The London Gateway Port Harbour Empowerment Order 2008

• (1) Before the commencement of construction of the first tidal work to be constructed following approval pursuant to article 16 (tidal works not to be constructed without approval of the Secretary of State), the PLA may, at the Harbour Authority’s expense, carry out a survey of such parts of the river as might be affected by sedimentation, scouring, currents or wave action that might result from the construction of such of the authorised works as would constitute tidal works if they were to be constructed, for the purposes of establishing the condition of the river at that time.

• (2) Before the commencement of construction of any other tidal work approved pursuant to article 16 (tidal works not to be constructed without approval of the Secretary of State), the PLA may, at the Harbour Authority’s expense, carry out a survey of such parts of the river as might be affected by sedimentation, scouring, currents or wave action resulting from that tidal work for the purpose of establishing the condition of the river at that time.

• (3) The PLA may carry out such surveys of the river as are reasonably required during the construction of any tidal work to ascertain the effect of that tidal work on the river and the PLA shall make available to the Harbour Authority the results of any such survey.

• (4) After completion of, respectively, any tidal work and all the tidal works constructed under this Order, the PLA may, at the Harbour Authority’s expense carry out a further survey of the parts of the river which were surveyed prior to the construction of that work, or as the case may be a survey of the completed tidal works as so constructed, for the purpose of establishing the condition of the river and the effect that the tidal work is, or as the case may be the tidal works are, having on navigation, the flow and the regime of the river and the exercise of the PLA’s functions.

• (5) The PLA shall not under this paragraph carry out a survey of any part of the river as respects which the Harbour Authority has provided to the PLA survey material which the PLA is satisfied establishes the condition of the river, and in the case of a survey under sub-paragraph (3), the effect of the tidal work, or as the case may be the tidal works.

Sedimentation, etc.: remedial action

15

• (1) This paragraph applies if any part of the river becomes subject to sedimentation, scouring, currents or wave action which—

• (a) is, during the period beginning with the commencement of the construction of that tidal work and ending with the expiration of 10 years after the date on which all the tidal works constructed under this Order are completed, wholly or partly caused by a tidal work; and

• (b) for the safety of navigation or for the protection of works in the river, should in the reasonable opinion of the PLA be removed or made good.

• (2) The Harbour Authority shall either—

• (a) pay to the PLA any additional expense to which the PLA may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or

• (b) carry out the necessary dredging at its own expense and subject to the prior approval of the PLA, such prior approval not to be unreasonably withheld or delayed;

and the expenses payable by the Harbour Authority under this paragraph include any additional expenses accrued or incurred by the PLA in carrying out surveys or studies in connection with the implementation of this paragraph.

Indemnity

16

• (1) The Harbour Authority shall be responsible for and make good to the PLA all financial costs or losses not otherwise provided for in this Schedule which may reasonably be incurred or suffered by the PLA by reason of—

• (a) the construction or operation of the authorised works or the failure of the authorised works;

• (b) anything done in relation to a mooring or buoy pursuant to paragraph 8; or;

• (c) any act or omission of the Harbour Authority, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised works or dealing with any failure of the authorised works;

and the Harbour Authority shall indemnify the PLA from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission.

• (2) The fact that any act or thing may have been done—

• (a) by the PLA on behalf of the Harbour Authority; or

• (b) by the Harbour Authority, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the PLA, or in a manner approved by the PLA, or under its supervision or the supervision of its duly authorised representative;

shall not (if it was done or required without negligence on the part of the PLA or its duly authorised representative, employee, contractor or agent) excuse the Harbour Authority from liability under the provisions of this paragraph.

• (3) The PLA shall give the Harbour Authority reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand shall be made without the prior consent of the Harbour Authority.

Dedication of land for conservation, etc.

17

• (1) Before dedicating or designating any land under article 47 (conservation), the Harbour Authority shall provide the PLA with a plan of the land and full particulars of the use to which it is intended to be put, and shall provide such further particulars as the PLA may, within 21 days from the day on which the plan is submitted under this paragraph, reasonably require.

