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The West Midlands Rail Freight Interchange Order 2020

Type Statutory-Instrument

Publication 2020-05-04

Last updated 2025-04-11

State In force

Department King's Printer of Acts of Parliament

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

(d) give reasons for the decision.

(5) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

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

Bond form

17

Form 1 as referred to in paragraph 9—

PART 3 — FOR THE PROTECTION OF THE LOCAL HIGHWAY AUTHORITY

Application

1

The provisions of this Part of this Schedule have effect, and apply to the county highway works, unless otherwise agreed in writing between the undertaker and the local highway authority.

Interpretation

2

(1) The terms used in this Schedule are as defined in article 2 (interpretation) of this Order save where inconsistent with sub-paragraph (2) which will prevail.

(2) In this Schedule—

“approval in principle” means the document, which records the agreed basis and criteria for the detailed design or assessment of a highway structure.

“as built information” means one electronic copy of the following information where applicable to the phase in question— as constructed drawings in both PDF AutoCAD DWG, MX and GIS formats for anything designed by the undertaker; list of suppliers and materials, test results and CCTV surveys; product data sheets, technical specifications for all materials used; as constructed information for any utilities discovered or moved during the works method statements for works carried out; in relation to road lighting, signs and traffic signals any information required by Series 1400 of the Specification for Highway Works; organisation and methods manuals for all products used; as constructed programme; health and safety file under the Construction (Design and Management) Regulations 2015; test results and records; and other such information as is readily available to the undertaker and may be reasonably required by the local highway authority to be used to update any relevant databases;

“bond” means a bond from a surety approved by the local highway authority for the bond sum drafted substantially as detailed in Form 2 contained in paragraph 15 of this Part of this Schedule;

“the bond sum” means the sum equal to 120% of the estimated costs of the carrying out of the phase of the county highway works concerned or such other sum agreed between the undertaker and the local highway authority;

“commuted sum” means such sum as calculated by the local highway authority in accordance with paragraph 7(2)(c) of this Part of this Schedule for any structure within each phase to be used to fund the future cost of maintaining such structures;

“contractor” means any contractor or sub-contractor appointed by the undertaker to carry out the county highway works or any phase of the county highway works and approved by the local highway authority in accordance with paragraph 3(2) of this Part of this Schedule;

“county highway works” means those parts of Works Nos. 4 and 7 coloured pink and yellow on the future highway maintenance plans the general arrangement of which is shown on the highway general arrangement plans and any ancillary works;

“defects period” means a period of twelve months from the date of the provisional certificate or longer period if agreed between the undertaker and the local highway authority in which all defects arising from the county highway works must be rectified by the undertaker;

“detailed design information” means the following drawings, specifications and other information which must be in accordance with the general arrangements shown on the highway general arrangements plans unless otherwise agreed between the local highway authority and the undertaker— site clearance details; boundary environmental and mitigation fencing; road restraint systems (vehicle and pedestrian) and supporting Road Restraint Risk Assessment Process assessment (RRRAP); drainage and ducting; earthworks including supporting geotechnical assessments required by HD22/08 and any required Strengthened Earthworks Appraisal Form certification; kerbs, footways and paved areas; traffic signs, signals and road markings; road lighting (including columns, brackets and bat hop-overs); electrical work for road lighting and traffic signs; highway structures and any required certification in accordance with BD2/12; agreed departures from Standard; landscaping; utilities diversions; and wildlife crossings, where relevant to the phase concerned;

“estimated costs” means the estimated costs in respect of each phase agreed in accordance with paragraph 5(1) of this Part of this Schedule;

“the excess” means the amount by which the county highway authority estimates that the costs referred to in paragraph 5(1) of this Part of this Schedule will exceed the estimated costs in accordance with paragraph 5(5)(b) of this Part of this Schedule;

“final certificate” means the certificate issued by the local highway authority to the undertaker for each phase to certify that the defects period has been completed to the satisfaction of the local highway authority;

“nominated persons” means the undertaker’s representatives or the contractors’ representatives on site during the carrying out of the county highway works;

“phase” means a phase of the county highway works which are to be carried out in separate phases such phases to be agreed with the local highway authority;

“programme of works” means a document setting out the sequence and timetabling of works for the phase in question;

“provisional certificate” means the certificate issued by the local highway authority to the undertaker for each phase of the county highway works to certify that in the opinion of the local highway authority the county highway works perform the function for which they were intended and are complete except for minor items not affecting safety;

“Road Safety Audit” means an audit carried out in accordance with the Road Safety Audit Standard;

“Road Safety Audit Standard” means the Design Manual for Roads and Bridges Standard GG119 or any successor document;

“satisfaction of the local highway authority” means the normal standards of the local highway authority in approving the design construction and/or rectification of defects of equivalent highway works applied elsewhere within their administrative area; and

“technical approval authority” means the organisation responsible for agreeing the approval in principle and subsequently accepting the relevant certificates for all highway structures; and

“utilities” means any pipes wires cables or equipment belonging to any person or body having power or consent to undertake street works under the 1991 Act.

Prior Approvals and Security

3

(1) The local highway authority is the technical approval authority in respect of all highway structures included in the county highway works, including the bridge which will carry the A5/A449 link road over the railway and canal, and the approval in principle for all such highway structures must be submitted to the local highway authority prior to any work commencing on the detailed design for any such highway structure.

(2) No work must commence on any phase until the detailed design information and a programme of works in respect of that phase has been submitted to and approved by the local highway authority.

(3) No works must commence on any phase other than by a contractor employed by the undertaker but first approved by the local highway authority.

(4) No work must commence on any phase until the undertaker has provided security for the carrying out of those works as provided for in paragraph 9 of this Part of this Schedule or some other form of security acceptable to the local highway authority.

(5) No work must commence on any phase until a Stage 2 Road Safety Audit has been carried out in respect of that phase and as necessary all issues raised incorporated into an amended design approved by the local highway authority or any relevant exceptions approved by the local highway authority.

(6) No work must commence on any phase until traffic management provisions have been agreed with the local highway authority.

(7) No work must commence on any phase until any land within that phase not within the public highway which will become public highway as a result of the authorised works is in the ownership of the undertaker.

Carrying out of works

4

(1) The undertaker must prior to commencement of each phase give the local highway authority 14 days’ notice in writing of the proposed date on which that phase will start.

(2) The undertaker must give the local highway authority 14 days’ notice of the road space required for the carrying out of each phase.

(3) Each phase must be carried out to the satisfaction of the local highway authority in accordance with—

(a) the relevant detailed design information and a programme of works approved pursuant to paragraph 3(1) of this Part of this Schedule or as subsequently varied by agreement between the undertaker and the local highway authority;

(b) the Design Manual for Roads and Bridges, the Specification for Highway Works (contained within the Manual of Contract Documents for Highways Works) and any amendment to or replacement thereof for the time being in force save to the extent that they are inconsistent with the Highway General Arrangement Plans (Documents 2.9A – 2.9K) or a departure from such standards has been approved by the local highway authority or such approvals or requirements of the local highway authority in paragraph 3 of this Part of this Schedule that need to be in place prior to the works being undertaken; and

(c) all aspects of the Construction (Design and Management) Regulations 2015 and in particular the undertaker must ensure that all client duties (as defined in those regulations) are satisfied.

