Legalize / United Kingdom / Statutory-Instrument

The Silvertown Tunnel Order 2018

Type Statutory-Instrument

Publication 2018-05-10

Last updated 2019-02-22

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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Borough (1)	Title of Order (2)	Revocations or Variations (3)
Royal Borough of Greenwich	Traffic Management Order The Greenwich (Waiting and Loading Restriction) Order 2007 No. 28	Orders to be varied Substitute all references to A102 Blackwall Tunnel southern approach with A12 Blackwall Tunnel Southern Approach. Substitute all references to A102 Blackwall Tunnel with A12 Blackwall Tunnel. Substitute all references to A102 Blackwall Tunnel northern approach with A12 Blackwall Tunnel northern approach.
	Traffic Management Order The Greenwich (Prescribed Routes) (No. 132) Traffic Order 2007	Orders to be varied Substitute all references to A102 Blackwall Tunnel southern approach with A12 Blackwall Tunnel Southern Approach. Substitute all references to A102 Blackwall Tunnel with A12 Blackwall Tunnel. Substitute all references to A102 Blackwall Tunnel northern approach with A12 Blackwall Tunnel northern approach.
	Traffic Management Order The Greenwich (Prescribed Routes) (No. 141) Traffic Order 2009	Orders to be varied Substitute all references to A102 Blackwall Tunnel southern approach with A12 Blackwall Tunnel Southern Approach. Substitute all references to A102 Blackwall Tunnel with A12 Blackwall Tunnel. Substitute all references to A102 Blackwall Tunnel northern approach with A12 Blackwall Tunnel northern approach.
Royal Borough of Greenwich, London Borough of Newham, and London Borough of Tower Hamlets	GLA 2005 No. 016 The A12/A102 GLA Road (Blackwall Tunnel northern approach Road, Blackwall Tunnel southern approach Road and Northbound Blackwall Tunnel, London Boroughs of Greenwich and Tower Hamlets) (Restricted Road) Order 2005
	GLA 2006 No. 044 The A12/A102 GLA Road (Blackwall Tunnel northern approach Road, Blackwall Tunnel southern approach Road and the Southbound Blackwall Tunnel, London Boroughs of Greenwich and Tower Hamlets) (Variable Speed Limits) Order 2006
	GLA 2006 No. 403 The A102 GLA Road (Blackwall Tunnel southern approach Road, London Borough of Greenwich) (Prohibition of Traffic and Pedestrians) Order 2006
	GLA 2011 No. 279 The A102 GLA Side Road (Tunnel Avenue, London Borough of Greenwich) Banned Turn Experimental Traffic Order 2011
	GLA 2009 No. 152 The A12 and 102 GLA Roads (Blackwall Tunnel and Blackwall Tunnel Approaches, Greenwich and Tower Hamlets) Prescribed Routes Traffic Order 2009
	GLA 2011 No. 452 The Blackwall Tunnel (No. 1) Traffic Order 1982 A102 GLA Road (London Borough of Greenwich) Experimental Variation Order 2011
	GLA 2007 No. 417 The GLA Roads and GLA Side Roads (Greenwich) Red Route (Clearway) Consolidation Traffic Order 2007

SCHEDULE 12 — DEEMED MARINE LICENCE

PART 1 — GENERAL

Interpretation

1

In this licence—

“the 2008 Act” means the Planning Act 2008;

“the 2009 Act” means the Marine and Coastal Access Act 2009;

“the Archaeological Written Scheme of Investigation” means the Archaeological Written Scheme of Investigation approved under paragraph 5(3)(b) of Schedule 2 (requirements) to the Order where it relates to any part of the river Thames;

“the authorised development” means the development described in Schedule 1 (authorised development) to the Order, and any other development within the meaning of section 32 (meaning of “development”) of the 2008 Act that is authorised by the Order;

“business day” means a day other than a Saturday or Sunday, which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971 ;

“commence” means beginning to carry out any part of a licensed activity and “commenced” and “commencement” is to be construed accordingly;

“condition” means a condition in Part 2 of this licence and references in this licence to numbered conditions are to the conditions with those numbers in Part 2;

“the licence holder” means Transport for London and any transferee pursuant to article 59 of the Order;

“licensed activity” means any of the activities specified in paragraph 3 of this licence;

“the MMO” means the Marine Management Organisation;

“the Order” means the Silvertown Tunnel Order 2018 ;

“the River” means so much of the river Thames, the Thames estuary, rivers, streams, creeks, watercourses and the sea as is within the Port of London Authority's limits as described in paragraph 2 of Schedule 1 to the Port of London Act 1968; and

“Work No. 20A” means the work of that description in Schedule 1 (authorised development) to the Order.

Contacts

2

(1) Except where otherwise indicated, the main point of contact with the MMO and the address for email and postal returns and correspondence are as follows—

(a) Marine Management Organisation, Marine Licensing Team, Lancaster House, Hampshire Court, Newcastle upon Tyne, NE4 7YH; Tel. – 0300 123 1032, Fax – 0191 376 2681, Email – marine.consents@marinemanagement.org.uk;

(b) Marine Management Organisation, MMO Lowestoft, Pakefield Road, Lowestoft, Suffolk, NR33 0HT; Tel. – 01502 573 149 or 01502 572 769, Email – lowestoft@marinemanagement.org.uk

(2) The contact details for the MMO Marine Pollution Response Team are Tel. (during office hours) – 0300 200 2024, Tel. (outside office hours) – 07770 977 825 or 0845 051 8486 and Email – dispersants@marinemanagement.org.uk, or such replacement contact details notified to the licence holder in writing by the MMO.

Details of licensed marine activities

3

(1) Subject to the licence conditions in Part 2, this licence authorises the licence holder (and any agent, contractor or subcontractor acting on their behalf) to carry out any licensable marine activities under section 66(1) (licensable marine activities) of the 2009 Act which—

(a) form part of, or are related to, the authorised development (including any maintenance dredging activities); and

(b) are not exempt from requiring a marine licence by virtue of any provision made under section 74 (exemptions specified by order) of the 2009 Act.

