98. For the protection of Essex and Suffolk Water, the following provisions must, unless otherwise agreed in writing between the undertaker and Essex and Suffolk Water, have effect.E+W+S
Commencement Information
I1Sch. 15 para. 98 in force at 18.7.2023, see art. 1
99. In this Part of this Schedule—E+W+S
“alternative apparatus” means alternative apparatus adequate to enable ESW to fulfil its statutory functions in not less efficient a manner than previously;
“apparatus” means the following items belonging to or maintained by ESW within the Order limits-
mains, pipes, wells, boreholes, tanks, service reservoirs, pumping stations or other apparatus, structures, tunnels, shafts or treatment works or accessories (as defined in section 219(1) of the Water Industry Act 1991) belonging to or maintained or used by ESW for the purposes of water supply; and
any water mains, or service pipes which are the subject of a notice of intention to adopt under section 51A of the Water Industry Act 1991;
“ESW” means Northumbrian Water Limited, t/a Essex and Suffolk Water, company number 02366703, whose registered office is at Northumbria House, Abbey Road, Pity Me, Durham, DH1 5FJ;
“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 sections, drawings, specifications and method statements and drawings submitted for approval must include a plan to the scale of 1:500 based on the ordnance survey to locate the work in question, and plans and sections to a scale of between 1:200 to 1:25 to give details of the work in question; and
“specified work” means so much of the authorised development as is in, on, under, over or within the standard protection strips; and
“the standard protection strips” means strips of land falling the following distances to either side of the medial line of any relevant pipe or apparatus—
3 metres where the internal diameter of the pipe is less than 300 millimetres;
4.5 metres where the internal diameter of the pipe is over 300 and up to and including 600 millimetres; and
6 metres where the internal diameter of the pipe exceeds 600 millimetres
unless otherwise agreed.
Commencement Information
I2Sch. 15 para. 99 in force at 18.7.2023, see art. 1
100.—(1) Before commencing construction of a specified work, the undertaker must submit to ESW plans of the specified work and such further particulars available to it as ESW may reasonably require within 28 days of the submission of the plans.
(2) A specified work must not be constructed except in accordance with such plans as may be approved in writing by ESW or determined under paragraph 110.
(3) Any approval of ESW required under this paragraph—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been given if it is neither given nor refused within 42 days of the submission of the plans for approval, or submission of further particulars (where required by ESW under sub-paragraph (1) whichever is the later; and
(c)may be given subject to such reasonable requirements as ESW may make for the protection of its apparatus taking into account the terms of this Order.
(4) Any refusal under this paragraph must be accompanied by a statement of the reasons for refusal.
Commencement Information
I3Sch. 15 para. 100 in force at 18.7.2023, see art. 1
101. Without limiting the scope of paragraph 100, the requirements which ESW may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work as are reasonably necessary taking account of the terms of this Order to safeguard any apparatus against damage by reason of any specified work.E+W+S
Commencement Information
I4Sch. 15 para. 101 in force at 18.7.2023, see art. 1
102.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by ESW under paragraph 101, must be constructed—E+W+S
(a)without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and
(b)to the reasonable satisfaction of ESW,
and an officer of ESW is entitled to watch and inspect the construction of such works.
(2) The undertaker must give to ESW—
(a)not less than 28 days’ notice in writing of its intention to commence construction of any specified work; and
(b)notice in writing of its completion not later than seven days after the date on which it is brought into use.
Commencement Information
I5Sch. 15 para. 102 in force at 18.7.2023, see art. 1
103. If by reason of the construction of a specified work or of the failure of any a specified work any apparatus is damaged, the damage must be made good by the undertaker as soon as reasonably practicable to the reasonable satisfaction of ESW and, if the undertaker fails to do so, ESW may make good the damage and recover from the undertaker the expense reasonably incurred by it in doing so.E+W+S
Commencement Information
I6Sch. 15 para. 103 in force at 18.7.2023, see art. 1
104. The undertaker must make reasonable compensation for costs, charges and expenses which ESW may reasonably incur—E+W+S
(a)in the examination or approval of plans under this Part of this Schedule;
(b)in inspecting the construction of the specified work or any protective works required by ESW under this Part of this Schedule and
(c)in carrying out any surveys or tests by ESW which are reasonably required in connection with the construction of the specified work.
Commencement Information
I7Sch. 15 para. 104 in force at 18.7.2023, see art. 1
105.—(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 over which access to any apparatus is enjoyed or requires that ESW’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of ESW to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of ESW in accordance with sub-paragraphs (2) to (7).
