The Abergelli Power Gas Fired Generating Station Order 2019

(1) Area	(2) Street subject to temporary prohibition or restriction of use	(3) Extent of temporary prohibition or restriction of use of streets
City and County of Swansea Council	Rhyd–y–pandy road	Prohibition/restriction: between points marked A and Bon the rights of way, streets and access plan, being approximately 440 metres.
City and County of Swansea Council	Rhyd–y–pandy road	Purpose of the Prohibition/restriction: temporary restrictions of the use of the street, including the use of traffic management measures (erection of temporary barriers and stop/go board traffic control or two way traffic lights) and temporary speed restrictions in order to facilitate development necessary for the authorised development that takes place within the Order land.
City and County of Swansea Council	Rhyd–y–pandy road	Prohibition/restriction: between the points marked C and D on the rights of way, streets and access plan, being approximately 139 metres.
City and County of Swansea Council	Rhyd–y–pandy road	Purpose of the Prohibition/Restriction: Temporary closure(s) of part of the street temporary closures and restrictions of the use of the street, including the use of traffic management measures (erection of temporary barriers and stop/go board traffic control or two way traffic lights) and temporary speed restrictions in order to facilitate development necessary for the authorised development that takes place within the Order land.
City and County of Swansea	Public footpath LC35A	Prohibition/restriction: between the points marked E and F on the rights of way, streets and access plan, being approximately 35 metres.
City and County of Swansea	Public footpath LC35A	Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the footpath and restriction of the use of the footpath at any time in order to facilitate development necessary for the authorised development that takes place within the Order land.
City and County of Swansea	Private road/track (unnamed) running north–east from Abergelli farm to Rhyd–y–pandy road	Prohibition/restriction: between the points marked G and H on the rights of way, streets and access plan, being approximately 50 metres.
City and County of Swansea	Private road/track (unnamed) running north–east from Abergelli farm to Rhyd–y–pandy road	Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction of the use of the street at any time in order to facilitate development necessary for the authorised development that takes place within the Order land.
City and County of Swansea	Public footpath LC35B	Prohibition/restriction: between the points marked G and Hon the rights of way, streets and access plan, being approximately 50 metres.
City and County of Swansea	Public footpath LC35B	Purpose of the Prohibition/Restriction:Temporary closure(s) of all or part of the footpath and restriction of the use of the footpath at any time in order to facilitate development necessary for the authorised development that takes place within the Order land.
City and County of Swansea	Private road/track (unnamed)	Prohibition/restriction: between the points marked G and I on the rights of way, streets and access plan, being approximately 57 metres.
City and County of Swansea	Private road/track (unnamed)	Purpose of the Prohibition/Restriction:Temporary closure(s) of all or part of the street and restriction of the use of the street at any time in order to facilitate development necessary for the authorised development that takes place within the Order land.
City and County of Swansea	Private track running south–east from Abergelli farm (known as “the gallops”)	Prohibition/restriction: between the points marked J and M on the rights of way, streets and access plan, being approximately 402 metres.
City and County of Swansea	Private track running south–east from Abergelli farm (known as “the gallops”)	Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the street and restriction of the use of the street at any time in order to facilitate the construction of numbered works 1, 2, 3 and 5.
City and County of Swansea	Public Footpath LC117	Prohibition/restriction: between the points marked P and Q on the rights of way, streets and access plan, being approximately 76 metres.
City and County of Swansea	Public Footpath LC117	Purpose of the Prohibition/Restriction:Temporary closure(s) of all or part of the footpath and restriction of the use of the footpath at any time in order to facilitate the construction of numbered works 1, 2, 3 and 5.
City and County of Swansea	Private access road (unnamed) leading from B4489 to Swansea North substation and Felindre gas compressor station	Prohibition/restriction: between the points marked R and S on the rights of way, streets and access plan, being approximately 39 metres.
City and County of Swansea	Private access road (unnamed) leading from B4489 to Swansea North substation and Felindre gas compressor station	Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the road and restriction of the use of the road in order to facilitate development necessary for the authorised development that takes place within the Order land.
City and County of Swansea	Private access road (unnamed) leading from B4489 to Swansea North substation and adjacent Gas Compressor Station	Prohibition/restriction: between the points marked T and W on the rights of way, streets and access plan, being approximately 852 metres.
City and County of Swansea	Private access road (unnamed) leading from B4489 to Swansea North substation and adjacent Gas Compressor Station	Purpose of the Prohibition/Restriction:Temporary closure(s) of all or part of the street and restriction of the use of the street at any time in order to facilitate the construction of numbered works 1, 2, 3 and 5.
City and County of Swansea	Public Footpath LC34	Prohibition/restriction: between the points marked U and V on the rights of way, streets and access plan, being approximately 35 metres.
City and County of Swansea	Public Footpath LC34	Purpose of the Prohibition/Restriction: Temporary closure(s) of all or part of the footpath and restriction of the use of the footpath at any time in order to facilitate the construction of numbered works 1, 2, 3 and 5.
City and County of Swansea	B4489	Prohibition/restriction: between the points marked Z and AA on the rights of way, streets and access plan, being approximately 129 metres.
City and County of Swansea	B4489	Purpose of the Prohibition/restriction: temporary restrictions of the use of the street, including the use of traffic management measures (erection of temporary barriers and stop/go board traffic control or two way traffic lights) and temporary speed restrictions in order to facilitate the construction of numbered works 1, 2, 3 and 5.