(2) The grid coordinates for the area of the river Thames within which the licence holder may carry out licensed activities are specified below and more particularly shown on the works plans—

Point reference	Latitude (DMS)	Longitude (DMS)
1	51.502086	0.011706655
2	51.501788	0.011218071
3	51.501519	0.010658691
4	51.501260	0.010056521
5	51.501261	0.00999893
6	51.501036	0.009441541
7	51.501100	0.009372319
8	51.500936	0.009019267
9	51.500165	0.009878706
10	51.500580	0.010876711
11	51.500875	0.01148046
12	51.500973	0.011585596
13	51.501295	0.012190542
14	51.501477	0.012587593
15	51.501782	0.013148567
16	51.502141	0.013726324
17	51.502528	0.014247686
18	51.502925	0.014683064
19	51.503485	0.014001723
20	51.504437	0.013035025
21	51.504757	0.013236467
22	51.504800	0.013368036
23	51.504926	0.013359183
24	51.504991	0.013203569
25	51.504949	0.013071999
26	51.505236	0.012047159
27	51.506233	0.010577994
28	51.505490	0.009320454
29	51.504395	0.010742076
30	51.502644	0.012711054
31	51.502373	0.012252441

PART 2 — CONDITIONS APPLYING TO CONSTRUCTION ACTIVITIES

Benthic ecology monitoring and mitigation

4

(1) The licence holder must submit a benthic ecology monitoring and mitigation plan, for approval by the MMO, prior to the commencement of the first licensed activity.

(2) The monitoring and mitigation plan submitted for approval must include—

(a) the detailed methodology and extent of pre-construction benthic ecology surveys to be carried out;

(b) the detailed methodology and extent of benthic ecology surveys to be carried out prior to the removal of any temporary structures constructed as part of Work No. 20A;

(d) details of how any necessary mitigation will be identified following the carrying out of the surveys and implemented.

(3) The licence holder must not commence the first licensed activity until the MMO has approved in writing the submitted monitoring and mitigation plan.

(4) The licence holder must—

(a) not commence the first licensed activity until it has carried out the pre-construction surveys and implemented any pre-construction mitigation measures required by the monitoring and mitigation plan approved under sub-paragraph (3);

(b) not remove any temporary structures constructed as part of Work No. 20A until it has carried out the surveys and implemented any mitigation measures required by the monitoring and mitigation plan approved under sub-paragraph (3) in relation to the removal of those structures; and

(c) following completion of construction of the authorised development (including the removal of any temporary structures constructed as part of Work No. 20A), carry out the post-construction surveys and implement any post-construction mitigation measures required by the monitoring and mitigation plan approved under sub-paragraph (3), unless otherwise agreed in writing by the MMO.

Construction method statement

5

(1) The licence holder must submit a method statement, for approval by the MMO following consultation with the Environment Agency, at least 6 weeks prior to the commencement of any licensed activity.

(2) The method statement must include the following details—

(a) the detailed construction methodology to be employed by the licence holder in carrying out the licensed activity; and

(b) a programme of works including timings and durations, method of delivery of material to site and plant to be used during the works.

(3) The licence holder must not commence the licensed activity until the MMO has approved in writing the submitted method statement.

(4) The licensed activity must be carried out in accordance with the approved method statement, unless otherwise agreed in writing by the MMO.

Marine pollution contingency plan

6

(1) The licence holder must submit a marine pollution contingency plan, for approval by the MMO, at least 6 weeks prior to the commencement of any licensed activity.

(2) The marine pollution contingency plan must set out the licence holder's assessment of the likely risks which could arise as a result of a spill or collision during construction and operation of the authorised development and the methods and procedures the licence holder intends to put in place to address them.

(3) The MMO must consult the Environment Agency and the PLA on the marine pollution contingency plan before approving it.

(4) The licence holder must not commence the licensed activity until the MMO has approved in writing the submitted marine pollution contingency plan.

(5) The licensed activity must be carried out in accordance with the approved marine pollution contingency plan, unless otherwise agreed in writing by the MMO.

Concrete and cement

7

The licence holder must not discharge waste concrete slurry or wash water from concrete or cement into the River. The licence holder must site concrete and cement mixing and washing areas at least 10 metres from the River or surface water drain to minimise the risk of run off entering the River.

Coatings and treatments

8

The licence holder must ensure that any coatings and any treatments are suitable for use in the River and are used in accordance with either guidelines approved by the Health and Safety Executive or the Environment Agency.

Spills, etc.

9

The licence holder must—

(a) store, handle, transport and use fuels, lubricants, chemicals and other substances so as to prevent releases into the marine environment, including bunding of 110% of the total volume of all reservoirs and containers;

(b) report any spill of oil, fuel or chemicals into the marine area to the MMO Marine Pollution Response Team within 12 hours of the spill occurring; and

Percussive piling

10

Where a licensed activity involves percussive piling the licence holder must commence piling activities using soft-start techniques for at least 20 minutes to ensure an incremental increase in pile power until full operational power is achieved. Should piling cease for at least 10 minutes the soft-start procedures must be repeated.

Archaeological written scheme of investigation

11

(1) At the same time as the licence holder submits the first method statement to the MMO for approval under condition 5, the licence holder must supply the MMO with, for information purposes, the Archaeological Written Scheme of Investigation.

(2) At the same time as the licence holder submits any subsequent method statement to the MMO for approval under condition 5, the licence holder must supply the MMO with, for information purposes, the Archaeological Written Scheme of Investigation if it has been amended from any previous version supplied to the MMO under this paragraph.

(3) The licence holder must implement and act in accordance with the Archaeological Written Scheme of Investigation.

Removal of temporary structures, etc.

