The Mallard Pass Solar Farm Order 2024

• “AIL rights” means rights over land to, for the purposes of the authorised development and in connection with the authorised development — pass and repass on foot, with or without vehicles, plant and machinery (including rights to lay and use any surface) and to temporarily remove impediments to such passage. (1) Plot reference number shown on the Land Plans (2) Purposes for which rights over land may be required and restrictive covenants imposed 01–02Vegetation maintenance rights01–03Vegetation maintenance rights01–05Vegetation maintenance rights01–06Access rights and vegetation maintenance rights01–10Vegetation maintenance rights01–10aCable rights and vegetation maintenance rights01–19Cable rights01–20Cable rights and vegetation maintenance rights01–21Cable rights01–22Cable rights01–23Cable rights01–24Cable rights01–25Cable rights01–26Cable rights01–27Cable rights01–28Cable rights01–29Cable rights01–30Cable rights01–31Cable rights and vegetation maintenance rights01–32Cable rights and vegetation maintenance rights01–34Vegetation maintenance rights01–35Cable rights and vegetation maintenance rights01–36Cable rights and vegetation maintenance rights01–37Cable rights01–37aAccess rights and cable rights01–38Cable rights01–39Cable rights01–40Cable rights and vegetation maintenance rights01–41Cable rights01–41aAccess rights and cable rights01–42Cable rights and vegetation maintenance rights01–44Access rights, cable rights and vegetation maintenance rights01–45Access rights, cable rights and vegetation maintenance rights01–46Access rights, cable rights and vegetation maintenance rights01–47Access rights and cable rights02–01Access rights and cable rights02–02Access rights, cable rights and vegetation maintenance rights02–04Access rights, cable rights and vegetation maintenance rights02–05Access rights and cable rights02–06Access rights, cable rights and vegetation maintenance rights02–09Cable rights and vegetation maintenance rights02–10Cable rights02–11Cable rights02–12Access rights and cable rights02–13Access rights and cable rights02–14Vegetation maintenance rights02–16Access rights and vegetation maintenance rights02–18Vegetation and maintenance rights02–19Vegetation and maintenance rights02–21Vegetation and maintenance rights02–22Vegetation and maintenance rights02–24Vegetation and maintenance rights02–25Vegetation and maintenance rights02–27Vegetation and maintenance rights02–28Cable rights02–29Cable rights02–30Cable rights02–31Cable rights02–32Cable rights02–33Cable rights02–34Cable rights02–35Cable rights02–36Access rights, cable rights and AIL rights02–37Vegetation maintenance rights02–38Access rights, cable rights and AIL rights02–41Access rights, cable rights and AIL rights02–43Access rights, cable rights and AIL rights02–44Access rights, cable rights and AIL rights02–45Access rights, cable rights and AIL rights02–46Access rights, cable rights and AIL rights02–47Access rights, cable rights and AIL rights02–49Access rights, cable rights and AIL rights02–51aCable rights02–51bCable rights02–52aCable rights02–52bCable rights02–53Cable rights and vegetation maintenance rights02–54Cable rights02–55Cable rights02–56Cable rights02–57Cable rights02–58Cable rights02–59Cable rights02–60Cable rights02–61Cable rights02–62Cable rights02–63Cable rights02–64Cable rights02–65Cable rights02–66Cable rights02–67Cable rights02–68Cable rights02–70Cable rights02–71Cable rights02–72Cable rights02–73Cable rights02–74Cable rights02–75Cable rights02–76Cable rights02–77Cable rights02–78Cable rights02–79Cable rights02–80Cable rights02–81Cable rights02–82Cable rights02–83Cable rights02–84Cable rights02–85Cable rights02–86Cable rights02–87Cable rights02–88Cable rights02–89Cable rights02–90Cable rights02–91Cable rights02–92Cable rights02–93Cable rights02–94Cable rights02–95Cable rights02–96Cable rights02–97Cable rights02–98Cable rights02–99Cable rights02–100Cable rights02–101Cable rights02–102Cable rights02–103Cable rights02–104Cable rights02–105Cable rights02–106Cable rights02–107Cable rights02–108Cable rights02–109Cable rights02–110Cable rights02–111Cable rights02–112Cable rights02–113Cable rights02–114Cable rights02–115Cable rights02–116Cable rights02–117Cable rights02–118Cable rights02–119Cable rights02–120Cable rights02–121Cable rights02–122Cable rights02–123Cable rights02–124Cable rights02–125Cable rights02–126Cable rights02–127Cable rights02–128Cable rights02–129Cable rights02–130Cable rights02–131Cable rights02–132Cable rights02–133Cable rights02–134Cable rights02–135Cable rights02–138aCable rights02–139Cable rights02–140Cable rights02–141Cable rights02–142Cable rights02–144Cable rights02–145Cable rights02–146Cable rights02–147Cable rights and vegetation maintenance rights02–149Cable rights02–150Access rights and vegetation maintenance rights02–151Cable rights03–03Access rights and vegetation maintenance rights03–06Vegetation maintenance rights04–01Access rights and cable rights04–02Access rights and cable rights04–03Access rights and cable rights04–04Access rights and cable rights04–05Access rights, cable rights and vegetation maintenance rights04–08Substation connection rights and vegetation maintenance rights04–09Access rights, cable rights and substation connection rights04–10Access rights, cable rights, substation connection rights and vegetation maintenance rights04–11Access rights, cable rights, substation connection rights and vegetation maintenance rights04–12Access rights and cable rights04–13Access rights, cable rights and vegetation maintenance rights04–14Access rights and cable rights04–15Access rights, cable rights and vegetation maintenance rights04–18Access rights and cable rights04–19Cable rights04–20Access rights and cable rights04–22Cable rights04–23Access rights and cable rights04–25Access rights and cable rights04–26Access rights and cable rights04–27Access rights and cable rights04–28Access rights and cable rights04–29Access rights, cable rights and vegetation maintenance rights04–31Access rights and cable rights04–32Access rights and cable rights04–33Access rights and cable rights04–34Access rights and cable rights04–35Cable rights04–35aAccess rights, cable rights and vegetation maintenance rights04–36Access rights and cable rights04–37Access rights and cable rights04–38Access rights and cable rights04–39Access rights, cable rights and vegetation maintenance rights04–40Access rights, cable rights and vegetation maintenance rights04–42Cable rights and vegetation maintenance rights04–43Cable rights and vegetation maintenance rights04–47Access rights and vegetation maintenance rights04–48Vegetation maintenance rights04–51Access rights and cable rights04–52Access rights, cable rights and vegetation maintenance rights04–53Access rights, cable rights and vegetation maintenance rights04–54Vegetation maintenance rights05–02Vegetation maintenance rights06–01Access rights and AIL rights06–02Access rights and AIL rights06–03Access rights and AIL rights06–04Access rights and AIL rights06–05Access rights and AIL rights

