Legalize / United Kingdom / Statutory-Instrument

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

Source legislation.gov.uk

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and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 40 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to National Grid by virtue of sub-paragraph (1) is to be reduced by the amount of that excess except where it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs must be borne by the undertaker.

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

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

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

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

Indemnity

9

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

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

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

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

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

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

(b) any authorised works or any other works authorised by this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker and with the benefit of the provisions of this Order under section 156 of the 2008 Act subject to the proviso that once such works become apparatus, any authorised works yet to be executed and not falling within this sub-paragraph are subject to the full terms of this Schedule including this sub-paragraph.

(4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement or compromise is to be made without first consulting the undertaker and considering their representations.

Ground subsidence monitoring scheme in respect of National Grid’s apparatus

10

(1) Any authorised works within 100 metres of any apparatus or alternative apparatus capable of interfering with or risking damage to National Grid’s apparatus must not commence until a scheme for monitoring ground subsidence (referred to in this paragraph as “the monitoring scheme”) has been submitted to and approved by National Grid, such approval not to be unreasonably withheld or delayed.

(2) The ground subsidence monitoring scheme described in sub-paragraph (1) must set out—

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

(b) the extent of land to be monitored;

(d) the timescales of any monitoring activities; and

(e) the extent of ground subsidence which, if exceeded, would require the promoter to submit for National Grid’s approval a ground subsidence mitigation scheme in respect of such subsidence in accordance with sub-paragraph (3).

(3) The monitoring scheme required by sub-paragraphs (1) and (2) must be submitted at least 56 days prior to the commencement of any works authorised by this Order or comprised within the authorised development to which sub-paragraph (1) applies. Any requirements of National Grid must be notified within 28 days of receipt of the monitoring scheme. Thereafter the monitoring scheme must be implemented as approved, unless otherwise agreed in writing with National Grid.

(4) As soon as reasonably practicable after any ground subsidence identified by the monitoring activities set out in the monitoring scheme has exceeded the level described in sub-paragraph (2)(e), a scheme setting out necessary mitigation measures (if any) for such ground subsidence (referred to in this paragraph as a “mitigation scheme”) must be submitted to National Grid for approval, such approval not to be unreasonably withheld or delayed; and any mitigation scheme must be implemented as approved, unless otherwise agreed in writing with National Grid save that National Grid retains the right to carry out any further necessary protective works for the safeguarding of their apparatus and can recover any such costs in line with paragraph 8 (expenses).

(5) If the monitoring scheme or mitigation scheme would conflict with any aspect of any ground subsidence monitoring scheme or ground subsidence mitigation scheme approved by the local planning authority under Schedule 2 (requirements) the undertaker may submit a revised monitoring scheme or mitigation scheme to National Grid for its approval, such approval not to be unreasonably withheld or delayed; and the revised monitoring scheme or mitigation scheme must be implemented as approved, unless otherwise agreed in writing with National Grid.

Enactments and agreements

11

Except to the extent provided for to the contrary elsewhere in this Schedule or by agreement in writing between the undertaker and National Grid, nothing in this Schedule affects the provisions of any enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Co-operation

12

(1) Where in consequence of the proposed construction of any of the authorised development, National Grid or the undertaker requires the removal of apparatus under paragraph 5(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 7, the undertaker must use its reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of National Grid’s undertaking and National Grid must use its reasonable endeavours to co-operate with the undertaker for that purpose.

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

Access

13

If in consequence of the agreement reached in accordance with paragraph 4(1) or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

14

Except for differences or disputes arising under paragraphs 5(2), 5(4), 6(1), 7 and 9(5) any difference or dispute arising between National Grid and the undertaker under this Schedule must, unless otherwise agreed in writing between National Grid and the undertaker, be determined by arbitration in accordance with article 40 (arbitration).

Approval of Requirements

15

The undertaker must—

(a) not without the prior approval of National Grid (such approval not to be unreasonably withheld or delayed) submit nor permit the submission of any plans, details, schemes, reports, arrangements, measures or programmes to the local planning authority under any requirement in Schedule 2 (requirements) that relate in whole or in part to any matter that affects or may affect National Grid’s apparatus including any alternative apparatus and/or in respect of any protective works required in connection with the undertaker’s apparatus under the terms of these protective provisions;

(b) provide National Grid with copies of such plans, details, schemes, reports, arrangements, measures or programmes prior to submission to the local planning authority and take into account and incorporate any reasonable comments of National Grid; and

(c) keep National Grid informed of the details of all material discussions and negotiations with the local planning authority relating to such plans, details, schemes, reports, arrangements, measures or programmes and give National Grid reasonable prior written notice of any meetings with the local planning authority relating to such matters and not object to National Grid and its consultants attending those meetings.

SCHEDULE 9 — FOR THE PROTECTION OF THE PIPELINE CORRIDOR AND PROTECTED CROSSINGS

Benefit of protective provisions

1

(1) The following provisions of this Schedule have effect for the benefit of any owner of the protected land and any owner or operator of a pipeline within the pipeline corridor, unless otherwise agreed between the undertaker and the said owner or operator.

(2) The provisions contained in paragraph 25 do not apply to the interests of Northumbrian Water Limited unless otherwise agreed between the undertaker and Northumbrian Water Limited.

Interpretation

2

In this Schedule—

“access roads” means the access roads within the Order limits giving access to pipelines or protected crossings;

“affected assets” means—underground pipelines where relevant works are to be carried out within the easement widths relating to that apparatus;apparatus on or above ground which would be physically affected by the relevant works;protected crossings where relevant works are to be carried out within 25 metres of the protected crossing concerned; andin relation to the exercise of an identified power, any apparatus in the protected land which would be affected by the exercise of that power.

“apparatus” means pipelines and cables and includes—any structure existing at the time when a particular action is to be taken under this Schedule in which apparatus is or is to be lodged or which will give access to apparatus;any cathodic protection, coating or special wrapping of the apparatus; andall ancillary apparatus properly appurtenant to the pipelines, that would be treated as being associated with a pipe or systems of pipes under section 65(2) of the Pipe-Lines Act 1962[^f00040]), as if the pipelines were a “pipe-line” in section 65(1) of that Act;

“cats easement” means the easement width of the cats pipeline;

“cats pipeline” means the pipeline identified as “Gas BP Cats” on the conveyor route plans;

“cats pipeline critical construction activities” means the following authorised works—excavation works within the cats easement;piling within 10 metres of the cats pipeline;backfilling and compaction work within the cats easement;erection of crash mats above the cats pipeline; andall lifting above the cats pipeline.