• (2) The Harbour Authority shall not dedicate or designate any land under article 47 (conservation) except in accordance with such plans and particulars as may be approved by the PLA or determined under paragraph 24.

• (3) Any approval of the PLA required under this paragraph shall not be unreasonably withheld but may be given subject to such reasonable requirements as the PLA may make for the protection of—

• (a) traffic in, or the flow or regime of, the river;

• (b) the use of its operational land or the river for the purpose of performing its functions; or

• (c) the performance of any of its functions connected with environmental protection;

including conditions as to the proposed use of the land, its management and any environmental mitigation.

• (4) Any such approval shall be deemed to have been refused if it is neither given nor refused within 35 days of the day on which the plans are submitted under sub-paragraph (1).

Statutory functions

18

• (1) Subject to article 4(3) and this paragraph, any function of the Harbour Authority or any officer of the Harbour Authority, whether conferred by or under this Order or any other enactment, shall be subject to—

• (a) any enactment relating to the PLA;

• (b) any byelaw, direction or other requirement made by the PLA or its Harbour Master under any enactment; and

• (c) any other exercise by the PLA or its Harbour Master of any function conferred by or under any enactment.

• (2) The Harbour Authority or Dockmaster shall not take any action in the river outside the area of jurisdiction under sections 57, 65 and 69 of the 1847 Act as incorporated by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847) except with the consent of the Harbour Master, which shall not be unreasonably withheld.

• (3) The Dockmaster shall not give or enforce any special direction to any vessel under section 52 of the 1847 Act, as incorporated by article 3 (incorporation of the Harbours, Docks and Piers Clauses Act 1847), if to do so would conflict with a special direction given to the same vessel by the Harbour Master.

• (4) That part of the port premises not in the river shall not be “port premises” for the purposes of the 1968 Act.

• (5) The PLA shall consult the Harbour Authority before making any byelaw under the 1968 Act which directly applies to or which could directly affect the construction, operation or maintenance of London Gateway Port or the port premises.

• (6) The PLA or the Harbour Master (as appropriate) shall consult the Harbour Authority before giving any general direction under the 1968 Act which directly affects the construction, operation or maintenance of London Gateway Port or the port premises.

Vesting of reclaimed river bed

19

• (1) Section 72 of the 1968 Act (vesting of embanked land) shall apply so as—

• (a) to vest in the Harbour Authority any reclaimed land created by the construction of Works Nos. 11 and 12 (Sheets Nos. 216 and 217 of the deposited plans) on the completion by the PLA of a separate certificate relating to that land; and

• (b) to enable the PLA to issue one or more certificates, each relating to part only of the reclaimed land so created.

• (2) The PLA shall not be required to issue a certificate under sub-paragraph (1) in relation to any part of Works Nos. 11 and 12 (Sheets Nos. 216 and 217 of the deposited plans) unless—

• (a) the average level of the reclaimed land the subject of the certificate is not less than 1 metre above mean high water level and no part of that land is below mean high water level;

• (b) the reclaimed land the subject of the certificate forms an identifiable section of the reclamation works by comprising reclaimed land surrounded by a bund which is connected to the river bank; and

• (c) the compensation payable in respect of that land in accordance with paragraph 20 has been paid to the PLA.

Compensation for river bed

20

Notwithstanding paragraph 3, and unless otherwise agreed in writing between the Harbour Authority and the PLA, compensation shall be payable to the PLA in respect of any tidal work (including any reclamation) and any rights required in connection with such tidal work as if the Harbour Authority had been required—

• (a) to obtain a licence for the work under section 66 (Licensing of works) of the 1968 Act; and

• (b) to pay consideration for the licence determined in accordance with the provisions of section 67 (Consideration for licence) of that Act;

and the PLA’s costs incurred in connection with the determination of such compensation shall be recoverable from the Harbour Authority.

