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The York Potash Harbour Facilities Order 2016

Type Statutory-Instrument

Publication 2016-07-20

Last updated 2024-03-11

State In force

Department King's Printer of Acts of Parliament

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(3) Prior to the decommissioning phase of the authorised development, terrestrial ecological surveys are to be undertaken to verify whether any protected species could be impacted by the decommissioning phase, and to identify any requirement for mitigation to be implemented in order to avoid any adverse impacts. The scope of terrestrial ecological surveys is to be agreed with the local planning authority in consultation with Natural England prior to any ecological surveys being undertaken and, following the surveys, the scope of mitigation including an implementation timetable is to be agreed by the local planning authority in consultation with Natural England. The agreed mitigation must be carried out as agreed.

Archaeology

10

(1) No development is to take place until a programme of archaeological work including a written scheme of investigation has been submitted to and approved by the local planning authority. The scheme must provide for monitoring in the vicinity of the “Deserted Medieval Village of West Coatham”. The scheme must include an assessment of significance and research questions and—

(a) the programme and methodology of site investigation and recording;

(b) the programme for post investigation assessment;

(d) provision to be made for publication and dissemination of the analysis and records of the site investigation;

(e) provision to be made for archive deposition of the analysis and records of the site investigation; and

(f) nomination of a competent person or organisation to undertake the works set out within the written scheme of investigation.

(2) No development is to take place other than in accordance with the written scheme of investigation approved under sub-paragraph (1).

(3) The authorised development must not be occupied until the site investigation and post- investigation assessment has been completed in accordance with the programme set out in the written scheme of investigation approved under sub-paragraph (1) and the provision made for analysis, publication and dissemination of results and archive deposition has been secured.

Decommissioning

11

Prior to the decommissioning phase of the authorised development through the removal of the overhead conveyor system, the undertaker must submit a decommissioning plan in respect of those parts of the authorised development to be decommissioned to the local planning authority for approval. The provisions of the approved plan must be implemented during the decommissioning phase.

SCHEDULE 3 — ACQUISITION PROVISIONS

PART 1 — RIGHTS AND RESTRICTIONS REQUIRED FOR THE CONVEYOR ROUTE – COMPULSORY ACQUISITION (NORTHERN)

(1)Number of land shown on land plans	(2)Class or classes of rights sought as described in the book of reference	(3)Purpose for which rights may be acquired or restrictions imposed
7	1 and 9	Dredging and to obtain access for such purposes.
8	1, 2, 3, 4, 5, 6, 7a, 9 and 10	(a) Dredging;(b) construction, operation, use and maintenance of the quay;(c) extension and/or modification the pipe between the lagoon and the Tees estuary and provision of an additional pipe for flow control;(d) installation, maintenance and use of ship loaders, surge bins, transfer towers;(f) construction, operation, use and maintenance of the conveyor system along the conveyor route (northern);(g) installation and maintenance of support foundations for the conveyor along the conveyor route (northern);(h) carrying out and maintenance of the lagoon habitat enhancement works;(i) installation, operation, use and maintenance of services, signage, lighting, acoustic fencing, security fencing and gating, CCTV;(j) creation and use of temporary compounds (Works Nos. 6A and 7); and(k) construction, use and maintenance of a permanent compound (Works No. 6B),and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.
8b (as shown on Document 2.1B(i) (Northern Route))	4, 5, 6, 9 and 10	(a) Construction, operation, use and maintenance of the conveyor system along the conveyor route (northern);(b) installation and maintenance of support foundations for the conveyor along the conveyor route (northern);(c) installation, use and maintenance of services, signage, lighting and CCTV; and(d) creation and use of temporary compound (Work No. 8),and to obtain access for such purposes to impose requirements for the protection of the conveyor structure and footings.
8a and 9	4, 5, 9 and 10	(a) Construction, operation, use and maintenance of the conveyor system, installation along the conveyor route (northern);(b) maintenance of support foundations for the conveyor along the conveyor route (northern); andinstallation, use and maintenance of services, signage, lighting, acoustic fencing, CCTV,and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.
8c (as shown on Document 2.1B(i) (Northern Route))	4, 5, 9 and 10	(a) Construction, operation, use and maintenance of the conveyor system along the conveyor route (northern);(b) installation and maintenance of support foundations for the conveyor and a transfer tower along the conveyor route (northern); and(c) installation, use and maintenance of services, signage, lighting, CCTV,and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.
11	1, 2, 3, 4, 5, 6, 7b, 9 and 10	(a) Dredging;(b) construction, operation, use and maintenance of the quay;(c) demolition of the existing jetty;(d) installation, maintenance and use of ship loaders, surge bins, transfer towers;(e) construction, operation, use and maintenance of the conveyor system along such part of the conveyor route (northern);(f) installation and maintenance of support foundations for the conveyor along such part of the conveyor route (northern);(g) installation of a below ground waste storage tank;(h) carrying out and maintenance of part of the lagoon habitat enhancement works;(i) installation, use and maintenance of services, signage, lighting, acoustic fencing, security fencing and gating, CCTV;(j) creation and use of temporary compounds (Works No. 7); and(k) construction, use and maintenance of a permanent compound (Works No. 9),and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.
12 and 13	1, 4, 5 and 9	(a) Dredging;(b) demolition of the existing jetty; and(c) installation, use and maintenance of services, lighting, acoustic fencing, security fencing and gating, CCTV,and to obtain access for such purposes.
15 and 16	5 and 9	Installation, use and maintenance of services, signage, lighting, acoustic fencing, security fencing and gating, CCTV and to obtain access for such purposes.
17, 18, 19, 20, 21a and 22	4, 5 and 9	Installation, use and maintenance of services, lighting, acoustic fencing, security fencing and gating, CCTV and to obtain access for such purposes.
23, 24, 37a, 38, 39, 40, 41, 42, 43, 44, 49, 57, 58, 59, 60 and 62	4, 5, 9 and 10	(a) Construction, operation, use and maintenance of the conveyor system along the conveyor route (northern);(b) installation and maintenance of support foundations for the conveyor along the conveyor route (northern); and(c) installation, use and maintenance of services, lighting, security fencing and gating, CCTV,and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.
25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 54	4, 5 and 9	(a) Construction, operation, use and maintenance of the conveyor system along the conveyor route (northern);(b) installation and maintenance of support foundations for the conveyor along the conveyor route (northern); and(c) installation, use and maintenance of services, CCTV,and to obtain access for such purposes.
47, 48, 55 56 and 61	5 and 9	(a) Installation and maintenance of support foundations for the conveyor along the conveyor route (northern); and(b) installation, use and maintenance of services, CCTV,and to obtain access for such purposes.
50	4, 5, 6, 9 and 10	(a) Construction, operation, use and maintenance of the conveyor system along the conveyor route (northern);(b) installation and maintenance of support foundations for the conveyor along the conveyor route (northern);(c) installation, use and maintenance of services, lighting, security fencing and gating, CCTV; and(d) creation and use of a temporary compound (Works No. 10),and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.
51	4, 5, 8, 9 and 10	(a) Construction, operation, use and maintenance of the conveyor system along such part of the conveyor route (northern);(b) installation and maintenance of support foundations for the conveyor along such part of the conveyor route (northern);(c) installation, use and maintenance of services, lighting, security fencing and gating, CCTV (Works No. 12);(d) laying out of the highway works;(e) installation of new signs and markings;(f) removing an existing earth bund; and(g) clearing vegetation,and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.
52, 53, 54a	8	(a) Laying out of the highway works (Works No. 12) to include a pedestrian traffic island;(b) resurfacing the existing carriageway;(c) installation of new signs and markings;(d) removing an existing earth bund; and(e) clearing vegetation,including temporary access for such purposes.
59a	6	Creation and use of a temporary compound (Works No. 11) including temporary access for such purposes.