“construction access plan” means a plan identifying how access will be maintained to pipelines, the protected crossings and the Wilton Complex during the proposed construction or maintenance work including—any restrictions on general access by owners of the protected land and operators of the pipelines, including the timing of restrictions;any alternative accesses or routes of access that may be available to the undertaker using the access roads;details of how the needs and requirements of owners of the protected land and operators of the pipelines (including their needs and requirements in relation to any major works that they have notified to the other operators of the protected land as at the date when the plan is published) have been taken into account in preparing the plan;details of how uninterrupted and unimpeded emergency access with or without vehicles will be provided at all times for owners of the protected land and operators of the pipelines; anddetails of how reasonable access with or without vehicles will be retained or an alternative provided for owners of the protected land and operators of the pipelines to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the pipelines and protected crossings;

“construction or maintenance works” means any works to construct, maintain, or decommission the authorised development;

“damage” includes all damage including in relation to a pipeline leakage and the weakening of the mechanical strength of a pipeline;

“easement width” means in respect of each pipeline the easement width shown on the conveyor route plans as adjusted if necessary (in respect of pipelines shown on the conveyor route plans) or added to (in respect of pipelines constructed after the date this Order is made) as a result of the pipeline survey;

“engineer” means an engineer appointed by an owner or operator of a pipeline for the purposes of this Order;

“major works” means works by any person requiring the closure, diversion or regulation of any roads serving the Wilton Complex;

“Northumbrian Water Limited” means the company of that name (company number 02366703, whose registered office is at Northumbria House, Pity Me, Durham, DH1 5FJ);

“operator” means any person who is responsible for the construction, operation, use, maintenance or renewal of any pipeline;

“owner” means—in relation to the pipeline corridor, any person—with an interest in a pipeline in the pipeline corridor;with rights in, on, under or over the pipeline corridor in respect of a pipeline; orwith a pipeline or proposed pipeline in, on, under or over the pipeline corridor;in relation to the access roads, any person—with an interest in the access roads; orwith private rights of way on or over the access roads;in relation to the protected crossings, any person—with an interest in the protected crossings;with rights in relation to the protected crossings; orwith pipelines in or comprising the protected crossings; andin relation to protected land means any person falling within paragraphs (a) to (c) above.

“pipelines” means the apparatus located in the pipeline corridor, or in or comprising a protected crossing at the time the pipeline survey is carried out or as may be added between the date of the pipeline survey and the commencement of works, providing that any such additions are notified to the undertaker as soon as reasonably practicable;

“pipeline survey” means a survey of the pipeline corridor and the protected crossings to establish if not known—the precise location of the pipelines and the protected crossings;the specification of the pipelines and protected crossings including, where relevant, their composition, diameter, pressure and the products they are used to convey;any special requirements or conditions relating to the pipelines which differ from the requirements or conditions applying to standard pipelines of that type;the precise location of any easement widths or rights (where it is possible to establish this).

“protected crossings” means—the tunnel under the River Tees which carries pipelines known as Tunnel 2; andthe apparatus under the River Tees known as the Breagh Pipeline;

“protected land” means such parts of the Order land as fall within—the access roads;the pipeline corridor; orthe protected crossings;

“relevant work” means a work which may have an effect on the operation, maintenance, abandonment of or access to any pipeline or a protected crossing;

“specified persons” means—the following—Company Secretary, SABIC UK Petrochemicals Limited, Wilton Centre, Redcar, Cleveland, TS10 4RF in relation to SABIC UK Petrochemicals Limited;Operations Manager, Huntsman Polyurethanes, PO Box 99, Wilton, Redcar, TS10 4YA in relation to Huntsman Polyurethanes (UK) Limited;Company Secretary, INEOS UK SNS Limited, 4th Floor, 90 High Holborn, London WC1V 6LJ in relation to INEOS UK SNS Limited; andCATS Manager, CATS Terminal, Seal Sands Road, Seal Sands, Middlesbrough, Teesside TS1 1UB and Technical Director, CATS North Sea Limited, Wynyard Park House, Wynyard Avenue, Wynyard, Billingham TS22 STB in relation to CATS North Sea Limited, orsuch other person as they may notify to the undertaker in writing; orwhere a person for whose benefit these protective provisions have effect is not mentioned in paragraph (a)—that person where the person is not an incorporated body;the company secretary in relation to a company;the designated partner in relation to a limited liability partnership; orsuch other person as they may notify to the undertaker in writing;

“unknown rights” means rights which are—not known at the date of the Order; oridentified as unknown in the book of reference,but not including any rights relating to pipelines (or access to pipelines) where a pipeline is shown on the pipeline survey;

“Wilton Complex” means the land shown outlined in red on the Wilton Complex Plan;

“Wilton Complex Plan” means the plan entitled “Location of Wilton Complex (Plan 1)” (drawing number T-MIS-0065-01);

“works details” means the following—a description of the proposed works together with plans and sections of the proposed works where such plans and sections are reasonably required to describe the works concerned or their location;details of any proposed temporary crossing points under paragraph 10;details of methods and locations of any piling proposed to be undertaken under paragraph 14;details of methods of excavation and any zones of influence the undertaker has calculated under paragraph 15;details of methods and locations of any compaction of backfill proposed to be undertaken under paragraph 16;details of the location of any pipelines affected by the oversailing provisions in paragraph 17, including details of the proposed clearance;details of the method location and extent of any dredging, a technical assessment of the likely effect of the dredging on the protected crossings and any mitigation measures which are proposed to be put in place to prevent damage to the protected crossings;details of the undertaker and their principal contractors’ management of change procedures;details of the traffic management plan, which plan must include details of vehicle access routes for construction and operational traffic and which must assess the risk from vehicle movements and include safeguards to address identified risks;details of the electrical design of the authorised works in sufficient detail to allow an independent specialist to assess whether AC interference from the authorised development may cause damage to the cats pipeline;details (to include a dynamic analysis undertaken by the undertaker and provided to the cats pipeline operator) of the conveyor and conveyor support structure and the measures to be undertaken to ensure vibration does not impact on the cats pipeline;details of the lifting study during the construction phase, which must include a technical assessment of the protection of underground assets and which study must provide for individual lift plans;details of the lifting study during the operational phase, which must include a technical assessment of the protection of underground assets and which study must provide for individual lift plans;details of the means by which the entirety of the cats pipeline can be properly inspected and if necessary repaired during the construction and operation of the authorised development which must provide for an excavation to a depth of 0.6 metres below the cats pipeline and 2 metres either side of the centreline of the cats pipeline consistent with the relevant constructability notes;details of the emergency response plan as prepared in consultation with local emergency services and the pipeline operators;details of the assessment and monitoring work to be undertaken both prior to the construction of the authorised development and during the operation of the authorised development to ascertain any change or damage to the cats pipeline cathodic protection system and the proposed remedial works; andany further particulars provided in accordance with paragraph 4(2).

Pipeline survey

3

(1) Before commencing any part of the authorised development in the pipeline corridor or which may affect a protected crossing the undertaker must—

(a) carry out and complete the pipeline survey; and

(b) comply with sub-paragraph (3) below.

(2) The pipeline survey must be undertaken by a surveyor who is a member of the Royal Institute of Chartered Surveyors with at least 10 years’ experience of such surveys.

(3) When the pipeline survey has been completed the undertaker must serve a copy of the pipeline survey on the owners and operators of the pipelines and protected crossings and invite them to advise the undertaker within 28 days of receipt of the survey if they consider that the pipeline survey is incomplete or inaccurate and if so in what respect following which the undertaker must finalise its pipeline survey.

Authorisation of works details affecting pipelines or protected crossings

4

(1) Before commencing any part of a relevant work the undertaker must submit to the owners and any operators of any affected asset the works details and obtain a written acknowledgement of receipt of those works details from the specified persons in relation to the affected asset concerned.

(2) The undertaker must as soon as reasonably practicable provide such further particulars as the owner or operator of any affected asset may, within 45 days from the receipt of the works details under sub-paragraph (1), reasonably require.