Maintenance dredging

21

For the avoidance of doubt, section 73 of the 1968 Act shall apply to any maintenance dredging carried out by the Harbour Authority.

Consideration for dredged material

22

• (1) The Harbour Authority shall pay to the PLA for material dredged by the Harbour Authority under this Order from so much of the river as is vested in the PLA consideration calculated at a rate agreed between them and otherwise in accordance with this paragraph.

• (2) The Harbour Authority shall pay consideration under sub-paragraph (1) as respects material dredged in the course of the construction of the works authorised by article 13 (power to dredge) based on the quantity of such material that—

• (a) is not used for the construction of—

• (i) the authorised works;

• (ii) any other works related to the construction of London Gateway Port; or

• (iii) the related development; and

• (b) is sold by the Harbour Authority or by any other person exercising any powers under this Order.

Removal of wrecks and obstructions, etc.

23

• (1) Before exercising any power under section 252 of the Merchant Shipping Act 1995[^f00040] or under section 56 of the 1847 Act, the Dockmaster shall notify the Harbour Master.

• (2) The Dockmaster shall comply with any reasonable instructions that the Harbour Master may give in relation to the exercise of the powers referred to in sub-paragraph (1).

Disputes

24

Any dispute arising between the Harbour Authority and the PLA under this Schedule shall be determined by arbitration as provided in article 66 (arbitration).

SCHEDULE 9 — FOR THE PROTECTION OF THE TRINITY HOUSE LIGHTHOUSE SERVICE

General

1

The provisions of this Schedule shall, unless otherwise agreed in writing between the Harbour Authority and the Trinity House, have effect for the protection of the Trinity House, and the users of the river.

2

Nothing in this Order shall prejudice or derogate from any of the powers, jurisdiction, authority, rights, duties or privileges of the Trinity House.

Indemnity

3

• (1) The Harbour Authority shall be responsible for and reimburse the Trinity House for all costs, charges, damages, expenses and losses of whatsoever nature reasonably incurred by the Trinity House—

• (a) by reason of the temporary repositioning of buoys in connection with the carrying out of works authorised by article 13 (power to dredge); or

• (b) by reason of any act or omission of the Harbour Authority, its employees, contractors or agents or others whilst engaged upon the construction or maintenance of the works authorised by article 13 (power to dredge);

and the Harbour Authority shall indemnify the Trinity House from and against all liabilities, actions, claims and demands arising out of or in connection with the works authorised by article 10 (power to construct, etc., works) provided that the claims and demands do not arise through the negligence of the Trinity House, its employees, agents or servants.

SCHEDULE 10 — FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

General

1

• (1) The provisions of this Schedule shall, unless otherwise agreed in writing between the Harbour Authority and the Environment Agency (“the Agency”), have effect for the protection of the Agency.

• (2) Where any consent, approval or agreement is required to be given by the Agency pursuant to this Schedule, it shall not be unreasonably withheld or delayed.

Definitions applying to this Schedule

2

In this Schedule—

• “accumulation” means any accumulation of silt or other material causing damage or a reasonable expectation of damage to flood defences managed by the Agency;

• “construction” includes maintenance and “construct” and “constructed” shall be construed accordingly;

• “damage” includes scouring, erosion and environmental damage and “damaged” shall be construed accordingly;

• “drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure or any appliance constructed or used for land drainage, flood defence or tidal monitoring;

• “erosion” means any erosion of the bed or shore of the sea or of the bed or banks of any river;

• “excluded work” means a tidal work as defined in article 2(1) and any work referred to in article 13 (power to dredge);

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

• “plans” includes sections, drawings, specifications and method statements;

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to— affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work; affect the flow, purity or quality of water in any watercourse or other surface waters or ground water; cause obstruction to the free passage of fish or damage to any fishery; or affect the conservation, distribution or use of water resources; and

• “watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows (whether or not the flow is intermittent) except a public sewer.