(4) The undertaker must permit and require the contractor to permit at all reasonable times persons authorised by the local highway authority (whose identity must have been previously notified to the undertaker by the local highway authority) to gain access to the county highway works for the purposes of inspection and supervision and the undertaker must provide to the local highway authority contact details of the nominated persons with whom the local highway authority should liaise during the carrying out of the county highway works.

(5) The undertaker must permit attendance by representatives of the local highway authority at all pre-contract and progress meetings held in relation to each phase.

(6) The undertaker must provide shared working facilities including access to welfare and office facilities for the local highway authority for the duration of each phase including the defects period unless otherwise agreed.

(7) The undertaker must during the period in which the county highway works are carried out maintain the flow of traffic and safeguard the passage of pedestrians along any street on which the county highway works are being carried out and maintain, or provide temporary alternative for all accesses (including, for the avoidance of doubt, private accesses) affected thereby or in the vicinity thereof.

(8) At any time during the carrying out of the county highway works the nominated persons must act upon any reasonable request made by the local highway authority in relation to the carrying out of the county highway works as soon as practicable following such request being made to the nominated persons save to the extent that the contents of such request are inconsistent with or fall outside the contractor’s obligations under its contract with the undertaker or the undertakers’ obligations in this Order.

(9) If at any time the undertaker does not comply with any of the terms of this Part of this Schedule in respect of any phase having been given one month’s notice of an alleged breach by the local highway authority, then the undertaker must within 14 days of receipt of a demand by the local highway authority pay to the county highway authority the sum of the local highway authority’s proper estimate of completing that phase and any maintenance works which the undertaker would have been responsible for, and if the undertaker fails to pay the demand from the local highway authority within 14 days, the local highway authority is entitled to use the bond to meet the cost of completing the county highway works on behalf of the undertaker.

(10) Nothing in this Part of this Schedule prevents the local highway authority from carrying out any work or taking such action as deemed appropriate, without prior notice to the undertaker, in the event of an emergency or danger to the public. The cost to the local highway authority of such work or action being chargeable to and recoverable from the undertaker if the need for such action arises from the carrying out of the county highway works, and the local highway authority is entitled to utilise the bond should the undertaker fail to pay any costs arising from this sub-paragraph within 14 days of a demand for such costs being made by the local highway authority.

(11) The undertaker in carrying out each phase must at its own expense divert or protect all utilities as may be necessary to enable the local highway works to be properly carried out and all agreed alterations to existing services must be carried out to the satisfaction of the local highway authority acting reasonably.

Payments

5

(1) The undertaker must fund the whole of the cost of the county highway works and all costs incidental to the county highway works and must also pay to the local highway authority in respect of each phase in accordance with sub-paragraph (4) a sum equal to the whole of any costs and expenses which the local highway authority incur, including costs and expenses for using external staff and resources as well as costs and expenses of using in-house staff and resources in relation to the county highway works and arising out of them and their implementation including—

(a) the checking and approval of all design work carried out by or on behalf of the undertaker for that phase;

(b) costs in relation to agreeing the programme of works for that phase;

(d) all legal and administrative costs in relation to paragraphs (a) and (b),

together comprising “the estimated costs”.

(2) The undertaker must pay to the local highway authority upon demand the total costs properly and necessarily incurred by the local highway authority in undertaking any statutory procedure or preparing and bringing into force any traffic regulation order or orders necessary to carry out or for effectively implementing the county highway works provided that this paragraph does not apply to the making of any orders which duplicate orders contained in this Order.

(3) The undertaker and the local highway authority must agree a schedule of the estimated costs to be incurred pursuant to sub-paragraph (1) in respect of each phase prior to the commencement of that phase.

(4) The undertaker must make the payments referred to in sub-paragraph (1) as follows—

(a) the undertaker must pay a sum equal to the agreed estimated costs in respect of a phase prior to commencing that phase; and

(b) if at any time or times after the payment in respect of a phase referred to in sub-paragraph (4)(a) has become payable the local highway authority reasonably estimates that the costs in respect of that phase referred to in sub-paragraph (1) will exceed the estimated costs for that phase it may give notice to the undertaker of the amount by which it then reasonably estimates those costs will exceed the estimated costs (“the excess”) and the undertaker must pay to the local highway authority within 28 days of the date of that notice a sum equal to the excess.

(5) If the local highway authority has received the as built information within 91 days of the issue of the final certificate for the final phase of the A5/A449 link road pursuant to paragraph 7 of this Part of this Schedule, or for each phase pursuant to paragraph 8 of this Part of this Schedule, as the case may be, the local highway authority must give the undertaker a final account of the costs referred to in sub-paragraph (1) and within 28 days from the expiry of the 91-day period—

(a) if the account shows a further sum as due to the local highway authority the undertaker must pay to the local highway authority the sum shown due to it in that final account; and

(b) if the account shows that the payment or payments previously made have exceeded those costs the local highway authority must refund the difference to the undertaker.

(6) If any payment due under any of the provisions of this Part of this Schedule is not made on or before the date on which it falls due the party from whom it was due must at the same time as making the payment pay to the other party interest at 1% above the Base Rate of Lloyds Bank Plc for the period starting on the date upon which the payment fell due and ending with the date of payment of the sum on which interest is payable together with that interest.

Provisional certificate and defects period

6

(1) As soon as each phase has been completed and a Stage 3 Road Safety Audit for that phase has been carried out and any resulting recommendations complied with to the satisfaction of the local highway authority, the local highway authority must immediately issue a provisional certificate of completion in respect of that phase, such certificate not to be unreasonably withheld or delayed.

(2) The undertaker must at its own expense remedy any defects in that phase identified by the local highway authority to the satisfaction of the local highway authority acting reasonably during the defects period in respect of that phase.

(3) The undertaker must submit Stage 4(a) (12 months after completion of each phase) and Stage 4(b) (36 months after completion of each phase) Road Safety Audits as required by and in line with the timescales stipulated in the Road Safety Audit Standard. The undertaker must at its own expense comply with the findings of the Stage 4(a) and 4(b) Road Safety Audits to the satisfaction of the local highway authority acting reasonably.

(4) The local highway authority must approve the audit brief and CVs for all Road Safety Audits and exceptions to items raised if appropriate in accordance with the Road Safety Audit Standard.

Final certificate – except for A5/A449 link road

7

(1) The provisions of this paragraph apply to all the county highway works with the exception of the A5/A449 link road.

(2) The undertaker must apply to the local highway authority for the issue of the final certificate in respect of each phase of the works to which this paragraph applies at the expiration of the defects period in respect of that phase) or if later on the date on which any defects or damage arising from defects during the defects period have been made good to the satisfaction of the local highway authority acting reasonably, and when making such application the undertaker must submit to the local highway authority—

(a) as built information of the relevant phase; and

(b) a plan, for approval, clearly identifying the extent of any land which is to be highway maintainable at public expense by the local highway authority which must be in accordance with the detailed design information but reflecting the as built outcome.

(3) If the provisions of paragraph 7(2) of this Part of this Schedule are complied with to the satisfaction of the local highway authority, the local highway authority must immediately issue a final certificate for the phase concerned, such certificate not to be unreasonably withheld or delayed.

Final certificate – A5/A449 link road

8

(1) The provisions of this paragraph apply only to the A5/A449 link road.