SCHEDULE 7 — STREETS TO BE STOPPED UP

(1) Area	(2) Street to be stopped up	(3) Extent of stopping up
City and County of Swansea	Private road/track	From the point marked K to the point marked L on the rights of way, streets and access plan, being approximately 278 metres.
City and County of Swansea	Private road/tracks running south–east from Abergelli farm (known as “the gallops”)	From the point marked M to the point marked N on the rights of way, streets and access plan, being approximately 355 metres.

SCHEDULE 8 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS AND IMPOSITION OF NEW RESTRICTIONS

Compensation enactments

1

The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2

• (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973[^f00029] has effect subject to the modifications set out in sub-paragraph (2).

• (2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 5(b)—

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

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

3

• (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1961 has effect subject to the modification set out in sub-paragraph (2).

• (2) For section 5A(5A) (relevant valuation date) of the 1961 Act, substitute—

(5A) If— (a) the acquiring authority enters on land for the purpose of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 8 of Schedule 8 to the Abergelli Power Gas Fired Generating Station Order 2019; (b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 10 of Schedule 8 to the Abergelli Gas Fired Generating Station Order 2019) to acquire an interest in the land; and (c) the acquiring authority enters on and takes possession of that land, the authority is deemed for the purposes of subsection 3(a) to have entered on that land where it entered on that land for the purpose of exercising that right.

Application of Part 1 of the 1965 Act

4

Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 26 (modification of Part 1 of the 1965 Act)) to the acquisition of land under article 18 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article 22 (compulsory acquisition of rights)—

• (a) with the modifications specified in paragraph 5; and

• (b) with such other modifications as may be necessary.

5

The modifications referred to in paragraph 4(a) are as follows—

• (a) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—

• (i) the right acquired or to be acquired, or the restrictive covenant imposed or to be imposed; or

• (ii) the land over which the right is or is to be exercisable, or the restrictive covenant is or is to be enforceable.