Tidal works

3

• (1) At the same time as submitting any plans and sections for any tidal work or operation to the PLA in accordance with paragraph 2 of Schedule 8, the Harbour Authority shall provide such plans and sections to the Agency and at the same time as the Harbour Authority provides any further particulars to the PLA pursuant to paragraph 2 of Schedule 8, the Harbour Authority shall provide such further particulars to the Agency.

• (2) Within 21 days of the later of—

• (a) the receipt of such plans and sections; or

• (b) the receipt of any such further particulars,

the Agency shall provide the PLA with its opinion on the plans and sections and further particulars (if any).

Pre-conditions to commencing specified work

4

• (1) Before beginning to construct any specified work other than an excluded work, the Harbour Authority shall submit to the Agency plans of the specified work and such further particulars available to it as the Agency may reasonably require.

• (2) Any specified work other than an excluded work shall not be constructed except in accordance with such plans as may be approved in writing by the Agency, or settled in accordance with paragraph 13(1).

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

• (a) shall be deemed to have been given if it is neither given nor refused in writing and with a statement of the grounds for refusal within two months of the submission of plans for approval; and

• (b) may be given subject to such reasonable requirements as the Agency may impose for—

• (i) the protection of any drainage work;

• (ii) the protection of the fishery;

• (iii) the protection of water resources;

• (iv) the prevention of flooding;

• (v) the prevention of pollution; and

• (vi) the discharge of its environmental and recreational statutory duties (so far as may be necessary).

• (4) Without prejudice to the generality of sub-paragraphs (1), (2) and (3), the requirements which the Agency may impose under those sub-paragraphs include—

• (a) conditions as to the time and the manner in which any other work or operation is to be carried out; or

• (b) conditions requiring the Harbour Authority at its own expense to—

• (i) construct such protective works (“the protective works”), whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments and other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary to safeguard any drainage work against damage or 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 a specified work;

• (ii) provide or maintain means of access for the Agency; or

• (iii) provide, maintain and operate arrangements for dealing with any pollution incidents which may occur during and as a result of the construction of the specified works.

• (5) The Harbour Authority shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain—

• (a) in the examination or approval of plans under this paragraph; or

• (b) in the inspection of the construction of the specified works affecting a drainage work or any protective works required by the Agency under this Schedule.

• (6) Subject to sub-paragraphs (1) and (2), any specified work other than an excluded work and all protective works, shall be constructed—

• (a) within such period (if any) as the Agency may approve at the time of approval or, upon an application by the Harbour Authority, may approve afterwards;

• (b) in accordance with the plans approved or deemed to have been approved or settled under this Schedule; and

• (c) to the reasonable satisfaction of the Agency;

and the Agency shall be entitled by its officer to watch and inspect the construction of such works.

• (7) The Harbour Authority shall give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work other than an excluded work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

• (8) If any part of a specified work other than an excluded work comprising a structure in, over or under a watercourse is constructed otherwise than in accordance with the requirements of this Schedule, the Agency may by notice in writing require the Harbour Authority at the Harbour Authority’s own expense to comply with the requirements of this Schedule or, if the Harbour Authority so elects and the Agency consents in writing to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent as the Agency reasonably requires.

• (9) Subject to sub-paragraph (10), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (8) is served on the Harbour Authority, it has failed to begin taking steps to comply with the requirements of the notice and thereafter complete them within such reasonable period as may be specified in such notice, the Agency may execute the works specified in the notice and any expenditure reasonably incurred by it in so doing shall be recoverable from the Harbour Authority.

• (10) In the event of any dispute as to whether sub-paragraph (8) is properly applicable to any work in respect of which notice has been served under that sub-paragraph or as to the reasonableness of the requirements of such a notice, the Agency shall not, except in a case of emergency, exercise the powers conferred by sub-paragraph (9) until the dispute has been finally determined.

Survey of any drainage work liable to be affected by a specified work

5

Before commencing the construction of a specified work liable to affect a drainage work the Harbour Authority shall procure at its expense, in liaison with and to the reasonable satisfaction of the Agency, a survey of any drainage work liable to be affected by that specified work.