(2) The undertaker must apply to the local highway authority for the issue of the final certificate in respect of the entirety of the A5/A449 link road at the expiration of the defects period of the last phase of the A5/A449 link road to be constructed or if later on the date on which any defects or damage arising from defects during the defects period of the last phase of the A5/A449 link road to be constructed have been made good to the satisfaction of the local highway authority acting reasonably, and when making such application the undertaker must—

(a) submit to the local highway authority as built information of the relevant phase;

(b) submit to the local highway authority a plan clearly identifying the extent of any land which is to be highway maintainable at public expense by the county highway authority which must be in accordance with the detailed design information but reflecting the as built outcome; and

(c) pay to the local highway authority the commuted sum calculated in accordance with the versions of the ADEPT Commuted Sums Calculator and the ADEPT Bridge Sums Guidance in force at the date on which the commuted sum is calculated.

(3) If the provisions of paragraph 9(2) of this Part of this Schedule are complied with to the satisfaction of the local highway authority, the local highway authority must immediately issue a final certificate for the entirety of the A5/A449 link road, such certificate not to be unreasonably withheld or delayed.

Security

9

(1) Prior to the commencement of each phase the county highway works within that phase must be secured by a bond or such other form of bond or other security that may be agreed between the undertaker and the local highway authority to indemnify the local highway authority against all losses, damages, costs or expenses arising from any breach of any one or more of the obligations of the undertaker in respect of that phase under the provisions of this Part of this Schedule provided that the maximum liability of the bond or other form of security does not exceed the bond sum relating to that phase.

(2) In respect of all the county highway works, with the exception of the A5/A449 link road, each bond sum must be automatically reduced as follows—

(a) on the issue of the provisional certificate for each phase the bond sum must automatically reduce by 80% of the bond sum relating to that phase save insofar as any claim or claims have been made against the bond or other form of security and/or liability on its part has arisen prior to that date; and

(b) on the issue of the final certificate for each phase the bond/security provider must automatically be released from all its obligations in respect of the bond or other form of security relating to that phase save insofar as any claim or claims have been made against the Bond or other form of security or liability on its part has arisen prior to that date.

(3) In respect of the A5/A449 link road the bond sum for each phase of the A5/A449 link road must be reduced as follows—

(a) in respect of any phase which includes any part of the new bridge to be provided over the railway and canal on the issue of the provisional certificate for that phase the bond sum must be reduced by such percentage as the undertaker and the local highway authority agree save insofar as any claim or claims have been made against the bond or other form of security and/or liability on its part has arisen prior to that date;

(b) in respect of all phases of the A5/A449 link road to which paragraph (a) does not apply, on the issue of the provisional certificate for that phase the bond sum must be reduced by such percentage as the undertaker and the local highway authority agree subject to a minimum reduction to 50% of the bond sum save insofar as any claim or claims have been made against the bond or other form of security and/or liability on its part has arisen prior to that date; and

(c) on the issue of the final certificate for the A5/A449 link road in accordance with paragraph 8 of this Part of this Schedule the bond/security provider must automatically be released from all its obligations in respect of all bonds or other form of security relating to the A5/A449 link road save insofar as any claim or claims have been made against the bond or other form of security or liability on its part has arisen prior to that date.

Insurance

10

The undertaker must prior to commencement of the county highway works effect public liability insurance with an insurer in the minimum sum of £10,000,000.00 (ten million pounds) against any legal liability for damage loss or injury to any property or any person as a direct result of the execution of the county highway works or any part thereof by the undertaker.

Indemnification

11

(1) The undertaker must in relation to the carrying out of the county highway works take such precautions for the protection of the public and private interest as would be incumbent upon it if it were the highway authority and must indemnify the local highway authority from and against all costs, expenses, damages, losses and liabilities arising from or in connection with or ancillary to any claim, demand, action or proceedings resulting from the design and carrying out of the county highway works prior to the issue of each defects certificate provided that the foregoing indemnity does not extend to any costs, expenses, liabilities and damages caused by or arising out of the neglect or default of the local highway authority or its officers, servants, agents or contractors or any person or body for whom it is responsible.

(2) The undertaker must pay to the local highway authority each sum (if any) that is due to the local highway authority and certified as correct by the local highway authority arising from paragraph 12 of this Part of this Schedule within 28 days of receiving written notice from the local highway authority to do so and where payment is overdue interest will be payable calculated on a daily basis at a rate of 1% above the Base Rate of Lloyds Bank Plc.

(3) The undertaker must notify the local highway authority of the intended date of opening of each phase to public traffic not less than 14 days in advance of the intended date.

(4) The undertaker must notify the local highway authority of the actual date that each phase is open to public traffic on each occasion within 14 days of that occurrence.

Warranties

12

The undertaker must procure warranties from the contractor and designer of each phase to the effect that all reasonable skill, care and due diligence will be exercised in designing and constructing that phase including the selection of materials, goods, equipment and plant, such warranties to be provided to the local highway authority before that phase commences.

Approvals

13

(1) Any approvals, certificates, consents or agreements required of, or sought from or with the local highway authority pursuant to the provisions of this Schedule must not be unreasonably withheld or delayed and must be given in writing save that any such approval, certificate, consent or agreement is deemed to have been given if it is neither given nor refused within 42 days of the specified day.

(2) In this paragraph “specified day” means—

(a) the day on which particulars of the matter are submitted to the local highway authority under the provisions of this Part of this Schedule; or

(b) the day on which the undertaker provides the local highway authority with any further particulars of the matter that have been reasonably requested by the local highway authority within 28 days of the date in paragraph (a),

whichever is the later.

Expert Determination

14

(1) Article 47 (arbitration) does not apply to this Part of this Schedule except in respect of sub-paragraph (7).

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

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

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

(5) The expert must—

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

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

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

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

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

(e) in respect of decisions on the level of the reductions of the bond sums pursuant to paragraph 9(3)(a) and (b) of this Part of this Schedule the need to ensure that the financial risk to the local highway authority is no greater than that which would ordinarily be accepted in relation to highway improvements required to facilitate private developments in which the local highway authority is carrying out its statutory duty as local highway authority, but having regard to any specific circumstances relating to the A5/A449 link road; and

(f) any other important and relevant consideration.

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

Bond form

15

Form 2 as referred to in paragraph 2—

PART 4 — FOR THE PROTECTION OF WESTERN POWER DISTRIBUTION LIMITED

1

The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and WPD.

2

In this Part of this Schedule—

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

“alternative rights” means all necessary legal easements, consents or permissions required by WPD to permit a diversion of apparatus or to authorise the construction of alternative apparatus;

“apparatus” means any conduit overhead electric lines cables ducts pipes or other apparatus or equipment belonging to or maintained by WPD for the purposes of electricity transmission and its distribution, and includes any structure in which apparatus is or will 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;

“plan” or “plans” includes all designs, drawings, specifications, method statements, programmes, calculations, risk assessments and other documents that are reasonably necessary to properly and sufficiently describe and assess the works to be executed;

“specified work” means so much of any of the authorised development that is carried out within 6 metres of any apparatus; and

“WPD” means Western Power Distribution Limited (West Midlands) Plc (Company Registration Number 03600574) whose registered office is at Avonbank, Feeder Road, Bristol, BS2 0TB.