12

(1) Subject to sub-paragraph (2), the licence holder must remove all equipment, temporary structures, waste and debris associated with the licensed activities from the River within 6 weeks of the completion of those activities, unless otherwise agreed in writing by the MMO.

(2) The licence holder must remove the temporary structures constructed under Work No. 20A as soon as reasonably practicable after the use of that work in connection with the construction of the authorised development has ceased, unless otherwise agreed in writing by the MMO.

PART 3 — PROCEDURE FOR THE DISCHARGE OF CONDITIONS

Meaning of “application”

13

In this Part, “application” means a submission by the licence holder for approval of a construction method statement under condition 5 or a marine pollution contingency plan under condition 6.

Further information regarding application

14

(1) The MMO may request in writing such further information from the licence holder as is necessary to enable the MMO to consider the application.

(2) If the MMO does not make a request under sub-paragraph (1) within 20 business days of the day immediately following that on which the application is received by the MMO, it is deemed to have sufficient information to consider the application and is not entitled to request further information after this date without the prior agreement of the licence holder.

Determination of application

15

(1) In determining the application the MMO may have regard to—

(a) the application and any supporting information or documentation;

(b) any further information provided by the licence holder in accordance with paragraph 14; and

(2) Having considered the application the MMO must—

(a) grant the application unconditionally;

(b) grant the application subject to the conditions as the MMO thinks fit; or

Notice of determination

16

(1) Subject to sub-paragraph (2) or (3), the MMO must give notice to the licence holder of the determination of the application within 30 business days of the day immediately following that on which the application is received by the MMO.

(2) Where the MMO has made a request under condition 14, the MMO must give notice to the licence holder of the determination of the application no later than 30 business days of the day immediately following that on which the further information is received by the MMO.

(3) The MMO and the licence holder may agree in writing a longer period of time for the provision by the MMO of a notice under sub-paragraph (1) such period to be no more than 60 days from the day immediately following that on which the application is received.

(4) Where the MMO refuses the application the refusal notice must state the reasons for the refusal.

(5) Where notice is not given by the MMO in accordance with sub-paragraph (1) or (2) the application is deemed to have been refused.

Arbitration

17

(1) Subject to condition 16(2), any difference under any provision of this licence must , unless otherwise agreed between the MMO and the licence holder, be referred to and settled by a single arbitrator to be agreed between the MMO and the licence holder or, failing agreement, to be appointed on the application of either the MMO or the licence holder (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

(2) Nothing in condition 16(1) or 16(2) is to be taken, or to operate so as to, fetter or prejudice the statutory rights, powers, discretions or responsibilities of the MMO.

SCHEDULE 13 — PROTECTIVE PROVISIONS

PART 1 — FOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

1

The provisions of this Part of this Schedule have effect for the protection of statutory undertakers unless otherwise agreed in writing between TfL and the statutory undertaker in question.

2

In this Part of this Schedule—

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

“apparatus” means—in the case of a statutory undertaker within paragraph (a) of the definition of that term, electric lines or electrical plant (as defined in the Electricity Act 1989 ), belonging to or maintained by the statutory undertaker for the purposes of electricity supply;in the case of a statutory undertaker within paragraph (b) of the definition of that term, any mains, pipes or other apparatus belonging to or maintained by the statutory undertaker for the purposes of gas supply;in the case of a statutory undertaker within paragraph (c) of the definition of that term—mains, pipes or other water apparatus belonging to or maintained by the statutory undertaker for the purposes of water supply; andmains, pipes or other water apparatus that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe at future date) of the Water Industry Act 1991 ; andin the case of a sewerage undertaker—any drain or works vested in the sewerage undertaker under the Water Industry Act 1991; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreement to adopt sewers, drains or sewage disposal works at future date) of that Act ,and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works,and in each case includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties;

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

“statutory undertaker” means—any licence holder within the meaning of Part 1 of the Electricity Act 1989;a gas transporter within the meaning of Part 1 of the Gas Act 1986 ;a water undertaker within the meaning of the Water Industry Act 1991; anda sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991,for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

3

This Part of this Schedule does not apply to apparatus in respect of which the relations between TfL and the statutory undertaker are regulated by Part 3 (street works in England and Wales) of the 1991 Act.

4

(1) Regardless of the temporary stopping up, alteration or diversion of streets under the powers conferred by article 10 (temporary stopping up and restriction of use of streets), a statutory undertaker is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the temporary stopping up, alteration or diversion was in that street.

(2) Where any street is stopped up under article 9 (permanent stopping up of streets and private means of access), any statutory undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and TfL must grant to the statutory undertaker legal easements reasonably satisfactory to the statutory undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of TfL or of the statutory undertaker to require the removal of that apparatus under paragraph 6 or to carry out works under paragraph 8.

5

Despite any provision in this Order or anything shown on the land plans, TfL must not acquire any apparatus otherwise than by agreement.

6

(1) If, in the exercise of the powers conferred by this Order, TfL acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the statutory undertaker's apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a statutory undertaker to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the statutory undertaker in question in accordance with sub-paragraphs (2) to (8).

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, TfL requires the removal of any apparatus placed in that land, TfL must give to the statutory undertaker in question 28 days' written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a statutory undertaker reasonably needs to remove any of its apparatus) TfL must, subject to sub-paragraph (3), afford to the statutory undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of TfL and subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of TfL, or TfL is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the statutory undertaker in question must, on receipt of a written notice to that effect from TfL, as soon as reasonably practicable use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) The obligation imposed on the statutory undertaker under sub-paragraph (3) does not extend to the exercise by the statutory undertaker of any power to acquire any land or rights in land by compulsory purchase order.

(5) Any alternative apparatus to be constructed in land of TfL under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the statutory undertaker in question and TfL or in default of agreement settled by arbitration in accordance with article 68 (arbitration).

(6) The statutory undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 68 (arbitration), and after the grant to the statutory undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by TfL to be removed under the provisions of this Part of this Schedule.