SCHEDULE 10 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR THE CREATION OF NEW RIGHTS AND IMPOSITION OF NEW RESTRICTIVE COVENANTS

Compensation enactments

1

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

2

• (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973[^f00058] 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 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5—

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

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

3

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

• (2) In 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 pursuant of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 10 to the Mallard Pass Solar Farm Order 2024; (b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 10 to the Mallard Pass Solar Farm Order 2024) 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 1981) of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act to the acquisition of land under article 19 (compulsory acquisition of land) and as modified by article 27 (modification of Part 1 of the Compulsory Purchase Act 1965), applies to the compulsory acquisition of a right by the creation of a new right 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

• (1) The modifications referred to in paragraph 4(a) are as follows.

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

• (a) the right acquired or to be acquired, or the restriction imposed or to be imposed; or

• (b) the land over which the right is or is to be exercisable, or the restriction is to be enforceable.

• (3) For section 7 of the 1965 Act (measure of compensation in case of severance) substitute—

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

• (4) 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 modified 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.

• (5) Section 11[^f00059] (powers of entry) of the 1965 Act is modified to secure that, as from the date on which 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 19 (compulsory acquisition of land), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant (which is deemed for this purpose to have been created on the date of service of the notice); and sections 11A[^f00060] (powers of entry: further notices of entry), 11B[^f00061] (counter-notice requiring possession to be taken on specified date), 12[^f00062] (penalty for unauthorised entry) and 13[^f00063] (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.

• (6) Section 20 [^f00064] (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or enforcement of the restrictive covenant in question.

• (7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 27(4) (modification of Part 1 of the Compulsory Purchase Act 1965) is so 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 restrictive covenant imposed, subject to compliance with that section as respects compensation.

• (8) For Schedule 2A to the 1965 Act (counter notice requiring purchase of land not in notice to treat substitute—

SCHEDULE 2A (1) (1) This Schedule applies where an acquiring authority serves 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 1981 Act) of the Mallard Pass Solar Farm Order 2024 in respect of the land to which the notice to treat relates. (2) But see article 25(3) (acquisition of subsoil only) of the Mallard Pass Solar Farm Order 2024 which excludes the acquisition of subsoil only from this Schedule. (2) In this Schedule, “house” 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 three months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the authority decides to refer the counter-notice to the Upper Tribunal they must do so within the decision period. (8) If the authority does 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 serves 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 six 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 withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense cause by the giving and withdrawal of the notice. (3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 11 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Plot reference number shown on the Land Plans	(2) Purpose for which temporary possession may be taken	(3) Work No.
01–07	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–08	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–09	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–11	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–12	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–13	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–14	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–15	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–16	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–17	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
01–18	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
02–15	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
02–17	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
03–02	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
03–04	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
03–06	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6
04–46	Works to facilitate access to Work Nos. 1 to 5 including: Creation of accesses from the public highway; Creation of visibility splays; Works to widen and surface the public highway; and Vegetation removal	Work No. 6