3

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

4

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

5

(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 WPD’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of WPD to maintain that apparatus in that land or gain access to it must not be extinguished without the prior consent of WPD until alternative apparatus has been constructed and is in operation and access to it has been provided if necessary all to the reasonable satisfaction of WPD.

(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, it must give to WPD 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 WPD reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (6), afford to WPD the necessary facilities and rights for the construction of alternative apparatus in other land owned or controlled by the undertaker and subsequently for the maintenance of that apparatus.

(3) If, for the purpose of executing any works, the undertaker requires to remove or divert any apparatus placed within the Order land, and alternative apparatus or any part of such alternative apparatus is to be constructed in land other than the Order land as a consequence of the removal or diversion of apparatus, then the undertaker must use reasonable endeavours to obtain alternative facilities and rights in other land in which the alternative apparatus is to be constructed.

(4) Should the undertaker not be able to obtain the alternative rights required under sub-paragraph (3) then the undertaker and WPD must use reasonable endeavours to agree a reasonably practicable and mutually agreeable alternative engineering solution which does not require alternative apparatus to be constructed in land other than Order land and does not require alternative rights.

(5) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker and the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (3) and an alternative engineering solution cannot be agreed in accordance with sub-paragraph (4), WPD must on receipt of written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances 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 a requirement on WPD to use its compulsory purchase powers to this end unless WPD elects to do so.

(6) Any alternative apparatus required pursuant to sub-paragraphs (2) or (3) must be constructed in such manner and in such line or situation as may be agreed between WPD and the undertaker or in default of agreement settled in accordance with paragraph 10 of this Part of this Schedule.

(7) WPD must, after the alternative apparatus to be provided or constructed has been agreed or settled pursuant to paragraph 10 of this Part of this Schedule, and after the grant to WPD of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(8) Regardless of anything in sub-paragraph (7), if the undertaker gives notice in writing to WPD 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 of the undertaker, that work, instead of being executed by WPD, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of WPD.

(9) Nothing in sub-paragraph (8) authorises the undertaker 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.

6

(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to WPD 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 WPD or in default of agreement settled in accordance with paragraph 10 of this Part of this Schedule.

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

(a) give effect to all reasonable requirements of the undertaker for ensuring the safety and efficient operation of the authorised development and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the undertaker; 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 the land for which the alternative apparatus is to be substituted.

(3) 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 expert less favourable on the whole to WPD 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 expert must make provision for the payment of compensation by the undertaker to WPD as appears to the expert to be reasonable having regard to all the circumstances of the particular case.

7

(1) Not less than 60 days before the undertaker intends to start the execution of any specified work, the undertaker must submit to WPD a plan, section and description of the works to be executed. Any submission must note the time limits imposed on WPD under sub-paragraph (3).

(2) Subject to sub-paragraph (3) the undertaker must not commence any works to which sub-paragraph (1) applies until WPD has given written approval of the submitted plan, and identified any reasonable requirements it has in relation to the carrying out of the works, such approval not to be unreasonably withheld or delayed.

(3) If by the expiry of 60 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted WPD has not advised the undertaker in writing of its approval or disapproval of the plans and any reasonable requirements for the alteration or otherwise for the protection of the apparatus, or for securing access to it, it is deemed to have approved the plans, sections or descriptions as submitted.

(4) The works referred to in sub-paragraph (1) must be executed in accordance with the plan, section and description approved under sub-paragraph (3) and in accordance with any reasonable requirements as may be notified in accordance with sub-paragraph (2) by WPD, and WPD is entitled to watch and inspect the execution of those works.

(5) At all times when carrying out any works authorised under the Order the undertaker must comply with WPD’s “Avoidance of Danger from Electricity Overhead Lines and Underground Cables” (2014), the Energy Network Association’s “A Guide to the Safe Use of Mechanical Plant in the Vicinity of Electricity Overhead Lines” (undated), the Health and Safety Executive’s GS6 “Avoiding Danger from Overhead Power Lines” and the Health and Safety Executive’s “HSG47 Avoiding Danger from Underground Services” (3rd edition, 2014) as the same may be replaced from time to time.

(6) If in consequence of the works proposed by the undertaker, WPD reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement in accordance with sub-paragraph (2), the provisions of this paragraphs apply as if the removal of the apparatus had been required by the undertaker under paragraph 5(2) of this Part of this Schedule.

(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 60 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.

(8) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to WPD notice as soon as is reasonably practicable, submit a plan, section and description of those works to WPD as soon as reasonably practicable subsequently and comply with sub-paragraph (4) in so far as is reasonably practicable in the circumstances.

8

The undertaker must repay to WPD the reasonable expenses incurred by WPD in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new connection arising as a result of the powers conferred upon the undertaker pursuant to this Order.

9

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

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

(b) make reasonable compensation to WPD for any other expenses, loss, damages, penalty or costs incurred by WPD, by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph (l) 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 WPD, its officers, servants, contractors or agents.

(3) WPD 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, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Expert determination

10

(1) Subject to sub-paragraph (7), article 47 (arbitration) does not apply to this Part of this Schedule.

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

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

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

(5) The expert must—

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

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

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

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

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

(e) any other important and relevant consideration.

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

PART 5 — FOR THE PROTECTION OF USERS OF THE GAILEY PARK ROUNDABOUT

1

The provisions of this Part of this Schedule have effect unless otherwise agreed in writing between the undertaker and the parties individually.

2

In this Part of this Schedule—

“Gailey Park roundabout” means the roundabout which is to be altered as part of Works No. 10b over which the parties have rights of access;

“Gravelly Way” means that part of Gravelly Way to be permanently stopped up as identified in Part 1 of Schedule 4 (streets to be permanently stopped up);

“new access road” means the new private road to connect the Gailey Park roundabout and the A5/A449 link road;

“parties” means the parties identified in paragraph 13 of this Part of this Schedule who have a right of way over the Gailey Park roundabout and such other persons who may acquire such interest, and “party” is to be construed accordingly;

“parties’ premises” means the premises owned or occupied by the parties whose access is wholly or partly reliant on the Gailey Park roundabout; and

“vehicular access” means access for any type of vehicle which is able to access the parties’ premises at the time this Order was made.

Maintaining access rights

3

(1) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access at any time to any part of the parties’ premises nor materially hinder or materially affect the standard, type and extent of access to the parties’ premises without the consent of the party concerned, except in the case of emergency (and in the event of such emergency the undertaker must ensure that such prevention is minimised in scope and duration so far as is reasonably practicable).

(2) The undertaker must at all times maintain vehicular and pedestrian access for the parties and those wishing to visit the parties’ premises from the public highway at any time through the Gailey Park roundabout either utilising the existing Gravelly Way or from the A5/A449 link road or a temporary alternative suitable for such purpose (and in the event that a temporary alternative is to be provided, the undertaker must ensure that such temporary alternative is provided for the minimum duration reasonably practicable).

(3) The undertaker must not in the exercise of the powers conferred by this Order open the new access road unless and until the section of the A5/A449 link road between the new access road and the A449 has been practically completed and opened to the public.