(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 ESW 56 days 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 ESW reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to ESW 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, ESW must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable 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 ESW and the undertaker both acting reasonably with a view to securing the efficient implementation of the necessary work, the avoidance of unnecessary delay and the continued fulfilment by both parties of their service obligations, which in the case of ESW shall be to a standard no less than that achieved prior to the removal of the apparatus which the alternative apparatus replaces, or in default of agreement settled by arbitration in accordance with article 39 (arbitration).
(5) ESW must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 39 (arbitration), and after the grant to ESW 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.
(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to ESW that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by ESW, may, subject to the written consent of ESW, which shall not be unreasonably withheld, and in accordance with ESW’s requirements and specifications be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of ESW.
(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
(8) When alternative apparatus is to be or is being substituted for existing apparatus, the undertaker shall, before taking or requiring any further step in such substitution works, use all reasonable endeavours to comply with Northumbrian Water’s reasonable requests for a reasonable period of time to enable Northumbrian Water to:
(a)Make network contingency arrangements; or
(b)Bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question.
Commencement Information
I8Sch. 15 para. 105 in force at 18.7.2023, see art. 1
106.—(1) Where, in accordance with the provisions of this part of this Schedule, the undertaker affords to ESW facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and ESW or in default of agreement settled by arbitration in accordance with article 39 (arbitration).E+W+S
(2) In settling those terms and conditions in respect of alternative apparatus the arbitrator must:
(a)Give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the undertaker: and
(b)So far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions if any, applicable to the apparatus for which the alternative apparatus is to be substituted and have regard to ESW’s statutory obligations.
(3) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to ESW 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 ESW as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
Commencement Information
I9Sch. 15 para. 106 in force at 18.7.2023, see art. 1
107.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to ESW the reasonable expenses incurred by it 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 105(2) F1....E+W+S
(2) There is to 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,
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 39 (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 ESW by virtue of sub-paragraph (1) is to 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 where such extension is required in consequence of the execution of any such works as are referred to in paragraph 105(2); and
(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
Textual Amendments
F1Word in Sch. 15 para. 107(1) omitted (21.11.2023) by virtue of The Longfield Solar Farm (Correction) Order 2023 (S.I. 2023/1241), art. 1(2), Sch.
Commencement Information
I10Sch. 15 para. 107 in force at 18.7.2023, see art. 1
108.—(1) Subject to sub-paragraphs (2) and (4), if for any reason or in consequence of the construction maintenance or failure of any of authorised development by or on behalf of the undertaker or of any of the works referred to in this Part of this Schedule or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of ESW, or there is any interruption in any service provided, or of any access to any apparatus, or in the supply of any goods, or services, by ESW or the performance of ESW’s functions, or any disruption to the normal operation of ESW’s apparatus resulting in an increase in the costs incurred by ESW in performing it’s functions or in any loss, damages or penalty or fines, or ESW becoming liable to pay any amount to any third party, the undertaker must—
(a)bear and pay within 30 days of demand the cost reasonably incurred by ESW in making good any damage or restoring the supply or service;
(b)make reasonable compensation to ESW for any other expenses, loss, damages, penalty or costs incurred by ESW,
by reason or in consequence of any such damage or interruption or disruption or ESW becoming liable to pay any third party aforesaid.
(2) The fact that any act or thing may have been done by ESW on behalf of the undertaker or in accordance with a plan approved by ESW or in accordance with any requirement of ESW or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).
(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 ESW, its officers, servants, contractors or agents.
(4) ESW 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 which will not be unreasonably withheld or delayed by the undertaker and which, if the undertaker withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
Commencement Information
I11Sch. 15 para. 108 in force at 18.7.2023, see art. 1
109. Any agreement or approval of ESW required under these provisions—
(a)must not be unreasonably withheld or delayed;
(b)is deemed to have been given if it is neither given nor refused within 42 days of the date of submission of a request for such agreement or approval, or, in the case of a refusal, if it is not accompanied by a statement of the grounds of refusal; and
(c)any request for agreement or approval of ESW required under these provisions must be sent to companysecretary@nwl.co.uk. or such other address as ESW may from time to time appoint instead for that purpose and notify to the undertaker in writing.
Commencement Information
I12Sch. 15 para. 109 in force at 18.7.2023, see art. 1
110. Any dispute arising between the undertaker and ESW under this Part of this Schedule must be referred to and settled by arbitration under article 39 (arbitration) unless otherwise agreed in writing between the undertaker and ESW.E+W+S
Commencement Information
I13Sch. 15 para. 110 in force at 18.7.2023, see art. 1
111. If in consequence of the exercise of the powers conferred by the Order, previously unmapped mains or other apparatus are identified by the undertaker, notification of the location of such assets will immediately be given to ESW and afforded the same protection as other ESW assets.E+W+S
Commencement Information
I14Sch. 15 para. 111 in force at 18.7.2023, see art. 1