5

No part of a relevant work is to be commenced until one of the following conditions has been satisfied—

(a) the works details supplied in respect of that relevant work under paragraph 4 have been authorised by the owner and operator of all the affected assets; or

(b) the works details supplied in respect of that relevant work under paragraph 4 have been authorised by an expert under paragraph 7(3); or

6

(1) Any authorisation by the owner or operator of an affected asset required under paragraph 5(a) must not be unreasonably withheld but may be given subject to such reasonable conditions as the owner or operator of the affected asset may require to be made for—

(a) the continuing safety and operation or viability of the affected asset; and

(b) the requirement for the owner and operator of the affected asset to have—

(i) uninterrupted and unimpeded emergency access with or without vehicles to the affected asset at all times; and

(ii) reasonable access with or without vehicles to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the affected asset.

(2) Where the owner or operator of the cats pipeline can reasonably demonstrate that the authorised development will significantly adversely affect the safety of the cats pipeline the owner or operator is entitled to withhold their authorisation until the undertaker can demonstrate to the reasonable satisfaction of the owner or operator that the authorised development will not significantly adversely affect the safety of the cats pipeline.

(3) The authorised development must be carried out in accordance with the works details authorised under paragraph 5 and any conditions imposed on the authorisation under paragraph 6(1).

(4) Where there has been a reference to an expert in accordance with paragraph 7(2) and the expert gives authorisation, the authorised development must be carried out in accordance with the authorisation and conditions contained in the award of the expert under paragraph 7(3).

7

(1) In the event that—

(a) no response has been received to the submission of the works details under paragraph 4 within 45 days of the undertaker obtaining a written acknowledgment of receipt from a specified person under paragraph 4(1) and no further particulars have been requested under paragraph 4(2); or

(b) authorisation has not been given within 30 days of the undertaker obtaining a written acknowledgment of receipt from a specified person of the further particulars supplied under paragraph 4(2),

approval of the works details is to be deemed to be given and the relevant works may commence.

(2) In the event that—

(a) the undertaker considers that the owner or operator has unreasonably withheld its authorisation under paragraph 6(1); or

(b) the undertaker considers that an owner or operator has given its authorisation under paragraph 6(1) subject to unreasonable conditions,

the undertaker may refer the matter to an expert for determination under paragraph 34 .

(3) Where the matter is referred to an expert under paragraph 7(2) the expert is to determine whether or not authorisation should be given and, if so, the conditions which should reasonably be attached to the authorisation under sub-paragraphs (a) and (b) of paragraph 6(1).

(4) Where the undertaker considers that the owner or operator of the cats pipeline has unreasonably withheld its authorisation under paragraph 6(2) then the matter may be referred to an expert on the application of either party (after giving notice in writing to each other) appointed by the secretary of the United Kingdom Onshore Pipeline Association for determination under paragraph 34.

Notice of works

8

The undertaker must provide to the owner and operator of an affected asset a minimum of 28 days’ notice prior to commencing any relevant work in order that an engineer can be made available to observe the relevant works and, when required, advise on the necessary safety precautions.

Further provisions about works

9

(1) Before carrying out a relevant work the undertaker must—

(a) provide the owners and any operators of any affected asset with baseline data for any existing cathodic protection of the asset; and

(b) carry out a pipeline settlement and stress analysis to demonstrate any potential pipeline movement will not present an integrity risk to the affected asset.

(2) The pipelines must be located by hand digging prior to the use of mechanical excavation provided that any excavation outside of 2 metres of the centreline of a pipeline may be dug by mechanical means.

(3) The undertaker must engage an independent construction Quality Assurance Inspector to oversee cats pipeline critical construction activities during the construction phase.

10

(1) Where temporary crossings for construction traffic are to be used, other than where the pipelines are under a carriageway of adequate standard of construction, then the crossing points must be suitably reinforced with sleepers or road plates or a specially constructed reinforced concrete raft or by installing a temporary bridge over the pipeline as necessary.

(2) Details of proposed temporary crossing points referred to in sub-paragraph (1) must be notified to the owner and operator of the pipeline in accordance with paragraph 4.

11

During construction, an area equivalent to the easement widths of the pipelines (taken from the actual location of the pipelines shown on the pipeline survey) must be fenced off using some form of visual indication such as netlon fencing or “heras” type fence panels. Suitable signage warning of the danger of live pipelines must be erected at a minimum distance of every 50 metres.

12

No explosives are to be used within the protected land.

13

(1) There must be no lifting over any exposed sections of the cats pipeline or live or vulnerable plant containing hazardous substances or pressure energy.

(2) Any construction works above the buried sections of the cats pipeline require the protection of the cats pipeline.

(3) All piling within 1.5 metres of the centreline of a pipeline must be non-percussive, except that in the case of the cats pipeline all piling within 10 metres of the centreline of the cats pipeline must be non-percussive.

14

(1) Where piling is required within 50 metres of the centreline of a pipeline or which could have an effect on the operation or maintenance of a pipeline or access to a pipeline, details of the proposed method for and location of the piling must be provided to the owner and operator of the relevant pipeline for approval in accordance with paragraph 4.

(2) Any proposed piling operations within—

(a) 10 metres either side of the centreline of the cats pipeline require the crown of the pipeline to be physically exposed, so its location can be confirmed with the asset operator or owner as appropriate and where within 2 metres of the centreline of the cats pipeline it must be exposed by hand digging only; and

(b) 5 metres either side of the centreline of the cats pipeline and, in addition to the obligations in paragraph 14(2)(a), require excavation to be carried out to a level below the depth of the pipeline, to ensure that no materials are present that could damage the pipeline if disturbed, in the presence of the asset owner or operator as appropriate.

(3) All excavations within 2 metres of the centreline of the cats pipeline must be hand dug.

15

(1) Where excavation of trenches (including excavation by dredging) adjacent to a pipeline affects its support, the pipeline must be supported in a manner approved by the owner and operator of the relevant pipeline.

(2) Where the undertaker proposes to carry out excavations which might affect above ground structures such as pipeline supports in the pipeline corridor, the undertaker must calculate the zone of influence of those excavations and provide those calculations to the owner and operator of the pipeline under paragraph 4.

16

(1) Where a trench is excavated across or parallel to the line of a pipeline, the backfill must be adequately compacted to prevent any settlement which could subsequently cause damage to the pipeline.

(2) Proposed methods and locations of compacting must be notified to the owner and operator of the pipeline in accordance with paragraph 4.

(3) Compaction testing must be carried out once back filling is completed to establish whether the backfill has been adequately compacted as referred to in sub-paragraph (1) and what further works may be necessary, and the results of such testing must be supplied to the owner and operator of the pipeline.

(4) Where it is shown by the testing under sub-paragraph (3) to be necessary, the undertaker must carry out further compaction testing under sub-paragraph (1) and sub-paragraphs (1), (2) and (3) continue to apply until such time as the backfill has been adequately compacted.

(5) In the event that it is necessary to provide permanent support to a pipeline which has been exposed over the length of the excavation before backfilling and reinstatement is carried out, the undertaker must pay to the owner or operator of the relevant pipeline a capitalised sum representing the increase of the costs (if any) which may be expected to be reasonably incurred in maintaining, working and, when necessary, renewing any such alterations or additions.

