The A19/A1058 Coast Road (Junction Improvement) Development Consent Order 2016

• (3) If the amount of compensation cannot be agreed, then either the undertaker or the utility undertaker may refer the matter to arbitration, and the arbitrator must make such provision for the payment of compensation by the undertaker to the utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection

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• (1) Not less than 56 days before commencing the execution of any works that will or may affect any apparatus, the removal or diversion of which has not been required by the undertaker under paragraph 19(2) or otherwise, the undertaker must submit to the utility undertaker in question a plan showing the works and the apparatus.

• (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 (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus, the plan to be submitted to the utility undertaker under sub-paragraph (1) must be detailed including a material statement and describing—

• (a) the exact position of the works;

• (b) the level at which the works 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; and

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

• (3) The undertaker must not commence the construction or renewal of any works to which sub-paragraph (1) or (2) applies until the utility undertaker has given written approval of the plan submitted under sub-paragraph (1).

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

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

• (b) must not be unreasonably withheld or delayed; and

• (c) is deemed to be granted after the expiry of 70 days from receipt by the utility undertaker of the plan if no material response to the request for approval has been provided within the initial 56 day period, provided that the undertaker must have first taken all reasonable steps to contact the relevant representatives of the utility undertaker in order to elicit such a response. In any event no work is to proceed without the utility undertaker’s consent (not to be unreasonably withheld or delayed).

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

• (6) Works executed under the Order to which this paragraph applies must be executed only in accordance with the relevant plan, notified under sub-paragraph (1) or approved (with conditions, if applicable) under sub-paragraph (4), as amended from time to time by agreement between the undertaker and the utility undertaker. The utility undertaker is entitled to watch and inspect the execution of those works.

• (7) Where the utility undertaker requires any protective works (whether of a temporary or permanent nature) or subsidence monitoring to be carried out either by itself or by the undertaker, the utility undertaker must give the undertaker notice of such requirement in its approval under sub-paragraph (3), and—

• (a) such protective works must be carried out to the utility undertaker’s reasonable satisfaction prior to the carrying out of the relevant part of the works;

• (b) ground subsidence monitoring must be carried out in accordance with a scheme approved by the utility undertaker (such approval not to be unreasonably withheld or delayed), which must set out—

• (i) the apparatus which is to be subject to such monitoring;

• (ii) the extent of land to be monitored;

• (iii) the manner in which ground levels are to be monitored;

• (iv) the timescales of any monitoring activities; and

• (v) the extent of ground subsidence which, if exceeded, is to require the undertaker to submit for the utility undertaker’s approval a ground subsidence mitigation scheme in respect of such subsidence;

• (c) if a subsidence mitigation scheme is required, it must be carried out as approved (such approval not to be unreasonably withheld or delayed).

• (8) 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 relevant 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.

• (9) The undertaker is not required to comply with sub-paragraph (1) or (2) where it needs to carry out emergency works as defined in the 1991 Act, but in that case it must give to the utility undertaker notice as soon as is reasonably practicable and a plan of those works to comply with the other requirements in this paragraph in so far as is reasonably practicable in the circumstances, provided that the undertaker always complies with sub-paragraph (10).

• (10) At all times when carrying out any works authorised under this Order, the undertaker must comply with the utility undertaker’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of Northern Gas Networks, Gas pipelines and associated installation requirements for third parties NGN/SPSSW22” and Health and Safety Executive guidance document “HS(G)47 Avoiding Danger from underground services”.

Expenses

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• (1) Subject to the following provisions of this paragraph, the undertaker must repay to the utility undertaker on demand all charges, costs and expenses reasonably incurred by the utility undertaker in, or in connection with, the inspection, removal or diversion, relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus which may be reasonably required and necessary in consequence of the execution of the works, including without limitation—

• (a) any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus, including without limitation in the event that the utility undertaker elects to use compulsory acquisition powers to acquire any necessary rights under paragraph 19(7), all costs reasonably incurred as a result of such action;

• (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;

• (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 works referred to in this Part of this Schedule; and

• (g) any statutory loss of supply payments under the ‘Guaranteed Standards of Service’ regime that the utility undertaker may incur in consequence of the works, but in the event that such payments are likely to become payable, the utility undertaker must give the undertaker notice as soon as reasonably practicable of the payments and their likely amount.

• (2) The utility undertaker must use its reasonable endeavours to mitigate in whole or in part, and in any event to minimise, any expenses capable of being claimed under sub-paragraph (1). If requested to do so by the undertaker, the utility undertaker is to provide an explanation of how the claimed expenses have been minimised. The undertaker is only liable to pay expenses that have been reasonably incurred.

