective work to buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Grid (such consent not to be unreasonably withheld). E+W

Commencement Information

I82 Sch. 9 para. 41 in force at 6.6.2022, see art. 1

Acquisition of land E+W

42.—(1) Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not possess temporarily acquire any interest in land or apparatus, or override any easement or other interest in land, of National Grid otherwise than by agreement. E+W

(2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out or maintenance of any part of the authorised development (or in such other timeframe as may be agreed between National Grid and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid or affect the provisions of any enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Grid and the undertaker acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid, and it will be the responsibility of the undertaker to procure and secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised development or maintenance thereof.

(3) The undertaker and National Grid agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid or other enactments relied upon by National Grid as of right or other use in relation to the apparatus, then the provisions in this Schedule prevail.

(4) Any agreement or consent granted by National Grid under paragraph 45 or 46 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

Commencement Information

I83 Sch. 9 para. 42 in force at 6.6.2022, see art. 1

Removal of apparatus E+W

43.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule, and any right of National Grid 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 National Grid in accordance with sub-paragraphs (2) to (5). E+W

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its reasonable satisfaction (taking into account paragraph 44(1)) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of, or secured by, the undertaker; 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 or land secured by 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, National Grid must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to so do.

(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Grid and the undertaker.

(5) National Grid must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the grant to National Grid 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 the provisions of this Part of this Schedule.

Commencement Information

I84 Sch. 9 para. 43 in force at 6.6.2022, see art. 1

Facilities and rights for alternative apparatus E+W

44.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and National Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid, such agreement not to be unreasonably withheld. E+W

(2) If the facilities and rights to be afforded by the undertaker under sub-paragraph (1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid 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 matter may be referred to arbitration in accordance with paragraph 52 (arbitration) and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Commencement Information

I85 Sch. 9 para. 44 in force at 6.6.2022, see art. 1

Retained apparatus: protection of electricity undertaker E+W

45.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity tower foundations. E+W

(2) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or involve embankment works within 15 metres of any apparatus, the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe—

(a) the exact position of the works;

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

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

(d) the position of all apparatus;

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

(f) any intended maintenance regimes; and

(g) an assessment of risks of rise of earth issues.

(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, in addition to the matters set out in sub-paragraph (2), include a method statement describing—

(a) details of any cable trench design including route, dimensions, clearance to pylon foundations;

(b) demonstration that pylon foundations will not be affected prior to, during and post construction;

(c) details of load bearing capacities of trenches;

(d) details of any cable installation methodology including access arrangements, jointing bays and backfill methodology;

(e) a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route;

(f) written details of the operations and maintenance regime for any cable, including frequency and method of access;

(g) assessment of earth rise potential if reasonably required by National Grid’s engineers; and

(h) evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to 26 tonnes in weight.

(4) The undertaker must not commence any works to which sub-paragraphs (2) or (3) apply until National Grid has given written approval of the plan so submitted.

(5) Any approval of National Grid required under sub-paragraph (4)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraphs (6) or (8); and

(b) must not be unreasonably withheld.

(6) In relation to any work to which sub-paragraphs (2) or (3) apply, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage, for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works executed under sub-paragraphs (2) or (3) must be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (6), as approved or as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(8) Where under sub-paragraph (6) National Grid requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(9) If National Grid in accordance with sub-paragraphs (6) or (8) 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 37 to 39 and 42 to 44 apply as if the removal of the apparatus had been required by the undertaker under paragraph 43(2).

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

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances.

(12) In sub-paragraph (11) “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Commencement Information

I86 Sch. 9 para. 45 in force at 6.6.2022, see art. 1

Retained apparatus: protection of gas undertaker E+W

46.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan and, if reasonably required by National Grid, a ground monitoring scheme in respect of those works. E+W

(2) The plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and describe—

(a) the exact position of the works;

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

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

(d) the position of all apparatus;

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

(f) any intended maintenance regimes.

(3) The undertaker must not commence any specified works until National Grid has given written approval of the plan so submitted.