Design details

4

(1) The undertaker must before commencing Works No. 10b provide a copy of the detailed plans and specifications of the new access road, the Gailey Park roundabout, any permanent and/or temporary accesses to the parties’ premises, all existing and proposed service media affected by Works No. 10b and all proposed traffic management arrangements to the parties in draft and allow the parties 28 days to comment on them, and following receipt of all information reasonably required by the parties the undertaker must have regard to any reasonable comments made by the parties in respect of the detailed design of the new access road, the Gailey Park roundabout, any permanent and/or temporary accesses to the parties’ premises, all proposed service media affected by Works No, 10b and all proposed traffic management arrangements.

(2) The undertaker must repay to the parties the reasonable and proper fees, costs, charges and expenses reasonably incurred by the parties in respect of their review of the details submitted by the undertaker pursuant to sub-paragraph (1) and any subsequent discussions regarding the specification of the new access road within 28 days of written demand.

5

The undertaker will procure warranties in favour of the parties from all main contractors, any sub-contractors with a design responsibility and any designers of the new access road, the Gailey Park roundabout, and accesses to the parties’ premises and any associated temporary works to the effect that all reasonable skill, care and diligence will be exercised in designing and constructing those works to the standard as would reasonably be expected in respect of a similar roadway including the selection of materials, goods, equipment and plant, such warranties to be provided to the parties before commencing Works No. 10b.

6

The undertaker must provide as part of the works signage to direct that the new access road and Gailey Park roundabout are not to be used by construction or operational traffic of the authorised development.

7

The undertaker must not in the exercise of powers conferred by this Order extinguish any rights currently enjoyed by any party to install, connect into, repair, maintain, replace, move or remove or otherwise use service media, nor prevent the installation, connection, repair, maintenance, replacement, movement, removal, decommissioning or use of such services without the relevant party’s consent (such consent not to be unreasonably withheld or delayed) or until the diversion of or provision of a reasonably suitable alternative to those services has been provided and rights have been granted to the parties to install, connect into, repair, maintain, replace or use such diverted or alternative service media and such diversion, alternative and rights must be no less beneficial to the parties than those currently enjoyed by those parties.

New access rights

8

(1) Following the completion of the construction of the new access road the undertaker must grant to each party rights of access for pedestrians and vehicles over the new access road and the Gailey Park roundabout in order to enable that party and all those authorised by it to have pedestrian and vehicular access to and egress from its premises at any time from the A5/A449 link road via the new access road and such rights of access and egress must be on terms which are no less beneficial to the party’s premises and which impose no greater liability (but which will include maintenance of the length of the new access road) in respect of the parties’ premises than those enjoyed by or imposed upon that party at the time this Order was made.

(2) The undertaker must, prior to the grant of the rights required under sub-paragraph (1), consult each party on the form of the rights that party requires having regard to that party’s need to have access to and egress from any part of its premises and such rights must be on terms which are no less beneficial and which impose no greater liability (but which will include maintenance of the length of the new access road) in respect of the parties’ premises than those currently enjoyed by or imposed upon that party over the Gailey Park roundabout via Gravelly Way from the public highway and the undertaker must have regard to the reasonable comments of the parties in relation to the rights granted.

(3) Following the completion of any temporary alternative access to the parties’ premises the undertaker must grant to the parties concerned rights for pedestrian access and vehicular access over such temporary alternative access as necessary in order that the parties and all those authorised by them can have pedestrian and vehicular access to and egress from their premises at any time from the A5/A449 link road via such temporary alternative access and such rights of access must be no less beneficial to the parties’ premises than those rights of access enjoyed by the parties at the time this Order was made.

(4) The undertaker must, prior to the grant of the rights required under sub-paragraph (3), consult each party on the form of the rights they require having regard to the need to access any part of their premises which must be no less beneficial to the parties’ premises than those rights currently enjoyed by those parties over the Gailey Park roundabout via Gravelly Way to the public highway and the undertaker must have due regard to the reasonable comments of the parties in relation to the rights granted.

Maintenance

9

(1) Following the completion of the new access road and the Gailey Park roundabout in order that each party and all those authorised by it are able to have access to and egress from any part of the relevant party’s premises, the undertaker must at its own expense remedy any material defects in those works as reasonably and properly required to be remedied as are identified by the parties or any of them within a period of 12 months from and including the date of such completion. Such remedial work must be carried out to the satisfaction of the party concerned acting reasonably and, provided that the defects in those works have been identified by the parties or any of them within the period of 12 months from the date of completion of the new access road and the Gailey Park roundabout, the undertaker’s obligation to carry out the remedial works continues beyond that 12 month period until the works have been completed to the satisfaction of the party or parties concerned acting reasonably.

(2) The undertaker must maintain the new access road and the Gailey Park roundabout as necessary in order that each party and all those authorised by it can gain access to and egress from any part of the party’s premises following completion of the works until alternative maintenance arrangements are agreed or until the transfer of the works to a management company pursuant to paragraph 10 of this Part of this Schedule.

10

The undertaker and the parties may enter into, and carry into effect, an agreement for the transfer to a management company of the land comprised in the new access road.

Indemnity

11

If any material damage to the parties’ premises or any of them is caused by the construction or maintenance (where the undertaker is responsible for such maintenance and not the management company) of the new access road, the Gailey Park roundabout, any accesses to the parties’ premises, any associated service media works or any associated temporary works, the undertaker must make good such damage and must pay to the party concerned all reasonable and proper costs, charges, damages, expenses and losses that it may incur by reason of such damage and must indemnify and keep indemnified the parties from and against all third party claims and demands arising out of or in connection with any of the matters referred to in this paragraph provided that the foregoing indemnity does not extend to any costs, charges, expenses, losses, liabilities or damages caused by or arising out of the actions, omissions or default of the party concerned or its officers, servants, agents or contractors or any person or body for whom it is responsible.

Expert determination

12

(1) Subject to sub-paragraph (7), article 47 (arbitration) does not apply to this Part of this Schedule.

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

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

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

(5) The expert must—

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

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

(d) give reasons for the decision.

(6) The expert must consider where relevant—

(a) the development outcome sought by the undertaker;

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

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

(e) any other important and relevant consideration; and

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

(7) Any determination by the expert is final and binding, except in the case of manifest error in which case the difference that has been subject to expert determination may be referred to and settled by arbitration under article 47.

13

The parties referred to in the definition of “parties” in paragraph 2 are—

Air Liquide (Homecare) Limited

Bericote Four Ashes Limited;

British Telecommunications plc;

Carver (Wolverhampton) Limited;

Energetics Electricity Limited;

Gravelly Way Management Ltd;

Gestamp Tallent Limited;

Haulotte UK Limited;

Hoppe (U.K.) Limited;

LU UK II Sarl;

Mancot Limited;

Alan Monckton;

Camilla Monckton;

Oliver Monckton;

South Staffordshire Water plc;

Sky UK Limited;

Tritax Acquisition 28 Limited; and

Tritax Big Box plc.

PART 6 — FOR THE PROTECTION OF THE SI GROUP

1

The provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and SI Group.