PART 2 — RIGHTS AND RESTRICTIONS REQUIRED FOR THE CONVEYOR ROUTE – CROWN LAND (NORTHERN)

(1)Number of land shown on land plans	(2)Class or classes of rights sought as described in the book of reference	(3)Purpose for which rights may be acquired or restrictions imposed
1	1, 2, 4 and 9	(a) Dredging;(b) demolition of the existing jetty;(c) construction, operation, use and maintenance of the quay;(d) installation, maintenance and use of ship loaders; and(e) construction, operation, use and maintenance of the conveyor system,and to obtain access for such purposes.
2, 3	1 and 9	(a) Dredging; and(b) demolition of the existing jetty,and to obtain access for such purposes.
6	1 and 9	Dredging and to obtain access for such purposes.
10	4, 5, 9 and 10	(a) Construction, operation, use and maintenance of the conveyor system along the conveyor route (northern);(b) installation and maintenance of support foundations for the conveyor and a transfer tower along the conveyor route (northern); and(c) installation, use and maintenance of services, signage, lighting, CCTV,and to obtain access for such purposes and to impose restrictions for the protection of the conveyor structure and footings.

PART 3 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR THE CREATION OF NEW RIGHTS AND RESTRICTIVE COVENANTS

Compensation enactments

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 as respects compensation on the compulsory purchase of land and interests in land.

2

(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973[^f00030] has effect subject to the modifications set out in sub-paragraph (2) and (3).

(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 4—

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

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

(3) For section 58(1)[^f00031] (determination of material detriment where part of house etc., proposed for compulsory acquisition), as it applies to determinations under section 8 (other provisions as to divided land) of the 1965 Act, substitute—

(1) In determining under section 8(1) or 34(2) of the Compulsory Purchase Act 1965, or section 166 (2) of the Town and Country Planning Act 1990, whether— (a) a right over or restrictive covenant affecting land consisting of a house, building or manufactory can be taken or imposed without material detriment or damage to the house, building or manufactory; or (b) a right over or restrictive covenant affecting land consisting of a park or garden belonging to a house can be taken or imposed without seriously affecting the amenity or convenience of the house, the Upper Tribunal must take into account not only the effect of the acquisition of the right or the imposition of the restrictive covenant but also the use to be made of the right or restrictive covenant proposed to be acquire or imposed, and, in a case where the right or restrictive 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 to be made of the other land.

Application of the 1965 Act

3

(1) The 1965 Act has effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right, or to the imposition under this Order of a restrictive covenant, as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are read (accordingly to the requirements of the particular context) as referring to, or as including references to—

(a) the right acquired or to be acquired;

(b) the land over which the right is or is to be exercisable;

(d) the land over which the restrictive covenant is or is to be enforceable.