(4) Any approval of National Grid required under sub-paragraph (3)—

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

(b) must not be unreasonably withheld or delayed.

(5) National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Specified works must only be executed in accordance with—

(a) the plan, submitted under sub-paragraph (1), as approved or as amended from time to time by agreement between the undertaker and National Grid; and

(b) such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(7) Where under sub-paragraph (6) National Grid requires any protective works to be carried out by itself or by the undertaker such protective works (whether of a temporary or permanent nature) must be carried out to National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).

(8) If National Grid in accordance with sub-paragraphs (5) or (7) 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 37 to 39 and 42 to 44 apply as if the removal of the apparatus had been required by the undertaker under paragraph 43(2).

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

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development or its maintenance—

(a) the undertaker must implement an appropriate ground mitigation scheme; and

(b) National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 47.

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances.

(12) In sub-paragraph (11), “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Commencement Information

I87 Sch. 9 para. 46 in force at 6.6.2022, see art. 1

Expenses E+W

47.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised development or its maintenance including without limitation— E+W

(a) any costs reasonably incurred by or compensation properly paid by National Grid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid—

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 43(3); or

(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

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

(d) the approval of plans;

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

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

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 52 (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 National Grid by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

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

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

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

(5) Any amount which apart from this sub-paragraph would be payable to National Grid in respect of works by virtue of sub-paragraph (1) will, 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 National Grid 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.

Commencement Information

I88 Sch. 9 para. 47 in force at 6.6.2022, see art. 1

Indemnity E+W

48.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will— E+W

(a) bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and

(b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party as aforesaid other than arising from any default of National Grid.

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—

(a) any damage or interruption to the extent that it is attributable to the neglect or default of National Grid, its officers, servants, contractors or agents;

(b) any part of the authorised development (including maintenance) carried out by National Grid in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 9 (consent to transfer benefit of Order).

(4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.

(5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.

Commencement Information

I89 Sch. 9 para. 48 in force at 6.6.2022, see art. 1

Enactments and agreements E+W

49.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and National Grid in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. E+W

Commencement Information

I90 Sch. 9 para. 49 in force at 6.6.2022, see art. 1

Co-operation E+W

50.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or National Grid requires the removal of apparatus under paragraph 43(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 45 or 46, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of National Grid’s undertaking and National Grid must use its best endeavours to co-operate with the undertaker for that purpose. E+W

(2) Whenever the undertaker’s or National Grid’s consent, agreement or approval is required in relation to plans, documents or other information submitted under this Schedule, or agreement is required to be reached between the parties under this Schedule, it must not be unreasonably withheld or delayed.

Commencement Information

I91 Sch. 9 para. 50 in force at 6.6.2022, see art. 1

Access E+W

51.  If in consequence of the agreement reached in accordance with paragraph 42(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction. E+W

Commencement Information

I92 Sch. 9 para. 51 in force at 6.6.2022, see art. 1

Arbitration E+W

52.  Save for differences or disputes arising under paragraphs 43(2), 43(4) and 44(1) any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article 53 (arbitration). E+W

Commencement Information

I93 Sch. 9 para. 52 in force at 6.6.2022, see art. 1

Notices E+W

53.  Notwithstanding article 46 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 45 or 46 must be sent to National Grid Plant Protection at [e-mail] or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing. E+W

Commencement Information

I94 Sch. 9 para. 53 in force at 6.6.2022, see art. 1

PART 6 E+W FOR THE PROTECTION OF CADENT GAS LIMITED

Application E+W

54.  For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect. E+W

Commencement Information

I95 Sch. 9 para. 54 in force at 6.6.2022, see art. 1

Interpretation E+W

55.  In this Part of this Schedule— E+W

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

“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by Cadent for the purposes of Cadent’s undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of Cadent for the purposes of Cadent’s undertaking and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“Cadent” means Cadent Gas Limited and includes its successors in title or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986(22);

“Cadent’s undertaking” means the rights, duties and obligations of Cadent Gas Limited as a public gas transporter within the meaning of section 7 (licensing of public gas transporters) of the Gas Act 1986 (as amended by the Gas Act 1995(23));