(7) Regardless of anything in sub-paragraph (6), if TfL gives notice in writing to the statutory undertaker in question that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land controlled by TfL, that work, instead of being executed by the statutory undertaker, may be executed by TfL, with the prior written consent of the statutory undertaker (which must not be unreasonably withheld or delayed and is to be subject to any such conditions as are reasonable and proper to protect the apparatus) in accordance with plans and in a position agreed between the statutory undertaker and TfL or, in default of agreement, determined by arbitration in accordance with article 68 (arbitration), without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the statutory undertaker.

(8) In carrying out any work under sub-paragraph (7) TfL must comply with all statutory obligations which would have been applicable had the works been carried out by the statutory undertaker.

(9) Nothing in sub-paragraph (7) authorises TfL to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 600 millimetres of the apparatus.

7

(1) Where, in accordance with the provisions of this Part of this Schedule, TfL affords to a statutory undertaker facilities and rights for the construction and maintenance in land of TfL 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 TfL and the statutory undertaker in question or in default of agreement settled by arbitration in accordance with article 68 (arbitration).

(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in land of TfL, the arbitrator must—

(a) give effect to all reasonable requirements of TfL for ensuring the safety and efficient operation of the tunnels and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of TfL; and

(b) so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in, under, over or above the tunnels for which the alternative apparatus is to be substituted.

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

8

(1) Not less than 28 days before starting the execution of any works authorised by this Order that will or may affect any apparatus the removal of which has not been required by TfL under paragraph 6(2), TfL must submit to the statutory undertaker in question a plan, section and description of the works to be executed.

(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the statutory undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the statutory undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by a statutory undertaker under sub-paragraph (2) must be made within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If a statutory undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by TfL, reasonably requires the removal of any apparatus and gives written notice to TfL of that requirement, paragraphs 1 to 7 apply as if the removal of the apparatus had been required by TfL under paragraph 6(2).

(5) Nothing in this paragraph precludes TfL from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) TfL is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the statutory undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

(7) Nothing in sub-paragraph (6) entitles TfL to carry out works to any apparatus but, upon receipt of notice from TfL, the statutory undertaker must proceed to carry out such works as may be required without unnecessary delay.

9

(1) Subject to the following provisions of this paragraph, TfL must repay to the statutory undertaker in question the proper and reasonable expenses incurred by that statutory undertaker in, or in connection with the inspection, removal, relaying, replacing, alteration or protection of any apparatus under any provision of this Part of this Schedule (including any costs reasonably incurred or compensation properly paid in connection with the acquisition of facilities and rights or exercise of statutory powers for such apparatus) including the cutting off of any apparatus from any other apparatus or the making safe of any redundant apparatus as a consequence of the exercise by TfL of any power under this Order and the surveying of any land or works, the inspection, superintendence and monitoring of works or the removal of any temporary works reasonably necessary in consequence of the exercise of TfL of any power under this Order.

(2) The value of any apparatus removed under this Part of this Schedule is to be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.

(3) If in accordance with this Part of this Schedule—

(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by TfL or, in default of agreement, is not determined by arbitration in accordance with article 68 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the statutory undertaker in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

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

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

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

10

(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, maintenance or failure of any of the works referred to in paragraph 6(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a statutory undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any statutory undertaker, TfL must—

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

(b) indemnify the statutory undertaker against all reasonable claims, penalties, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from, or reasonably and properly incurred by, the statutory undertaker,

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

(2) Nothing in sub-paragraph (1) imposes any liability on TfL with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of a statutory undertaker, its officers, servants, contractors or agents.

(3) A statutory undertaker must give TfL reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of TfL which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

11

If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed TfL must provide such alternative means of access to that apparatus as will enable the statutory undertaker to maintain or use the apparatus no less effectively than was possible before the obstruction.

PART 2 — FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

12

(1) For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between TfL and the operator.

(2) In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003 ;

“conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system are to be construed in accordance with paragraph 1(3A) (interpretation of code) of that code;

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 (electronic communications, networks and services) of Part 2 of the 2003 Act ;

“electronic communications code network” means—so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 (application of the electronic communications code) of the 2003 Act; andan electronic communications network which the Secretary of State is providing or proposing to provide;

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act; and

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

13

The exercise of the powers of article 31 (statutory undertakers) is subject to paragraph 23 of Schedule 2 (undertaker's works) to the Telecommunications Act 1984 .

14

(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—

(a) any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or other property of an operator; or

(b) there is any interruption in the supply of the service provided by an operator,

TfL must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on TfL with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

(3) The operator must give TfL reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of TfL which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between TfL and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 68 (arbitration).

15

This Part of this Schedule does not apply to—

(a) any apparatus in respect of which the relations between TfL and an operator are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act; or

(b) any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

PART 3 — FOR THE PROTECTION OF NATIONAL GRID

Application

16

The following provisions have effect for the protection of National Grid unless otherwise agreed in writing between TfL and National Grid.

Interpretation

17

In this Part of this Schedule—

“alternative apparatus” means appropriate alternative apparatus to enable National Grid to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means—electric lines or electrical plant as defined in the Electricity Act 1989 , belonging to or maintained by National Grid; andmains, pipes or other apparatus belonging to or maintained by National Grid for the purposes of gas supply,together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of National Grid 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 development” has the same meaning as in article 2 of this Order and (unless otherwise specified) for the purposes of this Part of this Schedule includes the use and maintenance of the authorised development;

“functions” includes powers and duties;

“ground mitigation scheme” means a scheme approved by National Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

“ground monitoring scheme” means a scheme for monitoring ground subsidence which sets out the apparatus which is to be subject to such monitoring, the extent of land to be monitored, the manner in which ground levels are to be monitored, the timescales of any monitoring activities and the extent of ground subsidence event which, if exceeded, requires TfL to submit for National Grid's approval a ground mitigation scheme;