2

In this Part of this Schedule and notwithstanding the definitions contained in article 2 (interpretation)—

“environmental permit” means the permit issued by the Environment Agency to SI Group under reference EPR/BS47071B (as varied) in respect of the SI facility and the SI land;

“Four Ashes Limited” means Four Ashes Limited whose company number is 09747871 and whose registered office is 4th floor, 7/10 Chandos Street, Cavendish Square, London, W1G 9DQ;

“permits” means the environmental permit and a licence to abstract groundwater under reference number MD/028/0003/002 which inter alia govern the abstraction of contaminated groundwater and discharge to a wastewater treatment plant at the SI facility;

“SI facility” means the land edged blue for indicative purposes only on the SI facility plan;

“SI facility plan” means the plan referred to as such in Schedule 15 (certification documents) and certified as the SI facility plan by the Secretary of State for the purposes of this Order;

“SI land” means the land within the Order limits which is owned by the SI Group for so long as it is owned by it; and

“written agreement of SI” means— the agreement dated 3 August 2018 between the SI Group and Four Ashes Limited; or such other written agreement made between the SI Group and Four Ashes Limited from time to time.

3

Subject to paragraph 7(1) of this Part of this Schedule the undertaker must not exercise any powers in accordance with this Order or the powers conferred by section 11(3) (powers of entry) of the 1965 Act in respect of the SI Group’s interests in the SI land or SI facility, or those interests which benefit those interests, including all rights, wayleaves and easements enjoyed by the SI Group in relation to the SI land and/or SI facility pursuant to—

(a) article 13 (accesses);

(b) article 21 (discharge of water);

(d) article 24 (compulsory acquisition of land);

(e) article 25 (compulsory acquisition of rights);

(f) article 28 (private rights);

(g) article 29 (power to override easements and other rights);

(h) article 33 (rights under and over streets);

(i) article 34 (temporary use of land for carrying out the authorised development);

(j) article 35 (temporary use of land for maintaining the authorised development); and/or

(k) article 41 (felling or lopping trees and removal of hedgerows),

unless the exercise of such powers is in accordance with the written agreement of SI.

4

The undertaker must not take any steps in accordance with this Order or otherwise that give rise to SI Group being in breach of any permits.

5

The undertaker must not carry out any of the authorised development on any part of the SI land where that land remains encompassed within the site boundary regulated by and referred to in the environmental permit save as in accordance with the written agreement of SI.

6

The undertaker must not, save as in accordance with the written agreement of SI., interfere with or obstruct the free, uninterrupted and safe use of any vehicular access to the SI facility.

7

A power referred to in paragraphs 3, 5 and 6 of this Part of this Schedule may be exercised notwithstanding those paragraphs where the written agreement with SI to which they refer provides that the power is permitted to be exercised.

PART 7 — FOR THE PROTECTION OF THE CANAL & RIVER TRUST

1

The provisions of this Part of this Schedule are to have effect unless otherwise agreed in writing between the undertaker and the Canal & River Trust.

2

In this Part of this Schedule—

“canal” means that part of the Staffordshire and Worcestershire Canal located within the Order limits;

“construction” includes execution, placing, alteration and reconstruction, and “construct” and “constructed” are to be construed accordingly;

“Trust” means the Canal & River Trust acting as a trustee of the Waterways Infrastructure Trust or any successor body performing the same functions and which holds any waterways within the order limits;

“code of practice” means the Code of Practice for Works Affecting the Trust (April 2017) as amended from time to time;

“detriment” means any damage to the waterway or any other property of the Trust caused by the presence of the authorised works and includes— any effect on the stability of the waterway or the safe operation and navigation of any waterway; any obstruction of, or interference with, or hindrance or damage to, navigation or to any use of the waterway (including towing paths); the erosion of the bed or banks of the waterway, or the impairment of the stability of any works, lands or premises forming part of the waterway; the deposit of materials or the siltation of the waterway so as to damage the waterway; the pollution of the waterway; any significant alteration in the water level of the waterway, or significant interference with the supply of water thereto, or drainage of water therefrom; any harm to the ecology of the waterway (including any adverse impact on any site of special scientific interest comprised in the Trust network); and any interference with the exercise by any person of rights over the Trust’s network;

“the engineer” means an engineer appointed by the Trust for the purpose in question;

“plans” includes sections, designs, design data, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), programmes and details of the extent, timing and duration of any proposed use and/or occupation of the waterway;

“protective works” means works carried out pursuant to the provisions of paragraph 4(4) of this Part of this Schedule

“specified work” means so much of the authorised development as is situated upon, across, under, over or within 15 metres of the waterway; and

“waterway” means the canal, Calf Heath Reservoir and two feeder channels and any other property of the Trust (including fibre optic cabling within the towpath) and includes any works, services, apparatus, equipment, lands (including subsoil) or premises belonging to or under the control of the Trust and held or used by it in connection with its statutory functions.

3

(1) Where under this Part of this Schedule or anywhere else under this Order the Trust (or the engineer) is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that the Trust must observe the provisions of its code of practice for works affecting waterways and where the code of practice is adhered to and its provisions observed, such consent must not be unreasonably withheld or delayed. Any consent may be issued subject to reasonable conditions including any condition which requires compliance with the code of practice or any applicable part and any condition which requires the payment of such charges/fees/costs as are typically charged by the Trust and in respect of article 21 (discharge of water), it is reasonable to impose the following conditions—

(a) requiring the payment of such charges as are typically charged by the owner of the relevant waterway;

(b) specifying the maximum volume of water which may be discharged in any period; and

(c) authorising the Trust on giving reasonable notice (except in an emergency, when the Trust may require immediate suspension) to the undertaker to require the undertaker to suspend the discharge of water or reduce the flow of water where this is necessary by reason of any operational or environmental requirement of the Trust.

(2) In so far as any specified work or the acquisition of rights under and/or over or use of the waterway is or may be subject to the code of practice, the Trust must—

(a) co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from that code or any other reasonable requirements of the Trust or the engineer; and

(b) use its reasonable endeavours to avoid any conflict arising between the application of that code and the proper implementation of the authorised development pursuant to this Order.

(3) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any of the waterway, unless preventing such access is with the consent of the Trust.

(4) The undertaker must not exercise the powers conferred by sections 271 (extinguishment of rights of statutory undertakers: preliminary notices) or 272[^f00086] (extinguishment of rights of electronic communications code network operators: preliminary notices) of the 1990 Act, or article 32 (statutory undertakers and operators of the electronic communications code network), in relation to any right of access of the Trust to the waterway, but such right of access may be diverted with the consent of the Trust .

(5) The undertaker must not exercise any power conferred by this Order to discharge water into the waterway under article 21 or in any way interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of the Trust.

(6) The undertaker must not exercise any power conferred by article 22 (authority to survey and investigate land) or section 11(3) (powers of entry) of the 1965 Act, in relation to the waterway unless such exercise is with the written consent of the Trust.

(7) The undertaker must not exercise any power conferred by article 24 (compulsory acquisition of land) or article 25 (compulsory acquisition of rights) in respect of the Trusts interests in the waterway.

(8) The undertaker must not exercise any power conferred by article 34 (temporary use of land for carrying out the authorised development) or article 35 (temporary use of land for maintaining the authorised development) in respect of the waterway unless such exercise is with the consent of the Trust.

(9) The undertaker must not exercise any power conferred by this Order to construct a bridge spanning the waterway without the consent of the Trust with the exception of the powers of acquisition of rights over those interests held by third parties required to facilitate the construction of a bridge over the canal.

(10) The undertaker must not exercise any power conferred by this Order to construct a culvert under the waterway without the consent of the Trust.