“commence” and “commencement” include any below ground surveys, monitoring, work operations, remedial work in respect of any contamination or other adverse ground conditions, the receipt and erection of construction plant and equipment, and non-intrusive investigations for the purpose of assessing ground conditions;

“deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

“facilities and rights” for construction and for maintenance include any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by Cadent (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence which, if exceeded, requires the undertaker to submit for Cadent’s approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

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

“maintain” and “maintenance” have effect as if Cadent’s existing apparatus was authorised development and as if the term maintain includes protect and use;

“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

“rights” includes restrictive covenants and, in relation to decommissioned apparatus, the surrender of rights, release of liabilities and transfer of decommissioned apparatus; and

“specified works” means any of the authorised development or activities (including maintenance) undertaken in association with the authorised development which—

(a)

will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under sub-paragraph 60(2) or otherwise; or

(b)

may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under sub-paragraph 60(2) or otherwise.

Commencement Information

I96 Sch. 9 para. 55 in force at 6.6.2022, see art. 1

On Street apparatus E+W

56.—(1) This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provisions of Part 3 of the 1991 Act, except for— E+W

(a) paragraphs 57, 62, 63 and 64; and

(b) where sub-paragraph (2) applies, paragraphs 60 and 61.

(2) This sub-paragraph applies where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing adopted public highway, notwithstanding that any diversion may be carried out under the provisions of Part 3 of the 1991 Act.

(3) Paragraph 63 (expenses) does not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

(b) the allowable costs are to be borne by the undertaker and Cadent in such proportions as may be prescribed by any such regulations.

Commencement Information

I97 Sch. 9 para. 56 in force at 6.6.2022, see art. 1

Apparatus of Cadent in stopped up streets E+W

57.—(1) Where any street is stopped up under article 15 (permanent stopping up of streets), if Cadent has any apparatus in the street or accessed via that street Cadent is entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to Cadent, or procure the granting to Cadent of, legal easements reasonably satisfactory to Cadent in respect of such apparatus and access to it prior to the stopping up of any such street or highway, but nothing in this paragraph affects any right of the undertaker or of Cadent to require the removal of that apparatus under paragraph 60. E+W

(2) Notwithstanding the temporary alteration, diversion or restriction of use of any street under the powers of article 13 (temporary stopping up and restriction of use of streets), Cadent will be at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as it would have been entitled to do immediately before such temporary alteration, diversion or restriction of use in respect of any apparatus which at the time of the stopping up or diversion was in that street.

Commencement Information

I98 Sch. 9 para. 57 in force at 6.6.2022, see art. 1

Protective works to buildings E+W

58.  The undertaker must exercise the powers conferred by article 21 (protective work to buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent (such consent not to be unreasonably withheld or delayed). E+W

Commencement Information

I99 Sch. 9 para. 58 in force at 6.6.2022, see art. 1

Acquisition of land E+W

59.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire any interest in land or appropriate, acquire, extinguish, interfere with or override any easement or other interest in land of Cadent otherwise than by agreement. E+W

(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out or maintenance of any part of the authorised development (or in such other timeframe as may be agreed between Cadent and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of Cadent or affect the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure or secure the consent to and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised development or maintenance thereof.

(3) The undertaker and Cadent agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus, including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent and other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Schedule prevail.

(4) Any agreement or consent granted by Cadent under paragraph 62 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

(5) As a condition of an agreement under sub-paragraph (1) that involves de-commissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement or other interest of Cadent in such decommissioned apparatus and release Cadent from all liabilities in respect of such de-commissioned apparatus from the date of such surrender.

(6) Where an undertaker acquires land which is subject to any Cadent right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 60 do not apply, the undertaker must, unless Cadent agrees otherwise—

(a) retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and

(b) (where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.