Maintenance by Harbour Authority of drainage works within its jurisdiction

6

• (1) Subject to sub-paragraph (2), the Harbour Authority shall, from the commencement of the construction of any specified work and except to the extent that any approval given by the Agency under this Schedule permits otherwise, maintain in good repair and condition and free from obstruction any drainage work which is situated within the jurisdiction of the Harbour Authority or which it otherwise has control of or is in occupation of for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers of the Order or is already in existence.

• (2) The obligation imposed on the Harbour Authority under sub-paragraph (1) does not apply where the Agency or another person is liable to maintain any such drainage work and is not precluded by the exercise of the powers of the Order from doing so.

• (3) If any drainage work referred to in sub-paragraph (1) is not maintained in good repair and free from obstruction the Agency may by notice in writing require the Harbour Authority to repair and restore the drainage work, or any part thereof, or (if the Harbour Authority so elects and the Agency in writing consents to remove the specified work and restore the site (including sea defences) to its former condition, to such extent and within such limits as the Agency reasonably requires.

• (4) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of a specified work is served under sub-paragraph (3) on the Harbour Authority, the Harbour Authority has failed to begin taking steps to comply with the reasonable requirements of the notice and thereafter completed them within such reasonable period as may be specified in the notice, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the Harbour Authority.

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

Impairment of efficiency of drainage work for flood defence

7

If, by reason of the construction of a specified work or of the failure of any specified work or of the Harbour Authority to maintain it, the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage shall be made good by the Harbour Authority to the reasonable satisfaction of the Agency and if the Harbour Authority fails to do so within such reasonable period as the Agency may require by notice in writing to the Harbour Authority, the Agency may make good the same and recover from the Harbour Authority the expense reasonably incurred by it in so doing.

Damage to flood defences managed by the Agency

8

• (1) If, during the construction of a specified work or within 10 years after the completion of a specified work, there is caused or created an accumulation or erosion or alteration of the tidal flow or littoral drift which causes damage, or reasonable expectation of damage, to flood defences, the Harbour Authority shall, if it is proven to have caused the damage or reasonable expectation of damage, remedy to the extent of its causation such accumulation, erosion, alteration of tidal flow or littoral drift to the extent and commensurate with the damage it is proven to have caused, in the manner specified in sub-paragraph (4) and, if it refuses or fails so to do, the Agency may itself cause work to be done and may recover the reasonable cost of such work from the Harbour Authority.

• (2) Should any accumulation or erosion or alteration of the tidal flow or littoral drift which causes damage or reasonable expectation of damage, arise within the said period of 10 years and be remedied in accordance with sub-paragraph (1), any recurrence of such accumulation or erosion or alteration of the tidal flow or littoral drift proven to be caused by the specified works shall from time to time be so remedied by the Harbour Authority during the said period of 10 years and at any time thereafter, save that the Harbour Authority’s obligation under this paragraph shall cease in the event that following the remedying of any accumulation or erosion or alteration of the tidal flow or littoral drift a period of 10 years elapses without any further accumulation or erosion or alteration of the tidal flow or littoral drift.

• (3) In sub-paragraphs (1) and (2), “damage” means, in the context of damage to flood defence capability or operation, any damage affecting the following—

• (a) the efficacy of flood defences;

• (b) the bed or banks of the river; or

• (c) the structure or operation of any outfall, flood or sea defences or any jetty or other structure under the jurisdiction of the Agency for the purposes of the Water Resources Act 1991[^f00041].

• (4) For the purposes of sub-paragraphs (1) and (2)—

• (a) in the case of an accumulation, the remedy shall be its removal or such other protective works or measures as may be reasonably required by the Agency; and

• (b) in the case of erosion or alteration of tidal flow or littoral drift, the remedy shall be the carrying out of such reconstruction works and other protective works or measures as may be reasonably required by the Agency.