“ground subsidence event” means any ground subsidence which National Grid and TfL agree is attributable to the authorised development (or in default of agreement is settled by arbitration in accordance with article 68 (arbitration) of the Order to be attributable to the authorised development) and is identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

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

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

“National Grid” means either—National Grid Electricity Transmission PLC (Company No. 2366977) whose registered office is at 1-3 Strand, London, WC2N 5EH or any of its entities or successor entities; orNational Grid Gas PLC (Company No. 200600) whose registered office is at 1-3 Strand, London, WC2N 5EH or any of its entities or successor entities;

“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; and

“specified work” means so much of any of the authorised development or activities authorised by this Order and undertaken in association with the authorised development—that will or may be situated 15 metres (measured in any direction) within, or which may adversely affect, any apparatus the removal of which has not been required by TfL under paragraph 21(2) or otherwise; orthat includes any of the activities that are referred to in paragraph 8 of T/SP/SSW/22 (National Grid's policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW/22”).

18

This Part of this Schedule does not apply to apparatus in respect of which the relations between TfL and National Grid are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of National Grid in stopped up streets

19

(1) Without limitation on the scope of any other protection afforded to National Grid elsewhere in the Order, where any street is stopped up under article 9 (permanent stopping up of streets), if National Grid has any apparatus in the street or accessed via that street National Grid is entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and TfL must grant to National Grid, or procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street or highway.

(2) Regardless of the temporary stopping up, alteration or diversion of any street under the powers of article 10 (temporary stopping up and restriction of use of streets), National Grid is at liberty at all times to take all necessary access across any stopped up, altered or diverted street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up, alteration or diversion was in that street.

Acquisition of land

20

(1) This Order does not authorise the acquisition or extinguishment of land or rights in land or override any interest in land owned by National Grid that is required for the retention or maintenance of any retained apparatus except with National Grid's agreement (such agreement not to be unreasonably withheld or delayed).

(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised development (or in such other timeframe as may be agreed between National Grid and TfL) that are subject to the requirements of this Part of this Schedule that will 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 National Grid and TfL in respect of any apparatus laid or erected in land belonging to or secured by TfL, TfL must as National Grid reasonably requires enter into such deeds of easement or consent upon such terms and conditions as may be agreed between National Grid and TfL acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid, and it is the responsibility of TfL 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 development.

(3) Where there is any inconsistency or duplication between the provisions set out in this Part of 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 Part of this Schedule prevail.

(4) No agreement or consent granted by National Grid under any other provision of this Part of this Schedule constitutes agreement under sub-paragraph (1).

Removal of apparatus

21

(1) If, in the exercise of the agreement reached in accordance with paragraph 20 or in any other authorised manner, TfL acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of 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 National Grid in accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any works comprised in the authorised development in, on, under or over any land purchased, held, appropriated or used under this Order, TfL 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) TfL must, subject to sub-paragraph (3), afford to National Grid to their satisfaction (taking into account paragraph 22(1)) the necessary facilities and rights for—

(a) the construction of alternative apparatus in other land of, or land secured by, TfL; 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, TfL, or TfL 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 TfL, 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 save 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, TfL under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Grid and TfL.

(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-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by TfL to be removed under the provisions of this Part of this Schedule.

(6) Where there is any inconsistency or duplication between the provisions set out in this Part of 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 as of right or other use in relation to the apparatus then the provisions in this Part of this Schedule prevail.

Facilities and rights for alternative apparatus

22

(1) Where, in accordance with the provisions of this Part of this Schedule, TfL affords to National Grid facilities and rights for the construction and maintenance and protection in land of TfL 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 TfL and National Grid 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 agreed by National Grid.

(2) If the facilities and rights to be afforded by TfL and agreed with National Grid under sub-paragraph (1) above 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, the matter must be referred to arbitration and the arbitrator must make such provision for the payment of compensation by TfL to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of National Grid as Gas Undertaker

23

(1) Not less than 56 days before the commencement of any works authorised by this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by TfL under paragraph 21(2) or otherwise, TfL must submit to National Grid a plan.

(2) In relation to specified works, or any works that (wherever situated) impose any load directly upon any apparatus, the plan to be submitted to National Grid under sub-paragraph (1) must show—

(a) the exact position of the works;

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

(d) the position of all apparatus;

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

(f) details of any ground monitoring scheme if required.

(3) TfL must not commence any works to which sub-paragraph (2) applies until National Grid has given written approval of the plan so submitted.

(4) Any approval of National Grid required under sub-paragraph (3)—

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

(b) must not be unreasonably withheld.

(5) In relation to a work to which sub-paragraph (1) and (2) applies, National Grid may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Works executed under sub-paragraph (1) or (2) must be executed only in accordance with the plan, submitted under sub-paragraph (1) or (2), as amended from time to time by agreement between TfL and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (4), (5), (7) 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.

(7) Where National Grid requires protective works to be carried out either themselves or by TfL (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 pursuant to this paragraph, must be carried out to National Grid's satisfaction prior to the commencement of any work to which sub-paragraph (1) or (2) applies and National Grid must give 56 days' notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (2) (except in an emergency).

(8) If National Grid in accordance with sub-paragraph (5) or (7) and in consequence of the works proposed by TfL, reasonably requires the removal of any apparatus and gives written notice to TfL of that requirement, paragraphs 16 to 18 and 21 to 22 apply as if the removal of the apparatus had been required by TfL under paragraph 21(2).

(9) Nothing in this paragraph precludes TfL from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

(10) TfL 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-paragraph (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and

(b) comply with sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under this Order comply with National Grid's policies for safe working in proximity to gas apparatus enshrined in Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22 and the Health and Safety Executive's guidance note “Avoiding Danger from underground services HSG47”.

(12) As soon as reasonably practicable after any ground subsidence event, TfL must implement an appropriate ground mitigation scheme.