(2) Without limitation on the scope of sub-paragraph (1), Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act applies in relation to the compulsory acquisition under this Order of a right by the creation of a new right, or in relation to the imposition of a restrictive covenant, with the modifications specified in the following provisions of this Schedule.

4

For Section 7 of the 1965 Act (measure of compensation) 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 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.

5

For section 8 of the 1965 Act (provisions as to divided land) substitute—

(6) the York Potash Harbour Facilities Order 2016[^f00032] (“the Order”), in relation to that person, ceases to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice is to be deemed to have been served in respect of that interest on such date as the tribunal directs. (1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)— (a) a question of disputed compensation in respect of the purchase of the right or the imposition of the restrictive covenant would apart from this section fall to be determined by the Upper Tribunal (“the tribunal”); and (b) before the tribunal has determined that question the tribunal is satisfied that the person has an interest in the whole of the relevant land and is able and willing to sell that land and— (i) where that land consists of a house, building or manufactory, that the right cannot be purchased or the restrictive covenant imposed without material detriment to that land; or (ii) where that land consist of such a park or garden, that the right cannot be purchased or the restrictive covenant imposed without seriously affecting the amenity or convenience of the house to which that land belongs, (2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section is to be determined by the tribunal. (3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of 6 weeks beginning with the date of the determination, in accordance with section 31 of the 1961 Act withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of the authority to withdraw the notice.

6

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);

(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.

7

Section 11[^f00033] (powers of entry) of the 1965 Act is modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right 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 (which is deemed for this purpose to have been created on the date of service of the notice); and sections 12[^f00034] (penalty for unauthorised entry) and 13[^f00035] (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

8

Section 20[^f00036] (protection for interests of 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.

9

Section 22 (interests omitted from purchase) of the 1965 Act is 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 to enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

SCHEDULE 4 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Area	(2) Plot number shown on land plans	(3) Purpose for which temporary possession may be taken	(4) Relevant part of the authorised development
Borough of Redcar & Cleveland	52, 53, 54a	Highway works	Works No. 12
Borough of Redcar & Cleveland	59a	Temporary contractor’s compound	Works No. 11

SCHEDULE 5 — DEEMED LICENCE UNDER THE 2009 ACT

PART 1 — INTRODUCTORY

Addresses and Undertaker

1

(1) Unless otherwise advised in writing by the MMO, the address for postal correspondence with the MMO for the purposes of this Schedule is the Marine Management Organisation, Marine Licensing Team, Lancaster House, Newcastle Business Park, Newcastle upon Tyne, NE4 7YH and where contact with the MMO District Office is required, the following contact details should be used—

Neville House, Central Riverside, Bell Street, North Shields, NE30 1LJ;

Telephone number: 0191 257 4520;

Email address: northshields@marinemanagement.org.uk.

(2) Unless otherwise advised in writing by the MMO, the address for electronic communication with the MMO for the purposes of this Schedule is—

marine.consents@marinemanagement.org.uk; ornorthshields@marinemanagement.org.uk.

(3) Where in this Schedule reference is made to the undertaker it includes any agent or contractor or person acting on the undertaker’s behalf.

PART 2 — LICENSED ACTIVITIES

2

For the purpose of constructing and maintaining the authorised development the licence holder may carry out the activities set out in this Part as if those activities were licensed under the 2009 Act.

Construction of the quay

3

The undertaker is permitted to construct the quay (Work No. 2) within the quay limits (as described in Schedule 6 (quay limits)) according to the following specification—

(a) the quay length must be no more than 486 metres;

(b) the quay width must be no more than 87 metres; and

Open quay structure

4

The undertaker is permitted to construct the open quay structure according to the following specification—

(a) suspended deck structures comprised of a reinforced concrete deck supported by approximately 200 driven steel tubular piles in phase 1a, with an additional 200 piles required for phase 2, in the order of 0.9 metres diameter;

(b) the area of the deck structure (quay) is to be no more than 28 metres wide by 280 metres long in phase 1a, increasing up to a total of 486 metres long in phase 2;

(c) the quayside is to consist of engineering fill to create a trafficable surface adjacent to the quay, for the full length of the quay. The width of the quayside is to be between 43 metres and 53 metres;

(d) 2 access bridges are to be constructed during phase 1a, allowing one to be used for the construction of phase 2 whilst maintaining the other for operational access;

(e) installation of a revetment on the re-graded slope, either to be placed on the re-graded slope prior to installation of piles, or placed following installation of the piles; and

(f) replacement of the existing pipe through the embankment between the Tees estuary and the lagoon with 2 new pipes of larger capacity each incorporating independently operated flow control structures.