(11) The undertaker must not exercise the power conferred by article 4 (parameters of authorised development) in respect of any bridges over the waterway without the consent of the Trust.

(12) The undertaker must not exercise any power conferred by article 41 (felling or lopping of trees and removal of hedgerows) in respect of tree, shrub or hedgerow within an area of the specified work unless such power is exercised with the consent of the Trust.

(13) The undertaker must not demolish the canal crossings (as identified on the parameter plans (Document 2.5)) without first agreeing with the Trust the timescales and methodology of the demolition and the demolition must thereafter be carried out in accordance with the agreed methodology and timescale.

(14) The undertaker must not exercise any power conferred by this Order to stop up any public rights of navigation on the canal other than with the consent of the Trust.

(15) Where the Trust is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld or delayed but may be given subject to reasonable conditions.

(16) Where the undertaker is required to obtain the Trust’s consent in accordance with this Order, such consent must be obtained in writing.

(17) The undertaker must consult and have regard to representations made by the Trust in relation to any details submitted to the local planning authority for approval under any of the requirements relating to so much of the authorised development as is situated upon, across, under, over or within 150 metres of, or may in any way affect, the waterway; this includes requirements 3, 4(2)(b), (c), (e), (h) and (n), 4(4), 6, 12, 13, 16, 17, 18, 20, 26, 27 and 30.

(18) Article 21(9) does not apply in relation to the Trust and accordingly there can be no deemed approval in respect of the discharge of any water into the waterway.

Approval of plans

4

(1) The undertaker must before commencing construction of any specified work or carrying out any works on the waterway whatsoever supply to the Trust proper and sufficient plans of that work, the form(s) and application fee which is ordinarily required by the Trust’s engineers in accordance with the code of practice and such further particulars available to it as the Trust may within 28 days of the submission of the plans reasonably require for the reasonable approval (having regard to the undertaker’s timetable for the construction of the authorised development) of the Trust, and the specified work must not be commenced until the plans of that work have been approved in writing by the engineer or settled by expert determination pursuant to paragraph 25 of this Part of this Schedule. The approval of the engineer may be subject to any reasonable requirement that the specified work is undertaken at a time specified by the engineer.

(2) If—

(a) at the expiry of the period of 35 days—

(i) from receipt by the Trust of the proper and sufficient plans of the work, the form(s) and application fee which is ordinarily required by the Trust’s engineers in accordance with the code of practice as referred to in sub-paragraph (1); or

(ii) if any other particulars are reasonably required by the Trust under sub-paragraph (1), from receipt by the Trust of that further information for; and

(b) the Trust has not served—

(i) notice of refusal of those plans; and

(ii) the grounds for refusal of those plans,

the Trust is deemed to have approved the plans as submitted provided that all information specified in sub-paragraph (1) has been supplied to the Trust together with any ordinarily applicable application fee.

(3) If by the end of the period of 35 days beginning with the date on which written notice was received by the engineer under sub-paragraph (1), the Trust gives notice to the undertaker that the Trust desires itself to construct any part of a specified work which in the opinion of the engineer may or will cause any detriment in respect of the waterway or the safe operation of the waterway, then if the undertaker requires such part of such specified work to be constructed the Trust must construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision of the undertaker; and the undertaker must reimburse the Trust in respect of all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.

(4) When signifying its approval of the plans, the Trust may specify any protective works (whether temporary or permanent) which in its opinion should be carried out before commencement of the construction of a specified work to prevent any detriment and such protective works (which for the avoidance of doubt may include requirements to fence any proposed works in order to separate the same from the waterway either on a permanent or temporary basis) as may be reasonably necessary to prevent detriment must be constructed by the undertaker, as agreed between the parties or settled by expert determination in accordance with paragraph 25 of this Part of this Schedule and such protective works must be carried out at the expense of the undertaker with all reasonable dispatch and the undertaker must not commence the construction of a specified work until the engineer has notified the undertaker that any protective works have been completed to the engineer’s reasonable satisfaction.

(5) The undertaker must pay to the Trust a capitalised sum representing the reasonably increased or additional cost of maintaining and, when necessary, renewing any works, including any permanent protective works provided under sub-paragraph (4) above, and of carrying out any additional dredging of the waterway reasonably necessitated by the exercise of any of the powers under this Order but if the cost of maintaining the waterway, or of works of renewals of the waterway, is reduced in consequence of any such works, a capitalised sum representing such reasonable saving must be set off against any sum payable by the undertaker to the Trust under this paragraph.

(6) In the event that the undertaker fails to complete the construction of, or part of, the specified works or protective works the Trust may, if reasonably required in order to avoid detriment, serve on the undertaker a notice in writing requesting that construction be completed. Any notice served under this sub-paragraph must state the works that are to be completed by the undertaker and lay out a timetable for the works’ completion. If the undertaker fails to comply with this notice within 35 days, the Trust may construct any of the specified works or protective works, or part of such works (together with any adjoining works) in order to complete the construction of, or part of, the specified works and/or protective works and the undertaker must reimburse the Trust all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.

Vehicles

5

The undertaker must not use any of the waterway for the passage or siting of vehicles, plant and machinery employed in the construction of the specified works other than—

(a) with the consent in writing of the Trust whose consent must not be unreasonably withheld; and

(b) subject to compliance with such reasonable requirements as the Trust may from time to time specify—

(i) for the prevention of the detriment; or

(ii) in order to avoid or reduce any inconvenience to the Trust, its officers and agents and all other persons lawfully on such land or property, but nothing in this paragraph applies in relation to anything done in accordance with any approval given by the Trust under paragraph 4 of this Part of this Schedule provided that such approval is given with the knowledge of the use of any land or property of the Trust or the waterway for this purpose.

Survey of waterway

6

(1) Before the commencement of the initial construction of any part of the specified works and again following practical completion of the specified works the undertaker must bear the reasonable cost of the carrying out by a qualified engineer (“the surveyor”), to be approved by the Trust and the undertaker, of a survey including a dip-survey to measure the depth of the waterway (“the survey”) of so much of the waterway and any land and existing works of the undertaker which may provide support for the waterway as will or may be affected by the specified works.

(2) For the purposes of the survey the undertaker must—

(a) on being given reasonable notice (save in case of emergency, when immediate access must be afforded) afford reasonable facilities to the surveyor for access to the site of the specified works and to any land and existing works of the undertaker which may provide support for the waterways as will or may be affected by the specified works; and

(b) supply the surveyor as soon as reasonably practicable with all such information as he may reasonably require with regard to such existing works of the undertaker and to the specified works or the method of their construction.

(3) The reasonable costs of the survey must include the costs of any dewatering or reduction of the water level of any part of the waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey and the provisions of this Part of this Schedule apply with all necessary modifications to any such dewatering or reduction in the water level as though the same were specified works

(4) Copies of the survey must be provided to both the Trust and the undertaker at no cost to the Trust.