Retained apparatus: protection of National Grid as Electricity Undertaker

24

(1) Not less than 56 days before the commencement of any specified work that does not require the removal of apparatus under paragraph 21(2) (removal of apparatus) TfL must submit to National Grid a plan and seek from National Grid details of the underground extent of their electricity tower foundations.

(2) The plan to be submitted under sub-paragraph (1) must show—

(a) the exact position of the specified work;

(b) the level at which the specified work is proposed to be constructed or renewed;

(c) the manner of the construction or renewal of the specified work including details of excavation and positioning of plant;

(d) the position of all apparatus;

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

(f) details of any ground monitoring scheme if required.

(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 include a method statement which must in addition to the matters set out in sub-paragraph (2)—

(a) describe details of any cable trench design including route, dimensions, clearance to pylon foundations;

(b) demonstrate that pylon foundations will not be affected prior to, during and post construction;

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

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

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

(g) assess earth rise potential if reasonably required by National Grid's engineers; and

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

(4) TfL must not commence any works requiring the submission of a plan under sub-paragraph (1) until National Grid has given written approval of the plan so submitted.

(5) Any approval of National Grid required in relation to a plan submitted under sub-paragraph (1)—

(a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (6) or (8); and

(b) must not be unreasonably withheld.

(6) In relation to a work requiring the submission of a plan under sub-paragraph (1), National Grid may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works requiring the submission of a plan under sub-paragraph (1) must be executed only in accordance with the plan, as amended from time to time by agreement between TfL and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (5), (6), (8) or (9) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid is to be entitled to watch and inspect the execution of those works.

(8) Where National Grid require any protective works to be carried out either by themselves or by TfL (whether of a temporary or permanent nature) such protective works must be carried out to National Grid's satisfaction prior to the commencement of works requiring the submission of a plan under sub-paragraph (1) and National Grid must give 56 days' notice of such works from the date of submission of the plan (except in an emergency).

(9) If National Grid in accordance with sub-paragraph (6) or (8) and in consequence of the works proposed by TfL, reasonably requires the removal of any apparatus and gives written notice to TfL of that requirement, paragraphs 16 to 18 and 21 to 22 apply as if the removal of the apparatus had been required by TfL under paragraph 21(2).

(10) Nothing in this paragraph precludes TfL from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, a new plan, 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) TfL 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 a plan of those works and must—

(a) comply with sub-paragraph (6), (7) and (8) insofar 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 specified works TfL must comply with National Grid's policies for development near or over headlines enshrined in ENA TA 43-8 and the Health and Safety Executive's guidance note 6 “Avoidance of Danger from Overhead Lines”.

(13) As soon as reasonably practicable after any ground subsidence event, TfL must implement an appropriate ground mitigation scheme.

Protective works to buildings

25

TfL must not exercise the powers conferred by article 15 (protective work to buildings), so as to obstruct or render less convenient the access to any apparatus without the written consent of National Grid.

Expenses

26

(1) Subject to the following provisions of this paragraph, TfL must repay to National Grid on demand all charges, costs and expenses reasonably incurred or in the case of sub-paragraph (a) compensation properly paid 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 such works as are referred to in this Part of this Schedule including without limitation—

(a) in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that National Grid elects to use compulsory purchase powers to acquire any necessary rights under paragraph 21 sub-paragraph (3) all costs incurred as a result of such action;

(b) carrying out any diversion work or providing alternative apparatus;

(d) the approval of plans;

(e) the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;

(f) the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule.

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

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

(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,

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 TfL or in default of agreement settled by arbitration in accordance with article 68 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to National Grid by virtue of sub-paragraph (1) must be reduced by the amount of that excess except where it is not possible in the circumstances to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case the full costs must be borne by TfL.

(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 must 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) must, 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, be reduced by the amount which represents that benefit.

Indemnity

27

(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of TfL or in consequence of any act or default of TfL (or any person employed or authorised by him) in the course of carrying out such works (including without limitation works carried out by TfL under this Part of this Schedule or any subsidence resulting from any of these works), any material 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, TfL 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.

(2) The fact that any act or thing may have been done by National Grid on behalf of TfL or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid as a consequence of the authorised development or under its supervision does not (unless sub-paragraph (3) applies) excuse TfL from liability under the provisions of sub-paragraph (1) unless National Grid 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 materially accord with the approved plan or as otherwise agreed between TfL and National Grid.

(3) Nothing in sub-paragraph (1) imposes any liability on TfL 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 development or works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of TfL with the benefit of this Order pursuant to section 156 (benefit of order granting development consent) of the 2008 Act or under article 59 (transfer of benefit of order, etc.) of this Order subject to the proviso that once such works become apparatus (“new apparatus”), any works yet to be executed and not falling within this sub-paragraph are subject to the full terms of this Part of this Schedule including this paragraph 27 in respect of such new apparatus.

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

(5) National Grid must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph 27 applies. If requested to do so by TfL, National Grid must provide an explanation of how the claim has been minimised. TfL is only liable under this paragraph 27 for claims reasonably incurred by National Grid.

Enactments and agreements

28

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

Co-operation

29

National Grid and TfL must use their best endeavours to co-ordinate with each other on the timing and method of execution of any works carried out under this Order or this Part of this Schedule 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 the other party's operations.

Access

30

If in consequence of the agreement reached in accordance with paragraph 20 or the powers granted under this Order the access to any apparatus is materially obstructed, TfL 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

31

Any difference or dispute arising between TfL and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between TfL and National Grid, be determined by arbitration in accordance with article 68 (arbitration).

PART 4 — FOR THE PROTECTION OF THE PORT OF LONDON AUTHORITY

32

The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between TfL and the PLA, for the protection of the PLA in relation to construction of the authorised development and, within any maintenance period defined in article 30(14) (temporary use of land for maintaining the authorised development), any maintenance of any part of the authorised development.