(6) In the event of a dispute as to—

(a) whether or not backfill has been adequately compacted under sub-paragraphs (1) to (4); or

(b) the amount of any payment under sub-paragraph (5),

the undertaker or the owner or operator of the relevant pipeline may refer the matter to an expert for determination under paragraph 34.

17

(1) A minimum clearance of 1500 millimetres must be maintained between any part of the authorised development and any affected asset (whether that part of the authorised development is parallel to or crosses the pipeline) unless otherwise agreed with the owner and operator of the affected asset.

(2) No manholes or chambers are to be built over or round the pipelines.

Monitoring for damage to pipelines

18

(1) When carrying out the relevant work the undertaker must monitor the relevant affected assets to establish whether damage has occurred.

(2) Where any damage occurs to an affected asset as a result of the relevant work, the undertaker must immediately cease all work in the vicinity of the damage and must notify the owner and operator of the affected asset to enable repairs to be carried out to the reasonable satisfaction of the owner and operator of the affected asset.

(3) If damage has occurred to an affected asset as a result of relevant work the undertaker will, at the request and election of the owner or operator of the affected asset—

(a) afford the owner or operator of the affected asset all reasonable facilities to enable it to fully and properly repair and test the affected asset and pay to the owner or operator its costs incurred in doing so including the costs of testing the effectiveness of the repairs and cathodic protection and any further works or testing shown by that testing to be reasonably necessary; or

(b) fully and properly repair the affected asset as soon as reasonably practicable, in which case the repairs must be properly tested by the undertaker and be shown to the satisfaction of the owner or operator of the affected asset to have effectively repaired the affected asset before any backfilling takes place.

(4) Where testing has taken place under sub-paragraph (3)(b), the undertaker must (except where an owner or operator of the affected asset agrees otherwise in writing) provide it with a copy of the results of such testing prior to any backfilling.

(5) Following the completion of a relevant work if damage is found to have occurred to an affected asset as a result of the relevant work, sub-paragraphs (2) to (4) of this paragraph apply to that damage.

(6) In relation to the approved assessment and monitoring work to be undertaken both prior to the construction of the authorised development and during the operation of the authorised development to ascertain any change or damage to the cats pipeline cathodic protection system, the undertaker must undertake any necessary remedial work.

(7) In the event that the undertaker does not carry out necessary remedial work in a timely manner then the affected owner is entitled, but not obliged, to undertake the necessary remedial work and recover the cost of doing so from the undertaker.

19

(1) If any damage occurs to a pipeline causing a leakage or escape from a pipeline, all work in the vicinity must cease and the owner and operator of the pipeline must be notified immediately.

(2) Where there is leakage or escape of gas, the undertaker must immediately—

(a) remove all personnel from the immediate vicinity of the leak;

(b) inform the owner and operator of the relevant pipeline;

(c) prevent any approach by the public, extinguish all naked flames and other sources of ignition for at least 350 metres from the leakage; and

(d) assist emergency services as may be requested.

Compliance with requirements, etc. applying to the protected land

20

(1) Subject to sub-paragraph (2), in undertaking any works in relation to the protected land or exercising any rights relating to or affecting owners of the protected land, the undertaker must comply with such conditions, requirements or regulations relating to health, safety, security and welfare as are operated in relation to access to or activities in the protected land.

(2) The undertaker is not bound by any condition, requirement or regulation that is—

(a) introduced after the date on which notice of the works was given under paragraph 8 ; or

(b) determined by the expert following a determination under paragraph 34 to unreasonably—

(i) create significant engineering, technical or programming difficulties; or

(ii) materially increase the cost of carrying out the works.

(3) Sub-paragraph (2) does not apply if the condition, requirement or regulation was introduced by way of legislation, direction or policy of the government, a relevant government agency, a local authority (exercising its public functions) or the police.

Access for construction and maintenance

21

(1) Before carrying out any construction or maintenance works affecting access rights over the access roads, the undertaker must prepare a draft construction access plan and publicise and consult on the draft construction access plan with owners of the protected land operators of the pipelines and any owners and occupiers of any properties within the Wilton Complex whose access to their property is likely to be affected by those works.

(2) The undertaker must take account of the responses to any consultation referred to in sub-paragraph (1) before approving the construction access plan.

22

(1) In preparing a construction access plan under paragraph 21 the undertaker must—

(a) establish the programme for major works in the pipeline corridor and the Wilton Complex and plan the construction or maintenance works to prevent or (if such conflict cannot be reasonably prevented) to minimise any conflict between the construction or maintenance works and the programmed major works; and

(b) establish where an owner of the protected land or operator of a pipeline or any owners and occupiers of any properties within the Wilton Complex whose access to their property is likely to be affected by those works has a reasonable expectation to exercise access rights over particular access roads in respect of which rights are proposed to be restricted or extinguished, establish the purpose of that expectation and provide an alternative or replacement means of access whereby that expectation can be met.

(2) Where a reference is made to expert determination under paragraph 34 in relation to any disagreement about a construction access plan, in addition to the criteria set out in paragraph 34(6) the appointed expert must have regard to—

(a) whether major works were, at the date of the consultation already programmed to take place;

(b) the extent to which the authorised development can be accommodated simultaneously with the programmed major works;

(c) the usual practice in respect of conditions or requirements subject to which authorisation to close or divert the access roads is given by the owner of the access roads;

(d) the undertaker’s programme in respect of the authorised development and the extent to which it is reasonable for it to carry out the authorised development at a different time;

(e) the availability (or non-availability) of other times during which the authorised development could be carried out;

(f) the programme in respect of the major works and the extent to which it is reasonable for the owner or operator to carry out the major works at a different time; and

(g) the financial consequences of the decision on the undertaker and on any owner and operator.

(3) In this paragraph, “programmed”, in relation to works, means works in respect of which the owner of the access roads has been notified of the specific dates between which the works are programmed to be carried out provided that the period covered by such dates must be length of time the works are programmed to be carried out and not a period within part of which the works are to be carried out.

23

(1) No works affecting access rights over the access roads are to commence until 30 days after a copy of the approved construction access plan is served on the owners of the protected land and operators of pipelines.

(2) Where an owner of the protected land or an operator of a pipeline refers the construction access plan to an expert for determination under paragraph 34, no works affecting access rights over the access roads may commence until that determination has been provided.

(3) In carrying out construction or maintenance works the undertaker must at all times comply with the construction access plan.

Restriction on exercising powers

24

(1) The undertaker must not in the exercise of the powers conferred by this Order acquire, appropriate, extinguish, suspend or override any rights in the protected land if the authorised development can reasonably and practicably be carried out without such acquisition, appropriation, extinguishment, suspension or override.

(2) The undertaker must in the exercise of the powers conferred by this Order at all times act so as to minimise, as far as reasonably practicable, any detrimental effects on owners of the protected land and operators of the pipelines, including any disruption to access and supplies of utilities and other services that are required by them in order to carry out their operations.

25

(1) The undertaker must not exercise the powers conferred by articles 24 (compulsory and other acquisition of rights) and 25 (power to override easements and other rights) to acquire, appropriate, extinguish, suspend or override any rights in the protected land relating to the pipelines or access to pipelines except in relation to unknown rights.