• (b) For section 7 of the 1965 Act (measure of compensation in case of severance) there is substituted the following section—

(7) In assessing the compensation to be paid by the acquiring authority under this Act, regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or the imposition of the covenant but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

6

The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

• (a) section 9(4) (failure by owners to convey);

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity);

• (c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

• (d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are so modified as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

7

Section 11 (powers of entry) of the 1965 Act is modified as to secure that, where the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to compulsory acquisition under article 18), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A (powers of entry: further notices of entry), 11B (counter–notice requiring possession to be taken on specified date), 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

8

Section 20 of the 1965 Act (protection for interests of tenants at will, etc.) applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

9

Section 22 of the 1965 Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) as modified by article 26(4) is also modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

10

For schedule 2A to the 1965 Act substitute—

SCHEDULE 2A (1) (1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 24 (application of the Compulsory Purchase (Vesting Declarations) Act 1981) of the Abergelli Power Gas Fired Generating Station Order 2019 in respect of the land to which the notice to treat relates. (2 Article 25(3) (acquisition of subsoil only) of the Abergelli Power Gas Fired Generating Station Order 2019 which excludes the acquisition of subsoil only from this Schedule, applies. (2) In this Schedule, “house”, except in paragraph 10, includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter–notice requiring the authority to purchase the owner’s interest in the house, building or factory. (4) A counter–notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter–notice, the acquiring authority must decide whether to— (a) withdraw the notice to treat, (b) accept the counter–notice, or (c) refer the counter–notice to the Upper Tribunal. (6) The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter–notice is served (“the decision period”). (7) If the authority decide to refer the counter–notice to the Upper Tribunal they must do so within the decision period. (8) If the authority do not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the authority serve notice of a decision to accept the counter–notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (10) On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making its determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right or the imposition of the covenant, (b) the use to be made of the right or covenant proposed to be acquired or imposed, and (c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take. (13) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (14) (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraw the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice. (3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 9 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Location	(2) Number of land shown on land plans	(3) Purpose for which temporary possession may be taken
Land at Abergelli Fach Farm, Felindre, Swansea	4A	Temporary use to facilitate construction of other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	5A	Temporary use to facilitate construction of other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	5B	Temporary use to facilitate construction of other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	6A	Temporary use to facilitate construction of other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	6B	Temporary use to facilitate construction of other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	7A	Temporary use to facilitate construction of other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	7B	Temporary use to facilitate construction for numbered works 1, 2, 3 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	7C	Temporary use to facilitate construction for numbered works 1, 2, 3 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land at Abergelli Fach Farm, Felindre, Swansea	11B	Temporary use to facilitate construction for numbered works 1, 2, 3 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of Maes-Eglwys Farm, Felindre, Swansea	13A	Temporary use to facilitate construction for numbered works 1, 2, 3 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of Maes-Eglwys Farm, Felindre, Swansea	13B	Temporary use to facilitate construction for numbered works 2 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of Swansea North Substation, Felindre, Swansea	16A	Temporary use to facilitate construction for numbered works 2 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of disused historic access track to South of Gas Compressor Station, Felindre, Swansea	17A	Temporary use to facilitate construction for numbered works 2 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of disused historic access track to South of Gas Compressor Station, Felindre, Swansea	17B	Temporary use to facilitate construction for numbered works 2 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of Bryn Whilach Farm, Felindre, Swansea	18A	Temporary use to facilitate construction for numbered works 2 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of Bryn Whilach Farm, Felindre, Swansea	18B	Temporary use to facilitate construction for numbered works 2 and 5 and other development necessary for the authorised development that takes place within the Order land.
Land forming part of Swansea North Substation, Felindre, Swansea	19A	Temporary use to facilitate construction for numbered works 2 and 5 and other development necessary for the authorised development that takes place within the Order land.

SCHEDULE 10 — REMOVAL OF HEDGEROWS

(1) Location	(2) Identity of hedgerow shown on hedgerow plan	(3) Extent of hedgerow that may be removed
City and County of Swansea	Hedgerow B–B	Up to 210.47 metres
City and County of Swansea	Hedgerow C–C (to the extent within the Order Land)	Up to 10 metres

SCHEDULE 11[^f00030] — PROTECTIVE PROVISIONS

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

1

For the protection of the utility undertakers referred to in this part of this Schedule (save for National Grid which is protected by Part 3 of this Schedule, Western Power Distribution (South Wales) plc which is protected by Part 4 of this Schedule, Dŵr Cymru Cyfyngedig which is protected by Part 5 of this Schedule, Abergelli Solar Limited which is protected by Part 6 of this Schedule, and Wales and West Utilities Limited which is protected by Part 7 of this Schedule), the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertakers concerned.