• (5) In the event that surveys, inspections, tests or sampling establish that such accumulation or erosion or alteration of tidal flow or littoral drift would have been caused in any event by factors other than the construction of a specified work, the Harbour Authority shall be liable to remedy such accumulation or erosion or alteration of tidal flow or littoral drift only to the extent that the same is attributable to a specified work.

Protection of the fishery

9

• (1) The Harbour Authority shall take all such measures as may be reasonably practicable to prevent any significantly detrimental interruption of the free passage of fish in the fishery during the construction of any specified work.

• (2) If by reason of—

• (a) the construction of a 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 written notice on the Harbour Authority 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 to a fishery, the Harbour Authority fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from the Harbour Authority the expense reasonably incurred by it in doing so.

• (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 Harbour Authority the reasonable cost of so doing provided that written notice specifying those steps is served on the Harbour Authority as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

Indemnity as to costs and expenses

10

• (1) The Harbour Authority shall indemnify the Agency in respect of all reasonable and proper costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain in the inspection, for the purposes of compliance with this Schedule, of the construction of the specified works or protective works required by the Agency under this Schedule.

• (2) The Harbour Authority shall indemnify the Agency from all claims, demands, proceedings, costs, damages or expenses or loss, which may be made or taken against, or recovered from or incurred by the Agency by reason of—

• (a) any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

• (b) any damage to the fishery in so far as it has not already been compensated;

• (c) any raising or lowering of the water table in land adjoining the authorised works or any sewers, drains and watercourses;

• (d) any flooding or increased flooding of land adjoining the authorised works; or

• (e) inadequate water quality in any watercourse or other surface waters or in any groundwater;

which is caused by the construction of any of the specified works or any act or omission of the Harbour Authority, its contractors, agents or employees whilst engaged upon the specified works.

• (3) The Agency shall give to the Harbour Authority reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand shall be made without the consent of the Harbour Authority which shall not be unreasonably withheld and if such consent is not given by the Harbour Authority, the Agency shall diligently defend such claim or demand.

11

The fact that any work or thing has been executed or done by the Harbour Authority in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve the Harbour Authority of any liability under paragraph 10.

Approvals deemed and not deemed

12

• (1) For the purposes of section 109 of the Water Resources Act 1991 (structures in, over or under watercourses) as applying to the construction of any specified work, any approval given or deemed to be given by the Agency under this Schedule with respect to such construction shall be deemed also to constitute a consent under that section.

• (2) Section 23 of the Land Drainage Act 1991[^f00042] (prohibition on obstructions, etc. in watercourses) andany byelaws made under thatAct or under the Water Resources Act 1991 shall not apply to anything done under or in pursuance of this Order.

• (3) Subject to sub-paragraphs (1) and (2) and except as otherwise provided by this Schedule, nothing in this Order shall prejudice or affect in their application to the Agency the powers, rights, jurisdictions and obligations conferred, arising or imposed under the Land Drainage Act 1991, the Salmon and Freshwater Fisheries Act 1975[^f00043], the Water Resources Act 1991 or any other enactment, byelaw or regulation relating to the Agency.

Arbitration in respect of differences arising under this Schedule between the parties

13

• (1) Provided the Harbour Authority and the Agency agree, any difference arising between the Harbour Authority and the Agency under this Schedule (other than a difference as to its meaning or construction) shall be referred to and settled by arbitration in the manner provided by article 66 (arbitration) but where the Harbour Authority and the Agency do not agree, any difference shall be determined by the Secretary of State for Transport and the Secretary of State for Environment, Food and Rural Affairs, acting jointly.

• (2) In the case of a conflict between any approval or consent given by the Agency pursuant to this Schedule and any condition or restriction imposed on any approval by the Secretary of State under article 16 (tidal works not to be constructed without approval of the Secretary of State), the terms of the approval of the Secretary of State shall prevail.