(2) Regardless of sub-paragraph (1) the undertaker must not exercise the identified powers unless one of the following consents has been given—

(a) written consent by the owner of the protected land and the operator of any affected pipeline;

(b) consent by an expert appointed under paragraph 34; or

(3) Where an identified power provides for the undertaker to automatically extinguish or override a right or interest of an owner of the protected land, the restriction in sub-paragraph (2) is to operate so that the extinguishment or override of the right or interest does not apply unless the owner of the right or interest has given its consent or consent has been given by an expert appointed under paragraph 34 or is deemed to be given under sub-paragraph (7).

(4) Where a person’s consent is required under sub-paragraph (2), that consent must not be unreasonably withheld.

(5) If the undertaker considers that consent has been unreasonably withheld, the undertaker may refer the request for consent to an expert appointed under paragraph 34 for determination.

(6) If an owner of the protected land or operator of a pipeline fails to respond to a request for consent within 30 days of the undertaker obtaining a written acknowledgement of receipt of the request for consent from the specified person the undertaker may serve a further notice on that owner or operator (a “deeming notice”).

(7) In the event that an owner of the protected land or operator of a pipeline fails to respond to a deeming notice within 10 working days from the date when a written acknowledgement of receipt of the deeming notice is obtained by the undertaker from the specified person, the consent of the owner of the protected land or operator of a pipeline as the case may be is deemed to be given.

(8) In this paragraph, “identified powers” means the powers conferred by the following—

(a) article 10 (street works);

(b) article 11 (temporary stopping up of streets);

(d) article 14 (discharge of water);

(e) article 16 (authority to survey and investigate the land);

(f) article 24 (compulsory and other acquisition of rights) in so far as the exercise of such powers is not excluded by paragraph 24 (1) and sub-paragraph (1);

(g) article 25 (power to override easements and other rights) in so far as the exercise of such powers is not excluded by paragraph 24 (1) and sub-paragraph (1);

(h) article 29 (rights under or over streets); and

(i) article 30 (temporary use of land for carrying out the authorised development).

Insurance

26

(1) Before carrying out any part of the authorised development on the protected land, the undertaker must put in place a policy of insurance with a reputable insurer against its liabilities under paragraph 28 in accordance with the terms and level of cover notified under sub-paragraph (2) or, in the case of dispute, in accordance with the terms and level of cover determined by an expert under paragraph 34, and evidence of that insurance must be provided on request to owners of the protected land and operators of pipelines.

(2) Not less than 30 days before carrying out any part of the authorised development on the protected land or before proposing to change the terms of the insurance policy, the undertaker must notify the owners of the protected land and operators of pipelines of details of the terms of the insurance policy that it proposes to put in place, including the proposed level of the cover to be provided.

(3) The undertaker must maintain insurance in relation to the authorised development affecting owners of the protected land and operators of pipelines during the construction, operation, maintenance, repair and decommissioning of the authorised development in the terms and at the level of cover specified in sub-paragraph (2) or at such level as may otherwise be determined by an expert under paragraph 34.

27

(1) If an owner of the protected land or operator of a pipeline has a dispute about the proposed insurance (including the terms or level of cover) to be provided under paragraph 26—

(a) the owner of the protected land or operator of a pipeline may refer the matter to an expert for determination under paragraph 34; and

(b) the undertaker may put in place an insurance policy it considers to be appropriate and continue with the authorised development at its own risk whilst the determination under paragraph 34 is complete, following which the undertaker must adjust the insurance policy if necessary to accord with the determination.

Costs

28

(1) The undertaker must repay to owners of the protected land and operators of the pipelines all reasonable fees, costs, charges and expenses reasonably incurred by them in relation to these protective provisions in respect of—

(a) authorisation of survey details submitted by the undertaker under paragraph 3(3), authorisation of works details submitted by the undertaker under paragraph 4 and the imposition of conditions under paragraph 6;

(b) the engagement of an engineer and their observation of the authorised works affecting the pipelines and the provision of safety advice under paragraph 8;

(d) considering the effectiveness of any compacting which has taken place under paragraph 16, including considering and evaluating compacting testing results and the details of further compaction works under that paragraph;

(e) the repair and testing of a pipeline or protected crossing under paragraph 18;

(f) considering and responding to consultation in relation to the construction access plan under paragraph 21 and providing details of their programme for major works to the undertaker under paragraph 22;

(g) dealing with any request for consent or agreement by the undertaker under paragraph 25; and

(h) considering the adequacy of the terms and level of cover of any insurance policy proposed or put in place by the undertaker under paragraph 26,

including the reasonable costs incurred by owners and operators in engaging and retaining such external experts, consultants and contractors as may be reasonably necessary to allow the owner or operator to carry out its functions under these protective provisions.

(2) The undertaker must indemnify and keep the owners of the protected land and operators of the pipelines indemnified against all reasonable costs, charges, damages and expenses, and against consequential loss and damage, which may be occasioned or reasonably incurred by the owners and operators—

(a) by reason of the construction, operation, maintenance, repair and decommissioning of the authorised development or the failure of it; 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 the construction, operation, maintenance, repair and decommissioning of the authorised development,

and the fact that any act or thing may have been done by the owner of protected land or operator of a pipeline on behalf of the undertaker or in accordance with plans approved by or on behalf of the owner or operator or in accordance with any requirement of the engineer appointed by the owner or operator or under his supervision does not (if it was done without negligence on the part of the owner or operator or of any person in their employ or of its contactors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(3) An owner or operator must give the undertaker reasonable notice of any claim or demand under sub-paragraph (2) and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

(4) An owner or operator 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 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.

(5) In the assessment of any sums payable to an owner or operator under this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by, or any agreement entered into by, the owner or operator 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.

Further protection in relation to the exercise of powers under the Order

29

The undertaker must give written notice to the owners of the protected land and the operators of pipelines of the terms and level of cover of any guarantee or alternative form of security put in place under article 23 (guarantees in respect of payment of compensation) and any such notice must be given no later than 28 days before any such guarantee or alternative form of security is put in place specifying the date when the guarantee or alternative form of security comes into force.

30

The undertaker must give written notice to the owners of the protected land and the operators of pipelines 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

31

The undertaker must, when requested to do so by an owner of the protected land or an operator of a pipeline, provide it with a complete set of the documents submitted to and certified by the Secretary of State in accordance with article 38 (certification of plans etc.) in the form of a computer disc with read only memory.

32

The authorised development must be carried out in accordance with the methods and measures set out in the relevant constructability notes.

33

Prior to the commencement of the authorised development the undertaker must prepare an emergency response plan following consultation with the local emergency services and provide a copy of that plan to the owners of the protected land and the operators of the pipelines.

Expert determination

34

(1) Except as provided in sub-paragraph (7), article 40 (arbitration) does not apply to this Schedule.

(2) Any difference under this Schedule must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an expert, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(3) All parties involved in settling any difference must use best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the expert must be appointed within 28 days of the notification of the dispute.

(4) The fees of the expert are payable by the parties in such proportions as the expert may determine or, in the absence of such determination, equally.