2

In this part of this Schedule—

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

• “apparatus” means—in the case of an electricity undertaker, electric lines or electrical plant (as defined in the 1989 Act), belonging to or maintained by that utility undertaker;in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;in the case of a water undertaker—mains, pipes or other apparatus belonging to or maintained by that utility undertaker for the purposes of water supply; andany water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A of the Water Industry Act 1991[^f00031]);in the case of a sewerage undertaker—any drain or works vested in the utility 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) of that Act[^f00032] or an agreement to adopt made under section 104 of that Act,and includes a sludge main, disposal main (within the meaning of section 219 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 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

• “utility undertaker” means—any licence holder within the meaning of Part 1 of the 1989 Act;a gas transporter within the meaning of Part 1 of the 1986 Act;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 the undertaker and the utility undertaker are regulated by the provisions of Part 3 of the 1991 Act.

4

Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 11 (temporary prohibition or restriction of use of streets), a utility 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 prohibition or restriction was in that street.

5

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

6

• (1) If, in the exercise of the powers conferred by this Order, the undertaker 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 utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this part of this Schedule, and any right of a utility 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 utility undertaker in question in accordance with sub-paragraphs (2) to (7).

• (2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 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 utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker 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 the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the utility undertaker in question must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (4) Any alternative apparatus to be constructed in land of the undertaker under this part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

• (5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42, and after the grant to the utility 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 the undertaker to be removed under the provisions of this part of this Schedule.

• (6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility 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 the undertaker, that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.

• (7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filing around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

7

• (1) Where, in accordance with the provisions of this part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker 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 the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 42.

• (2) If the facilities and rights to be afforded by the undertaker 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 utility 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 the undertaker to that utility 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 in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 6(2), the undertaker must submit to the utility 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 utility undertaker for the alteration or otherwise for the protection of the apparatus, or for the securing access to it, and the utility undertaker is entitled to watch and inspect the execution of those works.

• (3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

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

• (5) Nothing in this paragraph precludes the undertaker 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) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the utility 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.

9

• (1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker the reasonable expenses incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 6(2).

• (2) There is to 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, 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,

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 42 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 utility undertaker in question by the 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 where such extension is required in consequence of the execution of any such works as are referred to in paragraph 6(2); 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 utility undertaker 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 the utility undertaker 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.

10

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction 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 utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—

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

• (b) make reasonable compensation to that utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker,

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

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

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

11

Nothing in this part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaking in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

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 the undertaker and the operator.

• (2) In this part of this Schedule—

• “the 2003 Act” means the Communications Act 2003[^f00033];

• “electronic communications apparatus” has the same meaning as set out in paragraph 5 of the electronic communications code;

• “the electronic communications code” has the same meaning as set out in sections 106 to 119 and Schedule 3A of the 2003 Act[^f00034];

• “infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7 of that code;

• “network” means—so much of a network or infrastructure system provided by an operator as is not excluded from the application of the electronic communications code by a direction under section 106(5) of the 2003 Act, anda network which the Secretary of State is providing or proposing to provide;

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

13

The exercise of the powers of article 30 (statutory undertakers) is subject to Part 10 of Schedule 3A of the 2003 Act.

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,

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

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

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

• (4) Any difference arising between the undertaker and the operator under this part of this Schedule must be referred to and settled by arbitration under article 42 (arbitration).

15

This part of this Schedule does not apply to—

• (a) any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 of the 1991 Act; or

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

16

Nothing in this part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 3 — FOR THE PROTECTION OF NATIONAL GRID

Application

17

For the protection of National Grid as referred to in this part 3 of Schedule 11 the following provisions shall, unless otherwise agreed in writing between the undertaker and National Grid, have effect.