Solid quay structure

5

The undertaker is permitted to construct the solid quay structure according to the following specification—

(a) phase 1a—

(i) the combi-pile wall is to consist of 120 king piles (of approximately 2 metres diameter) with intermediate sheet piles;

(ii) the anchor wall is to consist of a length of approximately 210 metres of sheet piles; and

(iii) 40 piles of 660 millimetre diameter are required for the cope beam to support the landside ship loader rails, installed between the tie rods that connect the king piles to the anchor wall;

(b) phase 2—

(i) the combi-pile wall is to consist of an additional 90 king piles with intermediate sheet piles;

(ii) the anchor wall is to consist of an additional plan length of approximately 200 metres of sheet piles; and

(iii) a further 35 piles of 660 millimetre diameter are required for the cope beam to support the landside ship loader rails;

(c) the quayside is to consist of engineering fill to create a trafficable surface adjacent to the quay, for the full length of the quay – the width of the quayside is to be between 65 metres and 87 metres;

(d) the footprint is to be no more than 87 metres wide by 280 metres long in phase 1a, increasing up to a total of 486 metres long in phase 2 – access to the quay is to be directly from the reclaimed area behind the quay wall; and

(e) replacement of the existing pipe through the embankment between the Tees estuary and the lagoon with 2 new pipes of larger capacity each incorporating independently operated flow control structures.

Capital dredging and disposal

6

(1) The undertaker is permitted to carry out capital dredging at the following locations—

(a) the current approach channel to a depth of 14.1 metres below Chart Datum (16.95 metres below Ordnance Datum); and

(b) the berth pocket to a depth of 16 metres below Chart Datum (18.85 metres below Ordnance Datum).

(2) The materials must be dredged in the approximate quantities according to the following table—

Dredged material type	Open quay (cubic metres)	Solid quay (cubic metres)
Silts	181,000	66,000
Sands and Gravels	326,000	196,000
Clays	230,000	194,000
Mercia Mudstone	385,000	358,000
TOTAL (MAXIMUM)	1,122,000	814,000

(3) For phases 1a and 2, the dredging of the contaminated silts is to be undertaken using enclosed grabs.

(4) For phase 1a the dredging of the sands and gravels is to be undertaken using a Trailing Suction Hopper Dredger (“TSHD”).

(5) For phases 1a and 2 the dredging of the clay and Mercia mudstone (marl) must be undertaken using a backhoe dredger, TSHD or Cutter Suction Dredger (“CSD”). For phase 2, dredging of sands and gravel is to be by a backhoe dredger, TSHD or CSD.

(6) The following maximum quantities of dredged material are to be disposed at Tees Bay C (TY 150) offshore dredged material disposal sites—

(a) 615,000 cubic metres of clay and mudstone; and

(b) 326,000 cubic metres of sand and gravel,

unless otherwise agreed with the MMO.

Lagoon habitat enhancement

7

(1) The lagoon habitat enhancement works must not commence until a written lagoon habitat enhancement plan (to include details of pre and post construction monitoring) has been submitted to and approved by the MMO (following consultation with Natural England, the Environment Agency and the local planning authority).

(2) The lagoon habitat enhancement plan must include—

(a) details of proposals for pre and post construction monitoring;

(b) details of the enhancement of habitat in the lagoon for water birds and a construction method statement regulating the construction of those works; and

(3) The lagoon habitat enhancement plan (including pre and post construction monitoring information) must accord with the mitigation and monitoring strategy.

(4) The lagoon habitat enhancement plan must be implemented as approved.

PART 3 — ENFORCEMENT

8

Any breach of this Schedule does not constitute a breach of this Order but is subject to the enforcement regime in Chapter 3 (enforcement) of Part 4 (licensing) of the 2009 Act as if this Schedule were a licence granted under that Act.

PART 4 — CONDITIONS

General conditions

9

(1) The conditions set out at paragraphs 10 to 51 are licence conditions attached to the DML granted by article 31 (deemed marine licence).

(2) For such of the licensed activities that involve the construction, alteration or improvement of works in or over the sea or on or under the sea bed, the conditions apply to any person who for the time being owns, occupies or enjoys any use of the licensed activity.

(3) This licence is for 20 years from the date of coming into force of this Order whereby—

(a) the minimum construction period for phase 1a and phase 2 works is 17 months each for both forms of quay structure; and

(b) phase 2 works are to commence within 6 years of completion of phase 1a.

10

The MMO must be notified by the undertaker at least 10 working days before the commencement of each phase of the licensed activity of its acceptance of the provisions of this Schedule and that the undertaker and any agents or contractors employed by it to carry out the licensed activities have knowledge of the provisions of this Schedule.

11

The undertaker must ensure that the MMO District Marine Office is notified of the timetable of works and operations at least 10 working days prior to the commencement of each phase of the licensed activity.

12

The MMO must be notified by the undertaker in writing of any agents, contractors or sub-contractors that will be carrying out any licensed activity on behalf of the undertaker at least 4 weeks before the commencement of each phase of the licensed activity.

13

The undertaker must ensure that a copy of this Schedule and any subsequent revisions or amendments has been provided to, read and understood by any agents, contractors or subcontractors that will be carrying out any licensed activity on behalf of the undertaker.

14

The undertaker must ensure that the names of vessels to be utilised in connection with a licensed activity are provided to the MMO and agreed at least 4 weeks prior to the commencement of the licensed activities such notification setting out—

(a) the vessel type;

(b) the vessel International Maritime Organization number; and

15

The undertaker must ensure that a copy of this Schedule and any subsequent revisions or amendments has been provided to, read and understood by the master of any vessel being used to undertake any licensed activity, and that a copy of this Schedule is held on board any such vessel.

16

The undertaker must ensure that a Notice to Mariners is issued at least 10 working days prior to the licensed activity commencing warning of the start date for the construction of the licensed activity and updated as appropriate.