Design of works

7

(1) Without prejudice to its obligations under the provisions of this Part of this Schedule the undertaker must consult, collaborate and respond constructively to any approach, suggestion, proposal or initiative made by the Trust in relation to—

(a) the design and appearance of the specified works (or any works authorised by this Order so far as such works may affect the waterway or the setting of the waterway), including the materials to be used for their construction; and

(b) the environmental effects of those works,

and must have regard to such views as may be expressed by the Trust in response to such consultation pursuant in particular to the requirements imposed on the Trust by section 22 (general environmental and recreational duties) of the British Waterways Act 1995[^f00087] and to the interest of the Trust in preserving and enhancing the environment of its waterways.

Construction of specified works

8

(1) Any specified work and any protective works to be constructed must, when commenced, be constructed—

(a) with all reasonable dispatch (having regard to the undertaker’s timetable for construction of the authorised development) in accordance with the plans approved or deemed to have been approved or settled under paragraph 4 of this Part of this Schedule and with any requirements made under paragraph 7 of this Part of this Schedule;

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

(d) in such a manner to ensure that no materials are discharged or deposited into the waterway forming part of the Trust property otherwise than in accordance with article 21 (discharge of water);

(e) in such a manner as to cause as little inconvenience as is reasonably practicable to the Trust, its officers and agents and all other persons lawfully using the waterway, except to the extent that temporary obstruction has otherwise been agreed by the Trust; and

(f) in compliance with the code of practice if relevant.

(2) If any damage or detriment to the waterway is caused by the carrying out of, or in consequence of the construction of a specified work or protective work, the undertaker must make good such damage or detriment and must pay to the Trust all reasonable and proper expenses that the Trust may incur or may be put and reasonable and proper compensation for any loss which it may sustain by reason of such damage, detriment, interference or obstruction.

(3) Nothing in this Part of this Schedule imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligent act or default of the Trust or its servants, contractors or agents or any liability on the Trust with respect of any damage, costs, expenses or loss attributable to the negligent act or default of the undertaker or its servants, contractors or agents.

(4) Nothing in this Order authorises the undertaker to make or maintain any permanent work in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which the Trust is required by section 105(1)(b) and (2) (maintenance of waterways) of the Transport Act 1968[^f00088] to maintain the waterway.

(5) Following the completion of the construction of the specified works the undertaker must restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of those works unless otherwise agreed between the undertaker and the Trust.

Notice of works and access to works

9

(1) The undertaker must give to the Trust 30 days’ notice of its intention to commence the construction of any of the specified or protective works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable so that, in particular, the Trust may where appropriate arrange for the publication of notices bringing those works to the attention of users of the Trust’s network.

(2) The undertaker must—

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

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

(3) In relation to any proposed closure of the canal or towpath or proposed temporary stopping up of public rights of navigation in respect of the canal, the undertaker must comply with the notification requirements and the procedure set out in the code of practice.

Lighting

10

The undertaker must provide and maintain at its own expense in the vicinity of the specified or protective works such temporary lighting and such signal lights for the control of navigation as the Trust may reasonably require during the construction or failure of the specified or protective works.

Access to works

11

The Trust, on being given reasonable notice, must use reasonable endeavours to afford reasonable facilities to the undertaker and its agents for access to any works carried out by the Trust under this Part of this Schedule during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them and the undertaker must reimburse the Trust’s reasonable costs in relation to the supply of such information.

Prevention of pollution

12

The undertaker must not in the course of constructing a specified work or protective works or otherwise in connection therewith (or in connection with any works authorised by this Order) do or permit anything which may result in the pollution of the waterway or the deposit of materials therein and must comply with any statutory requirements and take such steps as the Trust may reasonably require to avoid or make good any breach of its obligations under this paragraph.

Repayment of the Trust's fees

13

The undertaker must repay to the Trust all reasonable and proper fees, costs, charges and expenses reasonably incurred by the Trust in accordance with the code of practice in respect of—

(a) its approval of plans submitted by the undertaker;

(b) the supervision by the Trust of the construction of a specified work or protective works;

(c) in respect of the employment during the construction of the specified works or any protective works of any inspectors, watchmen and other person whom it is reasonably necessary to appoint for inspecting, watching and lighting any waterway and for preventing, so far as may be reasonably practicable, the interference, obstruction, danger or accident arising from the construction or failure of the specified works and any protective works; and

(d) in bringing the specified works or any protective works to the notice of users of the Trust’s network.

Maintenance of works

14

If at any time during or after the completion of a specified work or protective works, the Trust gives notice to the undertaker informing it that the state of maintenance of the work appears to be such that the work is causing or likely to cause detriment, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not to cause such detriment.

Compensation and indemnity

15

(1) The undertaker must pay to the Trust all reasonable and proper costs, charges, damages, expenses and losses not otherwise provided for in this Part of this Schedule which may be occasioned to and reasonably incurred by the Trust—

(a) by reason of the existence, construction or maintenance of a specified work or protective works or the failure of such work; or

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

and the undertaker must indemnify and keep indemnified the Trust from and against all claims and demands arising out of or in connection with any of the matters referred to in this sub-paragraph. The fact that any act or thing may have been done by the Trust on behalf of the undertaker or in accordance with plans approved by the Trust or in accordance with any requirement of the Trust or under the Trust’s supervisions or in accordance with any directions or awards following expert determination is not (if it was done without negligence on the part of the Trust or any person in its employ or of its contractors or agents) to relieve the undertaker from any liability under the provision of this sub-paragraph.

(2) The Trust must give the undertaker reasonable notice of any such claim or demand and save as such conduct would be contrary to law no settlement or compromise of such a claim or demand must be made without the prior written consent of the undertaker, such consent not to be unreasonably withheld or delayed.

16

The Trust must, on receipt of a written request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim or to be made pursuant to this Part of this Schedule.

17

In the assessment of any sums payable to the Trust under this Part of this Schedule, there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by the Trust if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part of this Schedule or increasing the sums so payable.

18

The undertaker and the Trust may enter into, and carry into effect, agreement for the transfer to the undertaker of—

(a) any waterway shown on the works and/or land plans and described in the book of reference;

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

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

and the Trust may seek to require the undertaker to pay a commercial rate/cost/fee to the Trust.

19

The undertaker must repay to the Trust in accordance with the Trust’s code of practice all reasonable fees, costs, charges and expenses reasonably incurred by the Trust—

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The West Midlands Rail Freight Interchange Order 2020

Bond form

17

PART 3 — FOR THE PROTECTION OF THE LOCAL HIGHWAY AUTHORITY

Application

1

Interpretation

2

Prior Approvals and Security

3

Carrying out of works

4

Payments

5

Provisional certificate and defects period

6

Final certificate – except for A5/A449 link road

7

Final certificate – A5/A449 link road

8

Security

9

Insurance

10

Indemnification

11

Warranties

12

Approvals

13

Expert Determination

14

Bond form

15

PART 4 — FOR THE PROTECTION OF WESTERN POWER DISTRIBUTION LIMITED

1

2

3

4

5

6

7

8

9

Expert determination

10

PART 5 — FOR THE PROTECTION OF USERS OF THE GAILEY PARK ROUNDABOUT

1

2

Maintaining access rights

3

Design details

4

5

6

7

New access rights

8

Maintenance

9

10

Indemnity

11

Expert determination

12

13

PART 6 — FOR THE PROTECTION OF THE SI GROUP

1

2

3

4

5

6

7

PART 7 — FOR THE PROTECTION OF THE CANAL & RIVER TRUST

1

2

Powers requiring consent of the Trust

3

Approval of plans