Interpretation

18

In this Part of this Schedule—

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

• “apparatus” means—electric lines or electrical plant as defined in the 1989 Act, belonging to or maintained by National Grid;mains, 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 the Order or planning permission for the associated works that becomes operational apparatus of the undertaking for the purposes of transmission, distribution and/or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

• “associated works” means the works permitted pursuant to planning permissions reference 2018/2020/FUL and 2018/2020/FUL each granted by the City and County of Swansea on 6 December 2018;

• “authorised development” has the same meaning as in article 2 (interpretation) of this Order and (unless otherwise specified) for the purposes of this Schedule shall include the construction, use and maintenance of the authorised development and the associated works, including the construction of any works authorised by this Schedule;

• “commence” has the same meaning as in article 2 of the Order save that for the purposes only of this Part of Schedule 11 operations consisting environmental surveys and monitoring, investigations for the purpose of assessing ground conditions, remedial work in respect of any contamination or other adverse ground conditions and receipt and erection of construction plan and equipment shall be included within the meaning of commence and the term “commencement” is to be construed to have the same meaning;

• “deed of consent” means a deed of consent, crossing agreement, deed of variation or new deed of grant agreed between the parties acting reasonably in order to vary and/or replace existing easements, agreements, enactments and other such interest so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

• “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 which, if exceeded, shall require the undertaker to submit for National Grid’s approval a ground mitigation scheme;

• “ground subsidence event” means any ground subsidence 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 shall include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of the undertaking including construct, use, repair, alter, inspect, renew or remove the apparatus;

• “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;

• “National Grid” means either—National Grid Electricity Transmission PLC (company no. 2366977) whose registered office is at 1–3 Strand, London, WC2N 5EH; orNational Grid Gas PLC (company no. 200600) whose registered office is at 1-3 Strand, London, WC2N 5EH,as the context shall require;

• “specified works” means any part of the authorised development or any activities taken in association with the authorised development including associated works where such development, activities or works—will or may be situated over, under or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the promoter under paragraph 22(2) or otherwise;may in any way adversely affect any apparatus the removal of which has not been required by the promoter under paragraph 22(2) or otherwise; andincludes any activity that is referred to in paragraph 8 of T/SP/SSW/22 (the undertaker’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”);

19

Except for paragraphs 20 (apparatus of National Grid in streets subject to temporary prohibition or restriction), 24 (retained apparatus: protection), 25 (retained apparatus: protection), 26 (expenses) and 27 (indemnity) this Schedule does not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of National Grid in streets subject to temporary prohibition or restriction

20

• (1) Without prejudice to the generality of any other protection afforded to National Grid elsewhere in the Order, where any street is stopped up under article 12 (stopping up of streets), if National Grid has any apparatus in the street or accessed via that street National Grid will be entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the promoter will grant to National Grid, or will procure the granting to the National Grid of, legal easements reasonably satisfactory to the specified undertaker in respect of such apparatus and access to it prior to the stopping up of any such street or highway.

• (2) Notwithstanding the temporary prohibition or restriction under the powers of article 11 (temporary prohibition or restriction of use of streets), National Grid shall be at liberty at all times to take all necessary access across any such street and/or 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 prohibition or restriction was in that street.

Acquisition of land

21

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

• (2) Prior to the carrying out of any part of the authorised development or associated works (or in such other timeframe as may be agreed between the undertaker and National Grid) that is subject to the requirements of this Part of this Schedule that causes any conflict with or breach the terms of any existing easement and/or other legal or land interest of National Grid and/or affects the provisions of any existing enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between the undertaker and National Grid acting reasonably and which must be no less favourable on the whole to National Gird unless otherwise agreed by National Grid , and it must be the responsibility of the undertaker to procure and/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 part of the authorised development.

• (3) The undertaker and National Grid agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation and/or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation and/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 Schedule shall prevail.