Project wide conditions

17

(1) Prior to any works commencing below the level of high water, the undertaker must submit detailed method statements to the MMO for approval for each operation of the licensed activities at least 3 months prior to the commencement of such licensed activity and any such approval must not be unreasonably withheld or delayed and is deemed to have been permitted if it is neither given nor refused within 3 months of the specified day.

(2) The undertaker must provide the MMO with such further details as the MMO may reasonably require, any such request to be made within 28 days from the day on which the detailed method statement was submitted under sub-paragraph (1).

(3) In this paragraph the “specified day” means—

(a) the day on which the MMO have received the detailed method statement referred to in sub-paragraph (1); or

(b) the day on which the undertaker provides the MMO with such further particulars as have been reasonably requested by the MMO under sub-paragraph (2).

18

(1) The undertaker must only work and access the licensed area within a defined and marked out area so as to limit personnel and plant access to the area of Works Nos. 2 and 3.

(2) Co-ordinates (in WGS84) and plan diagrams of the licensed area and access routes must be submitted to the MMO at least 4 weeks prior to the commencement of the licensed activity.

(3) Licensed activity must not commence before the approval of the co-ordinates and plan diagrams of the licensed area and access routes has been given by the MMO.

19

All construction phase activities must be carried out in accordance with the following—

(a) best practice guidance including the Environment Agency’s Pollution Prevention Guidance notes and guidance from the Construction Industry Research and Information Association;

(b) adherence to the Construction (Design and Management) Regulations 2015 where applicable; and

(c) adherence to the Construction Environmental Management Plan approved under paragraph 6(1) of Schedule 2 (requirements) and an Incident and Emergency Response Plan.

20

The undertaker must ensure that any coatings and treatments used are approved by the Health and Safety Executive as suitable for use in the marine environment.

21

The undertaker must ensure that all materials used in construction of any part of the licensed activities are suitable and approved by the MMO for use within the marine environment.

22

The undertaker must ensure that during the licensed activity all wastes are stored in designated areas that are isolated from surface water drains, open water and bunded if necessary to contain any spillage.

23

The undertaker must ensure that no waste concrete slurry or wash water from concrete or cement licensed activities are discharged into the marine environment.

24

Concrete and cement mixing and washing areas must be contained and sited at least 10 metres from any watercourse or surface water drain to minimise the risk of run off entering a watercourse.

25

The undertaker must install bunding and storage facilities to contain and prevent the release into the marine environment of fuel, oils and chemicals associated with plant, refuelling and construction equipment, ensuring that secondary containment is used with a capacity of not less than 110% of any container’s storage capacity.

26

The undertaker must ensure that any oil, fuel or chemical spill within the marine environment is reported to the MMO Marine Pollution Response Team, telephone number 0300 200 2024 (office hours) or 07770 977 825 (outside office hours); and if no response is received, Defra Duty Room, telephone number 0345 0818 486; MMO, emergency fax (not manned 24 hours) 0191 376 2682 or email address dispersants@marinemanagement.org.uk; or such replacement numbers or email addresses notified to the licence holder by the MMO in writing.

27

The undertaker must ensure that the maintenance of plant, including regular inspections, is carried out routinely and in accordance with the manufacturers’ guidance.

28

A spill kit (including booms for potential leaks directly into the marine environment) must be kept on site at all times during the construction phase and any major spills or leakages controlled and reported to the Environment Agency and the harbour master.

29

The undertaker must ensure that any equipment, temporary structures, waste and debris associated with the works are removed within 6 weeks of completing construction of the licensed activities.

Piling conditions

30

The undertaker must ensure adherence to JNCC’s guidelines ‘Statutory nature conservation agency protocol for minimising the risk of injury to marine mammals from piling noise’ (JNCC, 2010) during pile driving. This is to include checking for marine mammals during a pre-piling search prior to piling operations commencing, the establishment of a mitigation zone (that is, an area within which a marine mammal could be exposed to sound levels which could cause damage) and the use of “soft-start” techniques to allow any marine mammals time to leave the area of greatest disturbance.

31

The undertaker must ensure the implementation of a minimum of 8 hours continuous break in every 24 hour period where no impact piling is carried out and must ensure that no more than one vessel is carrying out a piling operation at any one time.

32

The undertaker must ensure that acoustic barriers are positioned—

(a) along the embankment between the lagoon and the construction works for the quay; and

(b) between the lagoon and the construction works for the conveyor constructed in the northern corridor.

33

The undertaker must ensure that no piling is undertaken for 3 hours following low water, nor during May and that any percussive piling is implemented using a “soft-start” procedure.

Capital dredging, disposal conditions and debris

34

(1) The undertaker must agree a capital dredge and disposal strategy with the MMO at least 4 weeks before the commencement of any licensed activities.

(2) If any disposal or dredging activities are to take place after 1st October 2017—

(a) the undertaker must submit a sediment sampling plan to the MMO for approval at least 6 months prior to that dredging or disposal activity being carried out;

(b) the sediment sampling and analysis of the sediment must be completed by a laboratory validated by the MMO at least 6 weeks prior to the dredging or disposal activity being carried out; and

35

The undertaker must ensure that as a result of the capital dredging activities referred to in paragraph 6 no more than 941,000 cubic metres is disposed to site Tees Bay C (TY 150).