Commencement Information

I100 Sch. 9 para. 59 in force at 6.6.2022, see art. 1

Removal of apparatus E+W

60.—(1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 59, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of Cadent to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the facilities and rights referred to in sub-paragraph (2) have been provided, to the reasonable satisfaction of Cadent and in accordance with sub-paragraphs (2) to (5) inclusive. E+W

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Cadent advance 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 Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its satisfaction (taking into account paragraph 61(1)) the necessary facilities and rights—

(a) for the construction of alternative apparatus; and

(b) subsequently for the maintenance of that apparatus.

(3) If 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, Cadent must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to assist the undertaker in obtaining the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation must not extend to the requirement for Cadent to use its compulsory purchase powers to this end unless it (in its absolute discretion) elects to so do.

(4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between Cadent and the undertaker.

(5) Cadent must, after the alternative apparatus to be provided or constructed has been agreed, and subject to the prior grant to Cadent of such facilities and rights as are referred to in sub-paragraph (2) or (3), then proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to decommission or remove any apparatus required by the undertaker to be decommissioned or removed under the provisions of this Part of this Schedule.

Commencement Information

I101 Sch. 9 para. 60 in force at 6.6.2022, see art. 1

Facilities and rights for alternative apparatus E+W

61.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for Cadent facilities and rights in land for the access to, construction and maintenance of alternative apparatus in substitution for apparatus to be decommissioned or removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and Cadent and must be no less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed unless otherwise agreed by Cadent. E+W

(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under sub-paragraph (1) in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed, then the terms and conditions to which those facilities and rights are subject may be referred to arbitration in accordance with paragraph 68 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to Cadent as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Commencement Information

I102 Sch. 9 para. 61 in force at 6.6.2022, see art. 1

Retained apparatus: protection of Cadent E+W

62.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to Cadent a plan and, if reasonably required by Cadent, a ground monitoring scheme in respect of those works. E+W

(2) The plan to be submitted to Cadent under sub-paragraph (1) must include a method statement and describe—

(a) the exact position of the works;

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

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

(d) the position of all apparatus;

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

(f) any intended maintenance regimes.

(3) The undertaker must not commence any specified works until Cadent has given written approval of the plan so submitted (and the ground monitoring scheme if required).

(4) Any approval of Cadent given under sub-paragraph (3)—

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

(b) must not be unreasonably withheld or delayed and Cadent must meaningfully engage with the undertaker within 28 days of the date of submission of the plan under sub-paragraph (1).

(5) Cadent may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Specified works must only be executed in accordance with—

(a) the plan submitted under sub-paragraph (1) (and ground monitoring scheme if required), as approved or as amended from time to time by agreement between the undertaker and Cadent; and

(b) all conditions imposed under sub-paragraph (4)(a), and Cadent will be entitled to watch and inspect the execution of those works.

(7) Where Cadent requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to Cadent’s satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required prior to commencement.

(8) If Cadent, 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 54 to 56 and 59 to 61 apply as if the removal of the apparatus had been required by the undertaker under paragraph 60(2).

(9) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of the specified works, a new plan (and ground monitoring scheme if required), instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan (and ground monitoring scheme if required).

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development (including such an event attributable to its maintenance)—

(a) the undertaker must implement an appropriate ground mitigation scheme; and

(b) Cadent retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 63.

(11) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to Cadent notice as soon as is reasonably practicable and a plan of those works and must comply with the conditions imposed under sub-paragraph (4)(a) insofar as is reasonably practicable in the circumstances.

(12) In this paragraph, “emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Commencement Information

I103 Sch. 9 para. 62 in force at 6.6.2022, see art. 1

Expenses E+W

63.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent on demand, all charges, costs and expenses reasonably anticipated or reasonably incurred by Cadent in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised development including without limitation— E+W

(a) any costs reasonably incurred by or compensation properly paid by Cadent in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent—

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 60(3) if it elects to do so; or

(ii) exercising any compulsory purchase powers under this Order transferred to or benefitting Cadent;

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

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

(d) the approval of plans;

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

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

(g) any watching brief pursuant to sub-paragraph 62(6).

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph 68 (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 Cadent by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances (or it would be unlawful due to a statutory or regulatory change) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

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

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

(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will 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 Cadent in respect of works by virtue of sub-paragraph (1) will, 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 Cadent 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.