SCHEDULE 11 — FOR THE PROTECTION OF NATIONAL GRID GAS PLC AND OTHER STATUTORY UNDERTAKERS

Apparatus of statutory undertakers, etc., on land acquired

1

• (1) Subject to the following provisions of this paragraph, sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers, etc. and power of statutory undertakers, etc. to remove or re-site apparatus) shall apply in relation to any land acquired under this Order, or which is held by the Harbour Authority and is appropriated or used (or about to be used) by it for the purposes of the Order or purposes connected therewith, and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly.

• (2) In the provisions of the 1990 Act, as applied by sub-paragraph (1), references to the appropriate Minister are references to the Secretary of State.

• (3) Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the Harbour Authority compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

• (4) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which paragraph 2 or Part 3 of the 1991 Act applies.

• (5) In this paragraph—

• “public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003[^f00044]; and

• “public utility undertakers” has the same meaning as in the 1980 Act.

Protection for National Grid Gas plc

2

• (1) For the protection of the undertaker referred to in this Schedule the following provisions shall, unless otherwise agreed in writing between the Harbour Authority and the undertaker, have effect.

• (2) In the remaining provisions of this Schedule—

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

• “apparatus” means any mains, pipes or other apparatus belonging to or maintained by the undertaker for the purposes of gas supply (not being apparatus in respect of which the relations between the Harbour Authority and the undertaker are regulated by the provisions of Part 3 of the 1991 Act) and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “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 method statements;

• “specified work” means any of the authorised works which will or may be situated over, or within 15 metres measured in any direction of, or may in any way adversely affect any apparatus the removal of which has not been required under paragraph 3; and

• “the undertaker” means National Grid Gas plc, whose registered office is 1-3 Strand, London WC2N 5EH.

3

• (1) If, in the exercise of any of its powers granted under this Order, the Harbour Authority serves notice on the undertaker that it intends to develop land affecting the apparatus of the undertaker, that apparatus shall not be removed under this Schedule and any right of the undertaker to use, maintain, repair, renew or inspect that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker.

• (2) If, for the purpose of executing any authorised works in, on or under any land, the Harbour Authority requires the protection, diversion, relocation or removal of any apparatus placed in that land, the Harbour Authority shall give to the undertaker 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 granted under this Order, the undertaker reasonably needs to remove any of its apparatus) the Harbour Authority shall, subject to sub-paragraph (3), afford to the undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the Harbour Authority where the Harbour Authority so directs and thereafter for the use, maintenance, repair, renewal and inspection of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the Harbour Authority, or the Harbour Authority 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 undertaker shall, on receipt of a written notice to that effect from the Harbour Authority, use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (4) Sub-paragraph (3) does not require the undertaker to exercise any power to acquire compulsorily any land or right in the land unless the Harbour Authority has agreed to be liable for the costs of the exercise of the power, and if the Harbour Authority does so agree, it may act as the undertaker’s agent in the exercise of the power.

• (5) Any alternative apparatus to be constructed in land of the Harbour Authority under this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the undertaker and the Harbour Authority or in default of agreement settled by arbitration in accordance with article 66 (arbitration).

• (6) The undertaker shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 66 (arbitration), and after the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed with all reasonable dispatch to construct and bring into operation the alternative apparatus and thereafter to remove any apparatus required by the Harbour Authority to be removed under the provisions of this Schedule.

• (7) Notwithstanding anything in sub-paragraphs (2) and (6), if the Harbour Authority gives notice in writing to the undertaker that the Harbour Authority desires itself to execute any part of the work necessary in connection with the construction of alternative apparatus, or the removal of the apparatus required to be removed, or the protection of apparatus, that work, in lieu of being executed by the undertaker, shall be executed by the Harbour Authority with the prior written consent of the undertaker (which shall not be unreasonably withheld but which may be subject to any such conditions as are reasonable and proper) in accordance with plans and in a position agreed between the undertaker and the Harbour Authority or, in default of agreement, settled by arbitration in accordance with article 66 (arbitration), with all reasonable dispatch under the superintendence, if given, and to the reasonable satisfaction of the undertaker.