36

(1) The undertaker must ensure that certified returns of quantities of dredged material deposited under this licence are submitted to the MMO by 15th February (for the months August to January inclusive) and 15th August (for the months February to July inclusive) each year.

(2) The returns must specify the full licence number and amounts deposited (in tonnes) each calendar month at each authorised deposit area.

(3) Where no deposit is made in a given period a NIL return is required.

(4) The disposal method used must be submitted with the returns.

(5) Any contaminated sediment (largely silt) lying deeper than 1 metre below the surface of the seabed (excluding the underlying geological material) must not be disposed of at sea.

(6) The removal of any contaminated silt to a site licensed for the treatment and disposal of such silt must only be by means of a barge unless otherwise agreed by the MMO in consultation with the local planning authority.

37

The undertaker must ensure that any man-made material is separated from the dredged material and disposed of at a registered onshore disposal site.

38

If disposal of material is found to be the cause of any detrimental effects to the disposal site, the undertaker must ensure that such disposal ceases with immediate effect.

39

If due to stress of weather or any other cause the master of a vessel determines that it is necessary to deposit the dredged material other than in accordance with the capital dredge and disposal strategy agreed under condition 34 because the safety of human life or of the vessel is threatened—

(a) full details of the circumstances of the deposit must be notified to the MMO within 48 hours; and

(b) at the reasonable request of the MMO the unauthorised deposits must be removed at the undertaker’s expense.

40

At least 10 working days before commencement of the licensed activities, the undertaker must submit to the MMO an audit sheet covering all aspects of the construction of the licensed activities or any phase of them. The audit sheet must include details of—

(a) loading facilities;

(b) vessels;

(d) shipment routes;

(e) transport;

(f) working schedules; and

(g) all components and materials to be used in the construction of the licensed activities.

41

The audit sheet must be maintained throughout the construction of the licensed activities (or relevant phase) and must be submitted to the MMO for review at fortnightly intervals during periods of active offshore construction.

42

In the event that the MMO becomes aware that any of the materials on the audit sheet cannot be accounted for, it must require the undertaker to carry out a side-scan sonar survey to plot all obstructions across a reasonable area of search agreed by the MMO where construction works and related activities have been carried out. Any obstructions that the MMO considers to be associated with the authorised development must be removed at the undertaker’s expense.

43

As an alternative to the completion of an audit sheet, with approval from the MMO, the undertaker may introduce a dropped object procedure. If a dropped object procedure is introduced, any dropped objects must be reported to the MMO using the dropped object procedure form within 6 hours of the undertaker becoming aware of an incident. On receipt of the dropped object procedure form, the MMO may require relevant surveys to be carried out by the undertaker (such as side-scan sonar), and the MMO may require obstructions to be removed from the seabed at the undertaker’s expense.

44

The undertaker must agree with the MMO, before commencement of works, whether the dropped object procedure or audit sheet is to be used.

45

The undertaker must, at least 4 months before the completion of the construction of each phase of the authorised development, submit for the approval of the MMO a post construction maintenance schedule setting out details of the maintenance regime for that part of the authorised development below the level of high water.

46

An update to the post construction maintenance schedule must be submitted for approval every 3 years unless the MMO waives such requirement.

47

Maintenance must be carried out in accordance with the approved post construction maintenance schedule.

Lagoon Habitat Enhancement Works

48

The undertaker must implement and comply with the lagoon habitat enhancement plan (including pre and post construction monitoring) approved under paragraph 7 and must monitor and maintain the lagoon habitat enhancement works in accordance with the lagoon habitat enhancement plan and the principles outlined in the mitigation and monitoring strategy and agreed with the MMO in consultation with Natural England, the Environment Agency and the local planning authority.

Progress of licensed activities

49

The undertaker must keep the MMO informed of progress of the licensed activities including—

(a) notice of commencement of construction of the licensed activities within 24 hours of commencement having occurred;

(b) notice within 24 hours of any aids to navigation being established by the undertaker; and

Decommissioning

50

No decommissioning of that part of the authorised development below the level of high water is to take place until a decommissioning plan has been submitted to the MMO not less than 3 months prior to the decommissioning and approved by the MMO, and until the MMO has advised the undertaker whether or not the works comprised in the decommissioning plan require a marine licence under the provisions of the 2009 Act; and for the avoidance of doubt this DML does not obviate the need for such licence to be obtained if it is required for the decommissioning works being undertaken.

Archaeology

51

(1) No development is to commence until a programme of archaeological work including a written scheme of investigation has been submitted to and approved by the MMO. The programme must be submitted for approval at least 6 weeks prior to the commencement of works. The scheme must include a level 1 Building Recording of the “Seventh Buoy Light/Dolphin Mooring Bollard” prior to demolition; and monitoring of dredging works in the harbour area in the vicinity of borehole BHP6 to identify and analyse peat deposits. The scheme must include an assessment of significance and research questions, and—

(a) the programme and methodology of site investigation and recording;

(b) the programme for post investigation assessment;

(d) provision to be made for publication and dissemination of the analysis and records of the site investigation;

(e) provision to be made for archive deposition of the analysis and records of the site investigation; and

(f) nomination of a competent person or organisation to undertake the works set out within the written scheme of investigation.