Commencement Information

I104 Sch. 9 para. 63 in force at 6.6.2022, see art. 1

Indemnity E+W

64.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) or in consequence of the construction, use, maintenance or failure of any of the authorised development (including works carried out under article 21 (protective work to buildings)) by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of Cadent, or there is any interruption in any service provided, or in the supply of any goods, by Cadent, or Cadent becomes liable to pay any amount to any third party, the undertaker will— E+W

(a) bear and pay on demand accompanied by an invoice or claim from Cadent, the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and

(b) indemnify Cadent for any other expenses, loss, demands, proceedings, damages, claims, penalty, compensation or costs properly incurred by, paid by or recovered from Cadent, by reason or in consequence of any such damage or interruption or Cadent becoming liable to any third party as aforesaid other than arising from any default of Cadent.

(2) The fact that any act or thing may have been done by Cadent on behalf of the undertaker or in accordance with a plan approved by Cadent or in accordance with any requirement of Cadent or under its supervision including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless Cadent fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker in respect of—

(a) any damage or interruption to the extent that it is attributable to the neglect or default of Cadent, its officers, servants, contractors or agents;

(b) any part of the authorised development carried out by Cadent in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 9 (consent to transfer benefit of the Order);

(c) any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable at the commencement of the relevant works referred to in sub-paragraph (1).

(4) Cadent must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.

Commencement Information

I105 Sch. 9 para. 64 in force at 6.6.2022, see art. 1

Enactments and agreements E+W

65.  Except where this Part of this Schedule provides otherwise, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Cadent in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made. E+W

Commencement Information

I106 Sch. 9 para. 65 in force at 6.6.2022, see art. 1

Co-operation E+W

66.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or Cadent requires the removal of apparatus under paragraph 60(2) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 62, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of Cadent’s undertaking and Cadent must use its best endeavours to co-operate with the undertaker for that purpose. E+W

(2) For the avoidance of doubt whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by Cadent or the taking of action by Cadent, it must not be unreasonably withheld or delayed.

Commencement Information

I107 Sch. 9 para. 66 in force at 6.6.2022, see art. 1

Access E+W

67.  If in consequence of any agreement reached in accordance with paragraph 59(1) or the powers conferred by this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as will enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction. E+W

Commencement Information

I108 Sch. 9 para. 67 in force at 6.6.2022, see art. 1

Arbitration E+W

68.  Save for differences or disputes arising under sub-paragraphs 60(2) and 60(4) any difference or dispute arising between the undertaker and Cadent under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Cadent, be determined by arbitration in accordance with article 53 (arbitration). E+W

Commencement Information

I109 Sch. 9 para. 68 in force at 6.6.2022, see art. 1

Notices E+W

69.  Notwithstanding article 46 (service of notices) any plans submitted to Cadent by the undertaker pursuant to sub-paragraph 62(1) must be sent via email to Cadent Gas Limited Plant Protection at [e-mail] as well as via post to Plant Protection, Cadent Gas Limited, Brick Kiln Street, Hinckley, Leicestershire, LE10 0NA, or such other address as Cadent may from time to time appoint instead for that purpose and notify to the undertaker in writing. E+W

Commencement Information

I110 Sch. 9 para. 69 in force at 6.6.2022, see art. 1

PART 7 E+W FOR THE PROTECTION OF TRANSPORT FOR LONDON

Application E+W

70.  The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and Transport for London. E+W

Commencement Information

I111 Sch. 9 para. 70 in force at 6.6.2022, see art. 1

Interpretation E+W

71.  In this Part of this Schedule— E+W

“Commuted Sum” means the sum to be paid by the undertaker to Transport for London for the future maintenance of any highway assets not previously forming part of the TLRN which will be transferred to Transport for London, as calculated in accordance with paragraph 73 of this Part;

“Detailed Local Operating Agreement” means an agreement to be made between the undertaker and Transport for London detailing the traffic management arrangements to be implemented during the carrying out of the authorised development;

“TfL Road” means any public, vehicular highway which is vested or vests or is intended at the completion of works to vest in or be otherwise maintainable by Transport for London;

“TLRN” means the Transport for London Road Network comprising highways for which Transport for London is the responsible highway authority; and

“Works” means any works authorised by the Order undertaken on, to or under any part of the TLRN or a TfL Road.