(5) The expert must—

(a) invite the parties to make submission to the expert in writing and copied to the other party to be received by the expert within 21 days of the expert’s appointment;

(b) permit a party to comment on the submissions made by the other party within 21 days of receipt of the submission;

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

(b) the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;

(d) the nature of any operation or development undertaken or proposed to be undertaken by any party other than the undertaker;

(e) the ability of any party other than the undertaker to undertake a relevant operation or development in a timely and cost-effective manner, while giving consideration to any restriction or limitation which might be caused to the ability of any party to carry out their statutory or regulatory duties, requirements or obligations;

(f) the effects of the undertaker’s proposals on any party other than the undertaker and the effects of any operation or development undertaken by any party other than the undertaker;

(g) whether this Order provides any alternative powers by which the undertaker could reasonably achieve the development outcome sought in a manner that would reduce or eliminate adverse effects on any party other than the undertaker;

(h) the effectiveness, cost and reasonableness of proposals for mitigation arising from any party;

(i) the constructability notes; and

(j) any other important and relevant consideration.

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 40.

SCHEDULE 10 — FOR THE PROTECTION OF ASSET OWNERS AND OTHERS

PART 1 — FOR THE PROTECTION OF ASSETS BRIDGED OR OVERSAILED

1

The following provisions of this Part of this Schedule have effect, unless otherwise agreed between the undertaker and the protected asset owner.

2

In this Part of this Schedule—

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

“Deeds of Grant” means the deeds dated 23rd September 1949 and 23rd February 1954 made between Imperial Chemical Industries Limited and Dorman Long & Co 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 the protected asset;

“protected asset” means the assets and land identified in the annex to this Part of this Schedule; 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, a protected asset.

3

Where under this Part of this Schedule a protected asset owner is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that the protected asset owner complies with any obligations under statute.

4

(1) The undertaker must not in the exercise of the powers conferred by this Order—

(a) create, acquire, appropriate, extinguish or suspend any rights or covenants in respect of any protected asset if the authorised development can reasonably and practicably be carried out in accordance with the protective provisions without such creation, acquisition, appropriation, extinguishment or suspension; or

(b) regardless of sub-paragraph (a) restrict the rights contained in the Deeds of Grant in so far as such rights are consistent with the construction, operation and maintenance of the authorised development in accordance with the protective provisions.

(2) The undertaker must in the exercise of the powers conferred by this Order at all times act so as to minimise, as far as reasonably practicable, any detrimental effects on protected assets.

(3) The undertaker must not in the exercise of the powers conferred by this Order prevent access via any existing pedestrian or vehicular access to any protected asset, unless preventing such access is with the consent of the protected asset owner and is in any event subject to exception in the case of emergency.

(4) The undertaker must not under the powers of this Order acquire or create new rights over a protected asset other than such rights as are necessary for the construction, operation and maintenance of Works No. 4 and Works No. 5 in accordance with the protective provisions without the consent of the protected asset owner.

(5) Where the protected asset owner 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) Before carrying out any works on any part of the authorised development affecting a protected asset the undertaker must put in place a policy of insurance with a reputable insurer against consequential loss and damage suffered by protected asset owners, and evidence of that insurance must be provided on request to protected asset owners.

(2) Not less than 30 days before carrying out any works on any part of the authorised development affecting a protected asset or before proposing to change the terms of the insurance policy, the undertaker must notify the affected owners of details of the terms of the insurance policy that it proposes to put in place including the proposed level of the cover to the provided.

(3) The undertaker must maintain insurance in relation to works or the use of the authorised development affecting the protected asset during the operation of the authorised development at the level specified in the notice of proposed insurance.

6

If a protected asset owner notifies the undertaker that it considers that any proposed exercise by the undertaker of a power under this Order breaches these protective provisions or if there is a dispute about the proposed insurance (including the terms or level of cover) to be provided under paragraph 5 before such a power may be exercised—

(a) the protected asset owner may refer the matter to arbitration for determination under article 40 (arbitration) and paragraph 21;

(b) in respect of an alleged breach of these protective provisions in relation to any proposed exercise by the undertaker of a power under this Order that has been referred to arbitration the undertaker must not exercise the power until that determination has been concluded; and

(c) the undertaker may put in place an insurance policy it considers to be appropriate and continue with the authorised development at its own risk whilst the determination under article 40(1) is completed, following which the undertaker must adjust the insurance policy if necessary to accord with the determination.

7

(1) The undertaker must before commencing construction of any specified work supply to the protected asset owner proper and sufficient plans of and construction methodology for that work for the reasonable approval of the protected asset owner and the undertaker must as soon as reasonably practicable provide such further particulars as the protected asset owner may within 45 days from the receipt of the plans and construction methodology reasonably require.

(2) The specified work must not be commenced except in accordance with such plans and construction methodology as have been approved in writing by the protected asset owner or have been deemed to be approved under sub-paragraph (3) or settled by arbitration under the provisions of article 40(1) and paragraph 21.

(3) The approval of the protected asset owner under sub-paragraph (1) must not be unreasonably withheld, and in the event that—

(a) no response has been received to the submission of the plans and construction methodology within 45 days of the submission of the plans by the undertaker to the protected asset owner and no further particulars have been requested under sub-paragraph (1); or

(b) no refusal of approval has been received within 30 days of the undertaker providing to the protected asset owner the further particulars supplied under sub-paragraph (1),

approval of the plans and construction methodology is to be deemed to be given and the relevant works may commence.

(4) No refusal of the approval sought under sub-paragraph (1) is reasonable for the purposes of sub-paragraph (3) or determination under article 40(1) unless the protected asset owner can reasonably demonstrate that the construction of the specified work will materially affect the safe operation or structural integrity of the protected asset concerned.

(5) In the event that the undertaker considers that the protected asset owner has unreasonably withheld its authorisation under sub-paragraph (1), the undertaker may refer the matter to arbitration for determination under article 40 and paragraph 21.

8

(1) Any specified work, when commenced, must so far as reasonably practicable be constructed in accordance with these protective provisions and—

(a) without unnecessary delay in accordance with the plans and construction methodology approved or deemed to have been approved or settled under paragraph 7;

(b) under the supervision (if given) and to the reasonable satisfaction of the protected asset owner;

(d) so as not to interfere with or obstruct the free, uninterrupted and safe use of any protected asset or any traffic on that asset.

(2) If any damage to a protected asset 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 make good such damage without unreasonable delay and must pay to the protected asset owner all reasonable expenses incurred by the protected asset owner and compensate for any loss which it may sustain by reason of any such damage, interference or obstruction.

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

9

The undertaker must—

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

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

10

(1) If any permanent or temporary alterations or additions to a protected asset are reasonably necessary in consequence of the construction or operation of a specified work, in order to ensure the safety of the protected asset or the continued safe operation of the protected asset, such alterations and additions may be carried out by the protected asset owner and the undertaker must pay to the protected asset owner the 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 the protected asset owner in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) The protected asset owner, in respect of the capitalised sums referred to in this paragraph, must provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(3) If the cost of maintaining, working or renewing a protected asset 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 the protected asset owner under this paragraph.

11

The undertaker must repay to the protected asset owner all reasonable fees, costs, charges and expenses reasonably incurred by the protected asset owner—

(a) in respect of the approval by the protected asset owner of plans submitted by the undertaker and the supervision by it of the construction of a specified work;

(b) 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 the protected asset 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;

(c) in respect of any special traffic working resulting from any speed restrictions which may, in the opinion of the protected asset owner, 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.

12

If at any time after the completion of a specified work, not being a work vested in a protected asset owner, the protected asset owner 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 a protected asset, the undertaker, on receipt of such notice and without unreasonable delay, must take such steps as may be reasonably necessary (and in accordance with the protective provisions) to put that specified work in such state of maintenance as not adversely to affect the protected asset.