(2) No development is to take place other than in accordance with the written scheme of investigation approved under sub-paragraph (1).

(3) The authorised development must not be occupied until the site investigation and post investigation assessment has been completed in accordance with the programme set out in the written scheme of investigation approved under sub-paragraph (1) and the provision made for analysis, publication and dissemination of results and archive deposition has been secured.

SCHEDULE 6 — QUAY LIMITS

British National Grid	British National Grid	British National Grid	WGS84 DDM	WGS84 DDM
Name	easting	northing	Longitude	Latitude
H1	454860.2626	525337.9453	-1 09.11543	54 37.21298
H2	454888.5753	524853.5247	-1 09.09457	54 36.95162
H3	454940.7694	524856.5634	-1 09.04605	54 36.95292
H4	454942.22	524922.23	-1 09.04395	54 36.98832
H5	454949.27	524933.64	-1 09.03728	54 36.99442
H6	454954.44	524988.22	-1 09.03187	54 37.02382
H7	454950.46	525246.97	-1 09.03265	54 37.16335
H8	454938.4032	525342.4282	-1 09.04278	54 37.21488

SCHEDULE 7 — FOR THE PROTECTION OF NETWORK RAIL

1

The following provisions of this Schedule have effect, unless otherwise agreed between the undertaker and Network Rail and, in the case of paragraph 15, any other person on whom rights or obligations are conferred by that paragraph.

2

In this Schedule—

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;

“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of his powers under section 8 (licences) of the Railways Act l993[^f00037];

“Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at 1 Eversholt Street, London, NW1 2DN) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 (meaning of “subsidiary” etc.) of the Companies Act 2006[^f00038]) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

“railway property” means any railway belonging to Network Rail Infrastructure Limited and— any station, land, works, apparatus and equipment belonging to Network Rail Infrastructure Limited or connected with any such railway; and any easement or other property interest held or used by Network Rail Infrastructure Limited for the purposes of such railway or works, apparatus or equipment; and

“specified work” means so much of any of the authorised development as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.

3

(1) Where under this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

(a) co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

(b) use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised works under the powers conferred by this Order.

4

(1) The undertaker must not exercise the powers conferred by articles 15 (protective work to buildings), 16 (authority to survey and investigate the land), 20 (provision against danger to navigation), 21 (permanent lights on tidal works), 22 (power to charge), 30, (temporary use of land) or the powers conferred by section 11(3) (powers of entry) of the 1965 Act in respect of any railway property if such powers prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.

(2) The undertaker must not exercise the powers conferred by sections 271 (extinguishment of rights of statutory undertakers: preliminary notices) or 272 (extinguishment of rights of telecommunications code system operators: preliminary notices) of the 1990 Act, in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

(3) The undertaker must not under the powers of this Order acquire or use or acquire new rights over any railway property except with the consent of Network Rail.

(4) Where Network Rail is asked to give its consent under this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions.

5

(1) The undertaker must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated disapproval of those plans and the grounds of disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer is to be deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker for an agreed cost.

(4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation, de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works are to be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.

6

(1) Any specified work and any protective works to be constructed by virtue of paragraph 5(4) must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;

(b) under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

(d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic on it and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, regardless of any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(3) Nothing in this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

7

The undertaker must—

(a) at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and

(b) supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.

8

Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.

9

(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail must assume construction of that part of the specified work and the undertaker must, regardless of any such approval of a specified work under paragraph 5(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a), provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be set off against any sum payable by the undertaker to Network Rail under this paragraph.

10

The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 5(3) or in constructing any protective works under the provisions of paragraph 5(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by him of the construction of a specified work;

(c) in respect of the employment or procurement of the services of any inspectors, signallers, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

(d) in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution of diversion of services which may be reasonably necessary for the same reason; and

(e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

11

(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised works) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the authorised works giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised works take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

(a) the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b) Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail’s apparatus identified under sub-paragraph (a); and

(c) Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified under sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 5(1) has effect subject to this sub-paragraph.

(6) If at any time prior to the completion of the authorised development and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then the undertaker must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

(7) In the event of EMI having occurred—

(a) the undertaker must afford reasonable facilities to Network Rail for access to the undertaker’s apparatus in the investigation of such EMI;

(b) Network Rail must afford reasonable facilities to the undertaker for access to Network Rail’s apparatus in the investigation of such EMI; and

(c) Network Rail must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Network Rail’s apparatus or such EMI.

(8) Where Network Rail approves modifications to Network Rail’s apparatus under sub-paragraphs (5) or (6)—

(a) Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and

(b) any modifications to Network Rail’s apparatus approved under those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 6.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph 10(a) any modifications to Network Rail’s apparatus under this paragraph is to be deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article 40 (arbitration) to the Institution of Civil Engineers is to be read as a reference to the Institution of Electrical Engineers.

12

If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

13

The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it must have first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

14

Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to Network Rail.

15

(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may he occasioned to or reasonably incurred by Network Rail—

(a) by reason of the construction or maintenance of a specified work or the failure of such a work; or

(b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work,

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission: and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision does not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

(3) The sums payable by the undertaker under sub-paragraph (1) include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums are payable to that operator under sub-paragraph (4).