Commencement Information

I112 Sch. 9 para. 71 in force at 6.6.2022, see art. 1

Costs E+W

72.  The undertaker must pay to Transport for London in respect of the Works a sum equal to the whole of any costs and expenses which Transport for London reasonably incur in– E+W

(a) requests from the undertaker to participate in the design of any part of the authorised development, the examination or approval of design or construction information required for the Works including for the protection of the TLRN and for Work No. 29, and reaching agreement on the schedule of highway assets pursuant to paragraph 73;

(b) including the schedule of highway assets agreed pursuant to paragraph 73 within its road maintenance framework contracts;

(c) agreeing and operating a Detailed Local Operating Agreement;

(d) participation in road safety audits relating to the Works;

(e) inspecting the construction and completion of the Works including any remediation works;

(f) the issue of certificates relating to the Works required for the completion, hand over and defects;

(g) carrying out any surveys and testing which are reasonably required in connection with the construction of the Works; and

(h) the transfer or vesting in Transport for London of any land and rights acquired by the undertaker.

Commencement Information

I113 Sch. 9 para. 72 in force at 6.6.2022, see art. 1

Commuted Sum E+W

73.—(1) The undertaker must use reasonable endeavours to agree with Transport for London a schedule of new highway assets which are proposed to become the maintenance responsibility of Transport for London as a result of the authorised development under article 11 (construction and maintenance of new, altered or diverted streets and other structures) and article 16(1)(b) (classification of roads, etc.) of the Order. E+W

(2) Where the schedule prepared under paragraph (1) cannot be agreed, the matters of dispute shall be determined in accordance with paragraph 74.

(3) Following agreement of the schedule under sub-paragraph (1) or determination under subparagraph (2), Transport for London must prepare a calculation of the Commuted Sum based on the maintenance Transport for London considers to be required for the schedule of highway assets agreed under sub-paragraph (1) or determined under sub-paragraph (2) and must use reasonable endeavours to agree it with the undertaker.

(4) The undertaker must be provided with a complete breakdown of the calculation of the Commuted Sum by Transport for London under sub-paragraph (3) including any assumptions used.

(5) Where the calculation prepared under sub-paragraph (3) cannot be agreed, the matters of dispute shall be determined in accordance with paragraph 74.

(6) The undertaker must pay the Commuted Sum to Transport for London in one instalment within 10 working days of the later of—

(a) the date of completion of the authorised development; or

(b) the date of agreement of the value of the Commuted Sum under sub-paragraph (3) or determination under sub-paragraph (5).

Commencement Information

I114 Sch. 9 para. 73 in force at 6.6.2022, see art. 1

Disputes E+W

74.  Any difference arising between the undertaker and Transport for London under this Part of this Schedule (other than in difference as to the meaning or construction of this Part of this Schedule) shall be escalated to a more senior level within Transport for London and the undertaker and if the matters of dispute still cannot be resolved then they will be resolved by arbitration under article 53 (arbitration). E+W

Commencement Information

I115 Sch. 9 para. 74 in force at 6.6.2022, see art. 1

Articles 2 and 45

SCHEDULE 10 E+W DOCUMENTS TO BE CERTIFIED

Commencement Information

I116 Sch. 10 in force at 6.6.2022, see art. 1

The reference to a document in the table with a numbered regulation is a reference to the regulation as numbered in the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009(24).