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 protected asset unless it has first consulted the protected asset owner and it must comply with the protected asset owner’s reasonable requirements for preventing conflict or confusion between such illumination or illuminated sign or signal and any signal or other light used for controlling, directing or securing the safety of traffic on the protected asset.

14

Any additional expenses which a protected asset owner may reasonably incur in altering, reconstructing or maintaining a protected asset under any powers existing at the making of this Order by reason of the existence of a specified work, provided that (other than in the case of emergency or an operational imperative requiring urgent action) 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, are to be repaid by the undertaker to the protected asset owner.

15

The protected asset owner 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 Part of this Schedule 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 Part of this Schedule.

16

In the assessment of any sums payable to the protected asset owner under this Part of this Schedule, any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by the protected asset owner must not be taken into account 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 Part of this Schedule or increasing the sums so payable.

17

The undertaker and the protected asset owner may (at their absolute discretion), enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a) any protected asset;

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

(c) any rights and obligations (whether or not statutory) of the protected asset owner relating to any protected asset or any lands, works or other property referred to in this paragraph.

18

The undertaker must give written notice to the protected asset owner 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 (including the identity of the parties to which it relates);

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

19

The undertaker, 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, must provide a set of those plans to the protected asset owner in the form of a computer disc with read only memory or such other electronic data format as the protected asset owner may reasonably request.

20

(1) The plans and construction methodology submitted for approval under paragraph 7 of this Part of this Schedule must have regard to the principles set out in the relevant constructability notes but a refusal of plans or construction methodology from a protected asset owner from whom approval is sought under paragraph 7 is not to be deemed to be unreasonable solely on the basis that the plans and construction methodology comply with the relevant constructability note.

(2) The minimum headroom clearance between the upper surface of the hot metal rail and bridge shown as MC3 on the conveyor route plans and the underside of the conveyor must be 7.850 metres.

(3) The minimum headroom clearance between the upper surface of the road and bridge shown as MC6 on the conveyor route plans and the underside of the conveyor must be 8.240 metres.

21

(1) Any dispute under this Schedule is to be determined by arbitration as provided for in article 40 (arbitration), provided that—

(a) all parties involved in settling any difference have first used best endeavours to do so within 21 days from the date of a dispute first being notified in writing by one party to the other and in the absence of the difference being settled within that period the arbitrator is to be appointed in accordance with article 40; and

(b) any dispute to which this paragraph relates must be referred to and settled by a single independent and suitable person who holds appropriate professional qualifications and is a member of a professional body relevant to the matter in dispute acting as an arbitrator, such person to be agreed by the differing parties or, in the absence of agreement, identified by the President of the Institution of Civil Engineers.

(2) Any dispute under this Schedule that is referred to arbitration in accordance with article 40 must, subject to the requirements of the appointed arbitrator, follow the procedure set out in sub-paragraphs (3) to (7).

(3) The fees of the arbitrator are payable by the parties in such proportions as the arbitrator may determine or, in the absence of such determination, equally.

(4) The arbitrator must—

(a) invite the parties to make submission to the arbitrator in writing and copied to the other party to be received by the arbitrator within 28 days of his or her appointment (or such other timescale as the arbitrator determines);

(b) permit a party to comment on the submissions made by the other party within 28 days of receipt of the submission (or such other timescale as the arbitrator determines);

(d) give reasons for his or her decision.

(5) The arbitrator must consider where relevant—

(a) the development outcome sought by the undertaker;

(b) the ability of the undertaker to achieve its outcome in a timely and cost-effective manner;

(d) the nature of any operation or development undertaken or proposed to be undertaken by any party other than the undertaker;

(e) the ability of any party other than the undertaker to undertake a relevant operation or development in a timely and cost-effective manner;

(f) the effects of the undertaker’s proposals on any party other than the undertaker and the effects of any operation or development undertaken by any party other than the undertaker;

(g) whether this Order provides any alternative powers by which the undertaker could reasonably achieve the development outcome sought in a manner that would reduce or eliminate adverse effects on any party other than the undertaker;

(h) the effectiveness, cost and reasonableness of proposals for mitigation arising from any party; and

(i) any other important and relevant consideration.

(6) The seat of the arbitration is to be England and Wales.

(7) The arbitration is to be governed by both the Arbitration Act 1996[^f00041] and the requirements set out in sub-paragraphs (3) to (5) or as agreed between the parties. Should the parties be unable to agree on the rules for arbitration, any party may, upon giving written notice to other parties, apply to the President of the Institution of Civil Engineers for any decision on rules that may be necessary.

(1) Asset	(2) Asset Owner	(3) Crossing Number/Location
Land subject to lease in favour of M&G Fuels	M&G Solid Fuels LLP	Plot 60 on the land plans
A1085	Redcar and Cleveland Borough Council	MC1on the conveyor route plans
Hot Metal Rail and Bridge	Tata Steel UK Limited and Sahaviriya Steel Industries UK Limited	MC3 on the conveyor route plans
SSI Road and Bridge	Tata Steel UK Limited and Sahaviriya Steel Industries UK Limited	MC6 on the conveyor route plans
Land and assets owned/occupied by Tata Steel UK Limited	Tata Steel UK Limited	Plot 37a on the land plans

PART 2 — FOR THE PROTECTION OF REDCAR BULK TERMINAL

22

The following provisions of this Part of this Schedule have effect for the benefit of any owner of the Redcar Bulk Terminal.

23

(1) The undertaker must not commence the construction of any part of Works No. 4 within the conveyor route (northern) or any part of Works No. 5 which are to be situated within or above plots 9 or 10 identified on the land plans without first agreeing with the owners of the Redcar Bulk Terminal (and afterwards implementing) protocols to—

(a) govern access for the undertaker and the owners of the Redcar Bulk Terminal to the area shown on Document 3.16 which protocol must have due regard to proper security and operational requirements of the Redcar Bulk Terminal and the undertaker;

(b) ensure that the construction and use of the authorised development within plots 9 and 10 incorporates the appropriate health, safety and security requirements of the owner or occupier of Redcar Bulk Terminal and the undertaker; and

(c) locate, protect and (to the extent required to ensure continuation of supply) replace, relocate and reconnect any services or service media within plots 9 and 10.

(2) In the event that the undertaker considers that the owner of the Redcar Bulk Terminal has unreasonably withheld its agreement under sub-paragraph (1), the undertaker may refer the matter to arbitration for determination under article 40 (arbitration) and paragraph 21.

SCHEDULE 11 — FOR THE PROTECTION OF THE TEES PORT AUTHORITY

Interpretation

1

In this Schedule—

“document” includes plans, sections and drawings;

“environmental document” means—the environmental statement prepared for the purposes of the application for this Order together with any supplementary environmental statement or other document submitted under the provisions of this Order and prepared by way of clarification or amplification of the environmental statement; andany other document containing environmental information provided by the undertaker to the Secretary of State or the Tees Port Authority for the purposes of any tidal works approval under article 17 (tidal works not to be executed without approval of Secretary of State) or this Schedule;

“the quay” means the quay comprised in the authorised development;

“relevant TPA limits of jurisdiction” means the limits of the jurisdiction of the Tees Port Authority under the Teesport Acts and Orders 1966 to 2008[^f00042] but excluding any land above the level of high water which is owned or occupied by the undertaker;

“the river” means the River Tees; and

“tidal areas” means areas on, under or over tidal waters and tidal land below the level of high water in the river.