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in subparagraph (1); and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 (licences) of the Railways Act 1993.

16

Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Schedule (including the amount of the relevant costs mentioned in paragraph 15) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made under this Schedule (including any claim relating to those relevant costs).

17

In the assessment of any sums payable to Network Rail under this Schedule no account is to be taken of any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Schedule or increasing the sums so payable.

18

The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a) any railway property shown on the works plans and land plans and described in the book of reference;

(b) any lands, works or other property held in connection with any such railway property; and

(c) any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

19

Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.

20

The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 8 (consent to transfer benefit of Order) and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

(a) the nature of the application to be made;

(b) the extent of the geographical area to which the application relates; and

21

The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 38 (certification of plans etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read only memory.

SCHEDULE 8 — FOR THE PROTECTION OF NATIONAL GRID ELECTRICITY

Application

1

For the protection of National Grid referred to in this Schedule the following provisions, unless otherwise agreed between the undertaker and National Grid, have effect.

Interpretation

2

In this Schedule—

“alternative apparatus” means appropriate alternative apparatus to the 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[^f00039], belonging to or maintained by National Grid, together with any replacement apparatus and such other apparatus constructed under the powers conferred by this Order that becomes operational apparatus of National Grid or any of its entities 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;

“authorised works” has the same meaning as is given to the term “authorised development” in article 2 (interpretation) and for the purposes of this Schedule includes the use and maintenance of the authorised works;

“functions” includes powers and duties;

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

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

“National Grid” means National Grid Electricity Transmission Plc (company number 2366977), registered at 1-3 Strand, London WC2N 5EH) being a licence holder within the meaning of Part 1 of the Electricity Act 1989; and

“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.

3

Except for paragraphs 7 (retained apparatus: protection) and 8 (expenses) which apply in respect of the exercise of all or any powers under this Order affecting the rights and apparatus of National Grid, the provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 of the 1991 Act.

Acquisition of land

4

(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference, the undertaker must not acquire any land interest or apparatus or override any easement or other interest of National Grid otherwise than by agreement.

(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or within such other timeframe as may be agreed between the undertaker and National Grid) that are subject to the requirements of this Schedule that would cause any conflict with or breach the terms of any easement or other legal or land interest of National Grid or 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 or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such deeds of consent, crossing agreements, variations to existing deeds of easements, agreements or such other legal interests in favour of National Grid or grant such new deeds of grant (upon such terms and conditions as may be agreed between the undertaker and National Grid acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid) in order to verify, amend or replace the 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 other terms of this Schedule; and it is the responsibility of the undertaker to procure or 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 works.

(3) Where there is any inconsistency or duplication between the provisions set out in 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.

Removal of apparatus

5

(1) If, in the exercise of the agreement reached in accordance with paragraph 4 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under 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 the National Grid in accordance with sub-paragraphs (2) to (5).

(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 56 days’ 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 satisfaction (taking into account paragraph 8(1)) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of or land 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 except 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 Schedule must be constructed in such manner and in such line or situation as may be agreed between the undertaker and National Grid.

(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-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 promoter to be removed under the provisions of this Schedule.

Facilities and rights for alternative apparatus

6

(1) Where, in accordance with the provisions 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 National Grid and the undertaker 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.

(2) If the facilities and rights to be afforded by the undertaker and agreed with National Grid 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, then the matter must be referred to arbitration in accordance with paragraph 13 (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.

Retained apparatus: protection

7

(1) Not less than 56 days before the commencement of any authorised works that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 5(2) or otherwise, 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 if relevant.

(2) In relation to works which will or may be situated on, over, under or within—

(a) 15 metres measured in any direction of any apparatus; or

(b) 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—

(i) the exact position of the works;

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

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

(iv) the position of all apparatus;

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

(vi) any intended maintenance regimes; and

(vii) 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;

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

(e) a written management plan for high voltage hazard during construction and on-going maintenance of the cable route;

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

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

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

(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-paragraphs (2) or (3)—

(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 or delayed.

(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 or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works to which this paragraph applies must only 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 National Grid and the undertaker 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 is entitled to watch and inspect the execution of those works.

(8) Where 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 under this paragraph, must be carried out to National Grid’s satisfaction prior to the commencement of any authorised works (or any relevant part of the authorised works) for which protective works are required and National Grid must give 56 days’ notice of such works from the date of submission of a plan under this paragraph (except in an emergency).

(9) If National Grid in accordance with sub-paragraph (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, sub-paragraphs (1) to (3) and (6) to (8) apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(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 authorised 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 is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act 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—

(a) comply with sub-paragraphs (6), (7) and (8) in so far as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (12) at all times.

(12) At all times when carrying out any works authorised under the Order, the undertaker must comply with National Grid’s policies for development near overhead lines EN43-8 and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

Expenses

8

(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid on demand all charges, costs and expenses reasonably anticipated or 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 works as are referred to in this Schedule including without limitation—

(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 using its own compulsory purchase powers (with the agreement of the undertaker) to acquire any necessary rights under paragraph 7(3);

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

(d) the approval of plans;

(e) the carrying out of protective works, plus a capitalised sum to cover any additional costs to be incurred in maintaining and renewing permanent protective works; and

(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 Schedule.

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

(3) If in accordance with 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; 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,

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