(1) Document	(2) Document Reference	(3) Revision
Book of Reference – Regulation 5(2)(d)	TR010029/APP/4.3	4
Engineering drawings and sections – Regulation 5(2)(o), 5(4) and 6(2)	TR010029/APP/2.8	2
Environmental Statement – Main Report – Regulation 5(2)(a)	TR010029/APP/6.1	1
Environmental Statement – figures – Regulation 5(2)(a)	TR010029/APP/6.2	1
Environmental Statement – appendices– Regulation 5(2)(a)	TR010029/APP/6.3	1
Ground Investigation Report – Regulation 5(2)(q)	TR010029/EXAM/9.25	0
Habitats Regulation Assessment Report – Regulation 5(2)(g)	TR010029/APP/6.9	2
Land plans – Regulation 5(2)(i)	TR010029/APP/2.2	3
Location plan – Regulation 5(2)(o)	TR010029/APP/2.1	1
Outline Arboricultural Method Statement	TR010029/EXAM/9.64	1
Outline Archaeological Management Plan – Regulation 5(2)(q)	TR010029/EXAM/9.45	2
Outline Construction Environmental Management Plan – Regulation 5(2)(q)	TR010029/APP/7.2	4
Outline Landscape and Ecology Management and Monitoring Plan	R010029/APP/6.3	2
Outline Traffic Management Plan	TR010029/EXAM/9.52	1
Preliminary Environmental Design
Register of Environmental Actions and Commitments – Regulation 5(2)(q)	TR010029/APP/7.3	4
Scheme layout plans – Regulation 5(2)(o)	TR010029/APP/2.7	2
Special category land plans – Regulation 5(2)(i)(iv)	TR010029/APP/2.11	2
Speed limits and traffic regulations plans – Regulation 5(2)(o)	TR010029/APP/2.6	3
Statutory Nuisance Statement – Regulation 5(2)(f)	TR010029/APP/6.5	2
Streets, rights of way and access plans – Regulation 5(2)(k)	TR010029/APP/2.4	2
Water Framework Directive Assessment Compliance Report – Regulation 5(2)(a) and 5(2)(l)(iii)	TR010029/APP/6.7	1
Works plans – Regulation 5(2)(j)	TR010029/APP/2.3	3

(1)

1990 c. 43. Section 78A was inserted by section 57 of the Environment Act 1995 (c. 25) and amended by section 86(2) of the Water Act 2003 (c. 37).

(2)

S.I. 2017/1012.

(3)

1981 c. 69.

(4)

1971 c. 80.

(5)

1973 c. 26.

(6)

Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

(7)

Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016.

(8)

Section 11B was inserted by section 187(2) of the Housing and Planning Act 2016.

(9)

Section 12 was amended by section 56(2) of, and Part 1 of Schedule 9 to, the Courts Act 1971 (c. 23).

(10)

Section 13 was amended by sections 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

(11)

Section 20 was amended by paragraph 4 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34) and S.I. 2009/1307.

(12)

1989 c. 29. The definition of “electrical plant” (in section 64) was amended by paragraphs 24 and 38(1) and (3) of Schedule 6 to the Utilities Act 2000 (c. 27).

(13)

1986 c. 44. A new 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 (c. 27).

(14)

1991 c. 56.

(15)

Section 102(4) was amended by sections 96(1)(c) and 101(2) of, and Part 3 of Schedule 9 to, the Water Act 2003 (c. 37).

(16)

Section 104 was amended by sections 96(4) of, and Part 3 of Schedule 9 to, the Water Act 2003, section 42(3) of the Flood and Water Management Act 2010 (c. 29) and section 11(1) and (2) of, and paragraphs 2 and 91 of Schedule 7 to the Water Act 2014 (c. 21).

(17)

2003 c. 21.

(18)

See section 106 which was amended by section 4(3) to (9) of the Digital Economy Act 2017 (c. 30).

(19)

1991 c. 59. The definition of “drainage board” is in section 23(8), which was amended by paragraph 32 of Schedule 2 to the Flood and Water Management Act 2010 (c. 29).

(20)

1991 c. 59.

(21)

1989 c. 29. The definition of “electrical plant” (in section 64) was amended by paragraphs 24 and 38(1) and (3) of Schedule 6 to the Utilities Act 2000 (c. 27).

(22)

1986 c. 44.

(23)

1995 c. 45.

(24)

S.I. 2009/2264.