• (8) The Harbour Authority must agree the programme for diversion of the apparatus with the undertaker (who must act reasonably) to ensure that the undertaker can fulfil its operational requirements.

4

• (1) Where, in accordance with the provisions of this Schedule, the Harbour Authority affords to the undertaker facilities and rights for the construction, and maintenance, in land of the Harbour Authority of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the Harbour Authority and the undertaker or in default of agreement settled, subject to sub-paragraphs (2) and (3), by arbitration in accordance with article 66 (arbitration).

• (2) In settling those terms and conditions in respect of alternative apparatus to be constructed in any property of the Harbour Authority, the arbitrator shall—

• (a) give effect to all reasonable requirements of the Harbour Authority for ensuring the safe and efficient construction and operation of the authorised works 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 Harbour Authority;

• (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 the undertaker’s ability to fulfil its service obligations; and

• (c) enable all or part of such development as is authorised by this Order (and its subsidiary consents, approvals, permissions and authorities as the case may be) to go ahead without undue delay or unreasonable cost.

• (3) If the facilities and rights to be afforded by the Harbour Authority in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the undertaker than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator shall make such provision for the payment of compensation by the Harbour Authority to the undertaker as appears to him to be reasonable having regard to all the circumstances of the particular case.

5

• (1) Not less than 56 days before commencing the construction or maintenance of any specified work the Harbour Authority shall submit to the undertaker a plan, section and description of the works to be executed.

• (2) The Harbour Authority shall not commence the construction or maintenance of any specified work until the undertaker has given written approval of the plan, section and description so submitted.

• (3) Any approval of the undertaker required under sub-paragraph (2)—

• (a) may be given subject to reasonable conditions for the alteration or otherwise for the protection of the apparatus, or for securing access to the apparatus, and the undertaker shall be entitled by its officer to watch and inspect the execution of those works;

• (b) shall not be unreasonably withheld; and

• (c) shall be deemed to have been given if it is neither given nor refused within 28 days of the submission of plans for approval.

• (4) If the undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the Harbour Authority, reasonably requires the removal of any apparatus and gives written notice to the Harbour Authority of that requirement, the foregoing provisions of this Schedule shall apply as if the removal of the apparatus had been required by the Harbour Authority under paragraph 3.

• (5) Nothing in this paragraph shall preclude the Harbour Authority from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, a new plan, section and description in lieu of the plan, section and description previously submitted, following which the provisions of this paragraph shall apply to and in respect of the new plan, section and description.

• (6) The Harbour Authority shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker as much prior notice as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable afterwards and shall comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

6

• (1) Subject to the following provisions of this paragraph, the Harbour Authority shall repay to the undertaker the reasonable and evidenced expenses incurred by the undertaker in, or in connection with—

• (a) 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 specified works; and

• (b) the provision of any superintendence and consultations and approvals referred to in paragraph 5.

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

• (3) If in pursuance of the provisions 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 except where this has been solely due to using the nearest currently available type on the open market or where it is required by law; 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 Harbour Authority or, in default of agreement, is not determined by arbitration to be necessary, then, if such placing involves cost in the construction of works under this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the undertaker by virtue of sub-paragraph (1), shall be reduced by the amount of that excess.

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

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

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

• (5) An amount which apart from sub-paragraph (3) would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

7

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works as are referred to in paragraph 3(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the undertaker the Harbour Authority shall—

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

• (b) compensate the undertaker for all valid claims, demands, proceedings, costs, damages, losses and expenses which may be made or taken against or recovered from or incurred by the undertaker;

by reason or in consequence of any such damage or interruption.

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

• (3) The undertaker shall give the Harbour Authority reasonable notice of and full and detailed evidence of any such claim or demand and no settlement or compromise shall be made without the consent of the undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

SCHEDULE 12 — LAND WHICH MAY BE ACQUIRED COMPULSORILY