Definitions

33

In this Part of this Schedule—

“construction” includes execution, placing, altering, replacing, relaying, renewal and works of maintenance within a maintenance period defined in article 30(14) (temporary use of land for maintaining the authorised development) and, in its application to a specified work which includes or comprises any operation, means the carrying out of that operation, and “construct” and “constructed” are to be construed accordingly;

“the PLA” means the Port of London Authority;

“plans” includes navigational risk assessments, plans, sections, elevations, drawings, specifications, programmes, construction methods and descriptions including, where applicable, such relevant hydraulic information about the river Thames as may be reasonably requested by the PLA;

“specified function” means any function of TfL under this Order (except any function under article 19 (compulsory acquisition of land), 22 (compulsory acquisition of rights) or 27 (acquisition of subsoil, etc., only)) the exercise of which may affect the river Thames or any function of the PLA;

“specified work” means any part of the authorised development (which for this purpose includes the removal of any part of the authorised development), which—is, may be, or takes place in, on, under or over the surface of land below mean high water level forming part of the river Thames; ormay affect the river Thames or any function of the PLA,including any projection over the river Thames by any authorised work or any plant or machinery; and

“tunnelling works” means so much of Work No. 1 as is carried out wholly under the bed of the river Thames.

Approval of detailed design

34

(1) TfL must not commence the construction of any specified work or the exercise of any specified function until plans of the work or function have been approved in writing by the PLA, but the PLA's approval is not required under this paragraph for any tunnelling works forming part of a specified work.

(2) Where the PLA approves a suspension of the public right of navigation under article 17 (works in the river Thames: conditions), TfL is not required to obtain the PLA's approval under this paragraph for any specified function to be exercised in respect of that suspension of the public right of navigation, including under article 29 (temporary use of land for carrying out the authorised development) or 30 (temporary use of land for maintaining the authorised development).

(3) TfL must submit to the PLA plans of the specified work or specified function and such further particulars as the PLA may, within 20 business days starting with the day on which plans are submitted under this sub-paragraph, reasonably require, and the particulars so supplied are to provide all information necessary to enable the PLA to determine whether approval should be given and, if so, whether conditions should be imposed.

(4) Any approval of the PLA required under this paragraph must not be unreasonably withheld but may be given subject to such reasonable modifications, terms and conditions as the PLA may make for the protection of—

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

(b) the use of its land, or the river Thames, for the purposes of performing its functions; or

(5) Requirements made under sub-paragraph (4) may include conditions as to—

(a) the proposed location of any temporary work and its dimensions or the location where the specified function is proposed to be exercised;

(b) the programming of temporary works or the exercise of the specified function;

(c) the removal of any temporary work and the undertaking by TfL of any related work or operation that the PLA considers to be necessary for the purpose of removing or preventing any obstruction to navigation;

(d) the relocation, provision and maintenance of works, moorings, apparatus and equipment necessitated by the specified work or specified function; and

(e) the expiry of the approval if TfL does not commence construction or carrying out of the approved specified work or exercise of the specified function within a prescribed period.

(6) Subject to sub-paragraph (7), an application for approval under this paragraph is deemed to have been refused if it is neither given nor refused within 30 business days of the paragraph 34 specified day.

(7) An approval of the PLA under this paragraph is not deemed to have been unreasonably withheld if approval within the time limited by sub-paragraph (6) has not been given pending the outcome of any consultation on the approval in question that the PLA is obliged to carry out in the proper exercise of its functions.

(8) TfL must carry out all operations for the construction of any specified work or the specified function without unnecessary delay and to the reasonable satisfaction of the PLA so that traffic in, or the flow or regime of, the river Thames, and the exercise of the PLA's functions, do not suffer more interference than is reasonably practicable. The PLA is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey those operations and TfL must provide all reasonable facilities to enable that inspection and survey to take place.

(9) In this paragraph “the paragraph 34 specified day” means, in relation to any specified work or specified function—

(a) the day on which plans and sections of that work are submitted to the PLA under sub-paragraph (1); or

(b) the day on which TfL provides the PLA with all further particulars of the work that have been requested by the PLA under that sub-paragraph,

whichever is the later.

Design of the tunnelling works

35

(1) TfL must undertake the detailed design and construction of the tunnelling works to ensure that, as far as is reasonably foreseeable, the navigable channel of the river Thames can be maintained by the PLA to a depth of at least 5.80 metres below chart datum.

(2) When complying with sub-paragraph (1) TfL must allow for potential ‘over-dredge’ of 0.5 metres attributable to standard dredging methodology.

(3) Prior to commencing construction of the tunnelling works and as soon as reasonably practicable after they each become available, TfL must provide to the PLA the following documents—

(a) an Approval in Principle, or similar, demonstrating that the design requirement has been incorporated into the detailed design of the tunnelling works;

(b) a Design Certificate demonstrating that the detailed design of the tunnelling works has satisfied the design requirement; and

(c) a Check Certificate, completed by an independent person, demonstrating that the detailed design of the tunnelling works has satisfied the design requirement.

(4) TfL must supply to the PLA—

(a) any of the drawings referred to in either of the certificates specified in sub-paragraphs (3)(b) and (3)(c); and

(b) such other information relating to any of the documents provided under sub-paragraph (2) or (3)(a) as the PLA may reasonable require,

upon request made by the PLA within 10 business days of the day on which the PLA receives the document that gives rise to the request.

(5) If, following receipt of any of the documents supplied under sub-paragraphs (3) and (4), the PLA is not reasonably satisfied that the design requirement will be met, it may within 20 business days of the paragraph 35 specified day, notify TfL that the PLA is in dispute with TfL and accordingly refer the matter to arbitration under paragraph 52 to review the proposed detailed design of the tunnelling works so far as it concerns the design requirement.