• (3) 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 and which is not re-used as part of the alternative apparatus, that value being calculated after removal, net of disposal costs.

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

• (a) apparatus of greater capacity or of greater dimensions is placed in substitution for existing apparatus; 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,

then, if this incurs greater expense than would have been incurred by a like-for-like (or as close as practicable to like-for-like) replacement at the same depth, the undertaker is not liable for this additional expense.

• (5) For the purposes of sub-paragraph (4) 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.

Indemnity

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• (1) Subject to sub-paragraphs (2), (3) and (4), if by reason or in consequence of the construction of any works carried out under this Part of this Schedule or in consequence of the construction, use, maintenance of the works by or on behalf of the undertaker or failure of any of the works 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, there is subsidence resulting from any of the works, or 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 the utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the utility undertaker, or the utility undertaker becomes liable to pay any amount to any third party, the undertaker must—

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

• (b) indemnify the utility undertaker for any other expenses, loss (other than consequential losses), demands, proceedings, damages, claims, penalties or costs (except to the extent that those liabilities are due to the sole, partial or complete act, neglect or default of the utility undertaker) incurred by or recovered from the utility undertaker.

• (2) The fact that any act or thing may have been done by the utility undertaker on behalf of the undertaker or in accordance with a plan approved by the utility undertaker or in accordance with any requirement of the utility undertaker or under its supervision does not (subject to sub-paragraph (4)), excuse the undertaker from liability under the provisions of sub-paragraph (1).

• (3) The utility undertaker must use its reasonable endeavours to mitigate in whole or in part, and in any event to minimise, any costs, expenses, losses, demands, penalties etc. capable of being claimed under sub-paragraph (1). If requested to do so by the undertaker, the utility undertaker must provide an explanation of how the claimed expenses have been minimised. The undertaker is only liable to pay expenses that have been reasonably incurred.

• (4) 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 neglect or default of the utility undertaker, its officers, servants, contractors or agents.

• (5) The utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without first consulting the undertaker and considering its promptly made representations to the extent practicable.

Enactments and agreements

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Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and the utility undertaker in respect of any apparatus laid or erected in land belonging to the undertaker.

Co-operation

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Where in consequence of the proposed construction of any of the authorised development the undertaker or the utility undertaker requires the removal of apparatus in accordance with the provisions of this Part of this Schedule, the undertaker must use its best endeavours to co-ordinate the execution of the works to or for the benefit of the apparatus in the interests of safety and the efficient and economic execution of such works, taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking, and the utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

Access

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If in consequence of an agreement reached in accordance with paragraph 18 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 the utility undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

27

Any difference or dispute arising between the undertaker and the utility undertaker under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and that utility undertaker, be determined by arbitration in accordance with article 40 (arbitration).

Works falling outside of development authorised by the Order

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Nothing in this schedule requires the undertaker to carry out works, or requires the undertaker to enable the utility undertaker to carry out works, that are not authorised by this Order. The utility undertaker must not request any alteration, diversion, protective work or any other work which is not authorised to be carried out under this Order (but for the avoidance of doubt, it may elect to carry out such works itself under any other planning permission available to it).

PART 3 — FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

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

30

In this Part of this Schedule—

• “the 2003 Act” means the Communications Act 2003⁶⁰;

• ...

• “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 Act⁶¹;

• “electronic communications code network” means–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 of the 2003 Act; andan 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 of that code; and

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

31

The exercise of the powers conferred by article 29 (statutory undertakers) is subject to Part 10 of Schedule 3A to the Communications Act 2003 (undertaker’s works).

32

• (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 the authorised development—

• (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 the authorised development, 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 which, if it withholds 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 40 (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.

Signed

Signed by authority of the Secretary of State for Transport

Martin Woods — Head of the Transport and Works Act Orders Unit — Department for Transport — 28th January 2016

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order authorises Highways England to improve the A19 junction with the A1058 in North Tyneside and carry out all associated works in order to reduce congestion and improve road safety.

The Order permits Highways England to acquire, compulsorily or by agreement, land and rights in land and to use land for this purpose.

The Order also makes provision in connection with the maintenance of the authorised development.

A copy of the plans, engineering drawings and sections and the book of reference mentioned in this Order and certified in accordance with article 38 of this Order (certification of plans, etc.) may be inspected free of charge during working hours at Lateral, 8 City Walk, Leeds, West Yorkshire, LS11 9AT.

Footnotes

Editorial notes