General

2

(1) The provisions of this Schedule, unless otherwise agreed in writing between the undertaker and the Tees Port Authority, have effect for the protection of the Tees Port Authority.

(2) For the purposes of this Schedule, the definition of “tidal work” is taken to include—

(a) any projection over the river by booms, cranes and similar plant or machinery; and

(b) any authorised development or operation or activity authorised by this Order which affects the river or any functions of the Tees Port Authority as harbour authority or which is carried out within the relevant TPA limits of jurisdiction.

Location of tidal works

3

Regardless of article 4 (parameters of authorised development), no part of Works No. 2 or any other permanent tidal work authorised by this Order may be constructed in tidal waters which lie outside the line marked “river frontage line” shown on drawing number PB1586-SK123 revision 2 (Document 3.9B).

Tidal works: consultation and approval

4

(1) Before—

(a) submitting any plans and sections for any tidal work to the Secretary of State for approval under article 17 (tidal works not to be executed without approval of Secretary of State);

(b) seeking approval from the local planning authority for any alteration of the drawings under paragraph 4 of Schedule 2 (requirements) that affects the area below the level of high water;

(c) commencing any construction of a tidal work where approval of the Secretary of State under article 17 is not required;

(d) commencing any maintenance of a tidal work which may affect the river or any functions of the Tees Port Authority as harbour authority or which is carried out within the relevant TPA limits of jurisdiction; or

(e) commencing any dredging operation,

the undertaker must submit to the Tees Port Authority plans and sections of the tidal work, programmes and method statements relating to the construction or maintenance of the tidal work or dredging operation or altered drawings.

(2) The undertaker must provide the Tees Port Authority with such further information relating to the plans, sections, programmes and method statements or drawings submitted under sub-paragraph (1) as the Tees Port Authority may reasonably require provided that any request for such information must be received by the undertaker within 14 days from the day on which the information is submitted under sub-paragraph (1).

(3) The undertaker must consult the Tees Port Authority, and provide the Tees Port Authority with a reasonable opportunity to comment, on the plans and sections of a tidal work submitted under sub-paragraph (1)(a) or drawings submitted under sub-paragraph (1)(b).

(4) No construction of a tidal work referred to in sub-paragraph (1)(c) may be carried out except in accordance with such plans and sections as are approved in writing by the Tees Port Authority or determined under paragraph 28.

(5) No construction or maintenance of a tidal work or dredging operation referred to in sub-paragraph (1) (a), (c), (d) or (e) may be carried out except in accordance with such programmes and method statements as are approved in writing by the Tees Port Authority or determined under paragraph 28 unless in the case of the dredging operation that operation is being carried out by the Tees Port Authority.

(6) Before submitting for approval, agreement or otherwise as provided by this Order any document specified in columns (1) and (2) of Table 1, the undertaker must submit a copy to the Tees Port Authority for approval of the matters specified in column (3) of the Table and must consult the Tees Port Authority on such parts of the remainder of each such document which may affect the river or any functions of the Tees Port Authority as harbour authority or is within the relevant TPA limits of jurisdiction .

(1)Document	(2)Provision of Order	(3)Provision requiring Tees Port Authority approval
Written scheme so far as it relates to details of quay structure, conveyors and related infrastructure within Works Nos 1, 2 and 4	Schedule 2, paragraph 2	None
Construction Environmental Management Plan	Schedule 2, paragraph 6	None
Timetable of works and operations dealing with matters referred to in sub-paragraph (5)	Schedule 5, paragraph 11	The whole document
Detailed method statements dealing with matters referred to in sub-paragraph (5)	Schedule 5, paragraph 17	The whole statements
Details of work area and access routes within the relevant TPA limits of jurisdiction	Schedule 5, paragraph 18	The work area and access routes so far as they are in an area below the level of water
Capital dredge and disposal strategy	Schedule 5, paragraph 34	The whole strategy

(7) No application for a document specified in the Table, under the provision of the Order specified in relation to the document for which approval of the Tees Port Authority is required, may be made until the Tees Port Authority has approved the document in writing or approval is given by a determination under paragraph 28.

(8) When submitting to the Secretary of State, the MMO or the local planning authority, as the case may be, any application for approval of a document specified in sub-paragraph (1) or (6) on which the Tees Port Authority has been consulted under this paragraph, the undertaker must also forward to that person or body any comments received from the Tees Port Authority in response to the consultation.

(9) Any approval of the Tees Port Authority required under this paragraph must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as the Tees Port Authority may make for the protection of—

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

(b) the use of the river by itself as harbour authority, licenced users under licences granted by PD Teesport under the 1966 Act or other river users; or

(10) Requirements made under sub-paragraph (9) may include conditions as to—

(a) the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the tidal work; and

(b) the expiry of the approval if the undertaker does not commence construction of the tidal work approved within a prescribed period.

(11) Subject to sub-paragraph (13), any approval required under this paragraph is deemed to have been given if it is neither given nor refused within—

(a) 28 days of the specified day; or

(b) where an opinion has been provided by the Environment Agency under sub-paragraph (12) within 42 days of the specified day, 7 days from the day that an opinion has been provided; or

(c) where no opinion has been provided by the Environment Agency under sub-paragraph (12) within 42 days of the specified day, 7 days from the expiry of that 42 day period,

whichever is the later.

(12) Before making a decision on any approval required under this paragraph, the Tees Port Authority must take into account any opinion on plans and sections that has been provided to it by the Environment Agency within 42 days of the specified day.

(13) An approval of the Tees Port Authority under this paragraph is not deemed to have been unreasonably withheld if approval within the period identified in sub-paragraph (11) has not been given pending the outcome of any consultation on the approval in question that the Tees Port Authority is obliged to carry out in the proper exercise of its functions as a harbour authority provided that in commencing or during the course of such consultation, the Tees Port Authority has acted with all due expedition.

(14) In this paragraph “the specified day” means, in relation to any matter for which approval is required—

(a) the day on which particulars of that matter are submitted to the Tees Port Authority under sub-paragraph (1) or (6); or

(b) the day on which the undertaker provides the Tees Port Authority with all such particulars of the matter as have been reasonably requested by the Tees Port Authority under sub-paragraph (2),

whichever is later.

(15) Whenever the undertaker provides the Secretary of State with an environmental document which relates to works which may affect the area below the level of high water it must at the same time send a copy to the Tees Port Authority.

5

If the Secretary of State, the MMO or the local planning authority requires the alteration of any document which has previously been approved by the Tees Port Authority or upon which the Tees Port Authority have been consulted by the undertaker, the undertaker must inform the Authority.

6

On receipt of any approval or agreement by the Secretary of State, the MMO or the local planning authority (as the case may be) of any of the documents specified in paragraph 4(1) or (6) or any conditions or restrictions imposed by that body, the undertaker must send a copy to the Tees Port Authority.

Construction of tidal works

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(1) The undertaker must give to the harbour master not less than 7 days’ prior written notice of its intention to enter upon a tidal area for any purpose relating to the construction or maintenance of the authorised development and must provide such details as the harbour master may reasonably require recording how access to the authorised development is to be gained and what exclusion areas are required for the authorised development.

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