(6) In this paragraph—

(a) “Approval in Principle”, “Check Certificate” and “Design Certificate” have the same meaning as in the Design Manual for Roads and Bridges Volume 1 Section 1 Part 1 BD2/12;

(b) “the design requirement” means the detailed design requirement specified in sub-paragraphs (1) and (2);

(c) “the navigable channel” means Regions 2 and 4 as defined in article 52 (restrictions on other works in the river Thames);

(d) “the paragraph 35 specified day” means—

(i) the day on which the documents referred to in sub-paragraph (3) are provided to the PLA under that sub-paragraph; or

(ii) the day on which TfL provides the PLA with all drawings and further information that has been requested by the PLA under sub-paragraph (4),

whichever is the later.

As built drawings

36

As soon as reasonably practicable following the completion of the construction of the authorised development, TfL must provide to the PLA as built drawings of any specified works (but not including any work constructed or placed within the tunnels) in a form and scale to be agreed between TfL and the PLA to show the position of those works in relation to the river Thames.

Discharges, etc.

37

(1) TfL must not without the consent of the PLA exercise the powers conferred by article 14 (discharge of water) so as to—

(a) deposit in or allow to fall or be washed into the river Thames any gravel, soil or other material;

(b) discharge or allow to escape either directly or indirectly into the river Thames any offensive or injurious matter in suspension or otherwise; or

(2) Any consent of the PLA under this paragraph must not be unreasonably withheld but may be given subject to such terms and conditions as the PLA may reasonably impose.

(3) Any consent under this paragraph is deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 35 days of the day on which the request for consent is submitted under sub-paragraph (1).

38

TfL must not, in exercise of the powers conferred by article 14 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river Thames unless such damage or interference is approved as a specified work under this Order or is otherwise approved in writing by the PLA.

Navigational lights, buoys, etc.

39

(1) TfL must, at or near a specified work or a location where a specified function is being exercised, exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the PLA may from time to time reasonably require.

(2) The PLA must give TfL not less than 20 business days' written notice of a requirement under sub-paragraph (1) except in the case of emergency when the PLA must give such notice as is reasonably practicable.

Directions as to lights

40

TfL must comply with any reasonable directions issued from time to time by the Harbour Master with regard to the lighting of—

(a) a specified work; or

(b) the carrying out of a specified function or the use of apparatus for the purposes of such a function,

or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river Thames.

Removal, etc. of the PLA's moorings and buoys

41

(1) Subject to sub-paragraph (2), if by reason of the construction of any specified work or the exercise of any specified function it is reasonably necessary for the PLA to incur the cost of—

(a) temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the PLA;

(b) laying down and removing substituted moorings or buoys; or

not being costs which it would have incurred for any other reason, TfL must pay the costs reasonably so incurred by the PLA.

(2) The PLA must give to TfL not less than 20 business days' notice of its intention to incur such costs, and take into account any representations which TfL may make in response to the notice within 10 business days of the receipt of the notice.

Removal of temporary works

42

(1) On completion of the construction of the whole or any part of a permanent specified work, TfL must—

(a) as soon as reasonably practicable after such completion seek approval under paragraph 34 for the removal required by sub-paragraph (b); and

(b) as soon as reasonably practicable after the grant of that approval under paragraph 34 remove—

(i) in the case of completion of part, any temporary tidal work (other than a residual structure) carried out only for the purposes of that part of the permanent specified work;

(ii) on completion of all the specified works, any remaining temporary tidal work (other than a residual structure); and

(iii) in either case, any materials, plant and equipment used for such construction,

and make good the site to the reasonable satisfaction of the PLA.

(2) For the purposes of TfL making good the site in accordance with sub-paragraph (1)(b), the PLA may require that—

(a) any residual structure is cut off by TfL at such level below the bed of the river Thames as the PLA may reasonably direct; and

(b) TfL takes such other steps to make the residual structure safe as the PLA may reasonably direct.

(3) As soon as reasonably practicable after TfL has complied with the PLA's requirements under sub-paragraphs (1) and (2) in relation to any residual structure, the PLA will grant TfL a works licence for that structure under section 66 (licensing of works) of the 1968 Act, and the terms of the licence are to reflect such requirements.

(4) For the avoidance of doubt, article 3(1)(h) (disapplication of legislation, etc.) will not apply to a residual structure which will, accordingly, be subject to sections 66 to 75 (lands above mean high water level) of the 1968 Act.

(5) In this paragraph—

“residual structure” means any part of a temporary tidal work that the PLA agrees cannot reasonably be removed by TfL on completion of the construction of the permanent specified works; and

“tidal work” means any specified work any part of which is, or may be, or, in, under or over the surface of land below mean high water level forming part of the river Thames.

Protective action

43

(1) If any specified work or the exercise of any specified function—

(a) is constructed or carried out otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given under paragraph 34(4); or

(b) during construction or carrying out gives rise to sedimentation, scouring, currents or wave action, which would be materially detrimental to traffic in, or the flow or regime of, the river Thames,

then the PLA may by notice in writing require TfL at TfL's own expense to comply with the remedial requirements specified in the notice.

(2) The requirements that may be specified in a notice given under sub-paragraph (1) are—

(a) in the case of a specified work or specified function to which sub-paragraph (1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—

(i) this Part of this Schedule; or

(ii) the condition that has been breached; or

(b) in any case within sub-paragraph (1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation, scouring, currents or wave action so far as required by the needs of traffic in, or the flow or regime of, the river Thames.

(3) If TfL does not comply with a notice under sub-paragraph (1), or is unable to do so then the PLA may in writing require TfL to—

(a) remove, alter or pull down the specified work, and where the specified work is removed to restore the site of that work (to such extent as the PLA reasonably requires) to its former condition; or

(b) take such other action as the PLA may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.

(4) If a specified work gives rise to environmental impacts over and above those anticipated by any environmental document, TfL must, in compliance with its duties under any enactment, take such action as is necessary to prevent or mitigate those environmental impacts and in so doing must consult and seek to agree the necessary measures with the PLA.

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