• (4) Any agreement or consent granted by National Grid under paragraph 24 or 25 or any other paragraph of this Part of this Schedule, shall not be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

22

• (1) If, in the exercise of the agreement reached in accordance with paragraph 21 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this part of this Schedule and any right of National Grid to maintain that apparatus in that land shall 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 in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid 56 days’ advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker shall, subject to sub-paragraph (3), afford to National Grid to their satisfaction (taking into account paragraph 23(1) below) the necessary facilities and rights for—

• (a) the construction of alternative apparatus in other land of the undertaker; and

• (b) subsequently for the maintenance of that apparatus.

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Grid must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation shall 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 the undertaker under this part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between National Grid and the undertaker.

• (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 the undertaker to be removed under the provisions of this part of this Schedule.

Facilities and rights for alternative apparatus

23

• (1) Where, in accordance with the provisions of this part of this Schedule, the undertaker affords to National Grid facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the undertaker 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 the undertaker 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 in the matter shall be referred to arbitration under paragraph 31 and, the arbitrator shall make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case. In respect of the appointment of an arbitrator under this sub-paragraph (2), article 42 (arbitration) of the Order shall apply.

Retained apparatus: protection of National Grid as Gas Undertaker

24

• (1) Not less than 56 days before the commencement of any specified work, the undertaker must submit to National Grid a plan and, if reasonably required by National Grid a ground monitoring scheme in respect of those works, the plan to be submitted to National Grid shall show—

• (a) the exact position of the works;

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

• (c) the manner of their construction or renewal including details of excavation, positioning of plant etc.;

• (d) the position of all apparatus;

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

• (f) intended maintenance regimes; and

• (g) details of any ground monitoring scheme (if required in accordance with National Grid’s “Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22”.)

• (2) The undertaker must not commence any works to which sub-paragraph (1) and (8) applies until National Grid has given written approval of the plan so submitted.

• (3) Any approval of National Grid required under sub-paragraph (2)—

• (a) may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (4) or (6); and

• (b) must not be unreasonably withheld.

• (4) In relation to any work to which sub-paragraph (1) and (8) applies, National Grid may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (5) Works executed under sub-paragraph (1) or (8) shall be executed only in accordance with the plan, submitted under sub-paragraph (1) and (8) or as relevant sub-paragraph (3), as amended from time to time by agreement between the undertaker and National Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (4), (6) and/or (7) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid shall be entitled to watch and inspect the execution of those works.

• (6) Where National Grid requires protective works to be carried out either themselves or by the undertaker (whether of a temporary or permanent nature) such protective works shall be carried out to National Grid’s satisfaction prior to the commencement of any authorised development (or any relevant part thereof) to which sub-paragraph (1) 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 (8) (except in an emergency).

• (7) If National Grid in accordance with sub-paragraph (4) or (6) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs (1) to (2) and (5) to (6) shall apply as if the removal of the apparatus had been required by the undertaker under paragraph 22(2).

• (8) Nothing in this paragraph shall preclude the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works comprising the authorised development, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.

• (9) The undertaker shall not be required to comply with sub-paragraph (1) where, as part of any specified works, 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 shall—

• (a) comply with sub-paragraphs (4), (5) and (6) insofar as is reasonably practicable in the circumstances; and

• (b) comply with sub-paragraph (10) at all times.

• (10) At all times when carrying out any works authorised under the Order comply with 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/SSW22” and the Health and Safety Executive’s “HS(~G)47 Avoiding Danger from underground services”.

• (11) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker shall implement an appropriate ground mitigation scheme save that National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 26.

• (12) The plans submitted to National Grid by the undertaker pursuant to sub-paragraph (1) and (8) and/or paragraph 25(1) must be sent to plantprotection@nationalgrid.com and cc’d to spencer.jeffries@nationalgrid.com or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Retained apparatus: protection of National Grid as Electricity Undertaker

25