SCHEDULE 12 — HEDGEROWS TO BE REMOVED

(1) Area	(2) Number of hedgerow and extent of removal
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 1 of 5), reference H1
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 1 of 5), reference H2
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 1 of 5), reference H3
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 2 of 5), reference H4
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 3 of 5), reference H5
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H6
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H7
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H8
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H9
	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H10
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H11
Rutland County Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H12
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H13
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H14
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H15
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 4 of 5), reference H16
South Kesteven District Council	Removal of that part of the hedgerow shown approximately within the area identified by an orange line on the hedgerows plans (Sheet 5 of 5), reference H17

SCHEDULE 13 — DOCUMENTS AND PLANS TO BE CERTIFIED

(1) Document name	(2) Document reference	(3) Revision number	(4) Date
access and rights of way plans	2.4	1	10 October 2023
book of reference	4.3	8	16 November 2023
claimed public right of way plan	2.8	2	10 October 2023
design and access statement	7.3	2	5 September 2023
environmental statement	environmental statement 6.1 (excluding chapter 5 and 17)	0	24 November 2022
environmental statement	environmental statement 6.1 (chapter 5)	2	15 June 2023
environmental statement	environmental statement 6.1 (chapter 17)	1	15 June 2023
environmental statement	environmental statement 6.2 (excluding appendix 5.1, 10.2 and 10.5)	0	24 November 2022
environmental statement	environmental statement 6.2 (appendix 5.1)	3	10 October 2023
environmental statement	environmental statement 6.2 (appendix 10.2, 10.5)	1	15 June 2023
environmental statement	environmental statement 6.3 (excluding figure 6.4)	0	24 November 2022
environmental statement	environmental statement 6.3 (figure 6.4)	1	15 June 2023
hedgerows plans	2.5	0	24 November 2022
land plans	2.1	4	10 November 2023
outline construction environmental management plan	7.6	10	1 November 2023
outline construction traffic management plan	7.11	6	10 October 2023
outline travel plan	7.14	1	5 September 2023
outline decommissioning environmental management plan	7.8	6	16 November 2023
outline excavated materials management plan	7.12	0	24 November 2022
outline landscape and ecology management plan	7.9	5	10 October 2023
outline operational environmental management plan	7.7	7	16 November 2023
outline employment, skills and supply chain plan	7.10	2	19 September 2023
outline soil management plan	7.12	6	1 November 2023
outline surface water drainage strategy	6.2	1	5 September 2023
outline water management plan	7.13	2	10 November 2023
outline written scheme of investigation	9.40	2	25 October 2023
parameters	environmental statement 6.2 (appendix 5.1)	3	10 October 2023
traffic regulation measures plans – road closures	2.7	2	5 September 2023
traffic regulation measures plans – temporary measures	2.7	2	10 October 2023
works plans	2.2	3	10 October 2023

SCHEDULE 14 — ARBITRATION RULES

Commencing an arbitration

1

The arbitration is deemed to have commenced when a party (“the claimant”) serves a written notice of arbitration on the other party (“the respondent”).

Time periods

2

• (1) All time periods in these arbitration rules are measured in days and include weekends, but not bank or public holidays.

• (2) Time periods are calculated from the day after the arbitrator is appointed which is either—

• (a) the date the arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or

• (b) the date the arbitrator is appointed by the Secretary of State.

Timetable

3

• (1) The timetable for the arbitration is that which is set out in sub-paragraphs (2) to (4) below unless amended in accordance with paragraph 5(3).

• (2) Within 14 days of the arbitrator being appointed, the claimant must provide both the respondent and the arbitrator with—

• (a) a written statement of claim which describes the nature of the difference between the parties, the legal and factual issues, the claimant’s contentions as to those issues, the amount of its claim or the remedy it is seeking;

• (b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.

• (3) Within 14 days of receipt of the claimant’s statements under sub-paragraph (2) by the arbitrator and respondent, the respondent must provide the claimant and the arbitrator with—

• (a) a written statement of defence consisting of a response to the claimant’s statement of claim, its statement in respect of the nature of the difference, the legal and factual issues in the claimant’s claim, its acceptance of any elements of the claimant’s claim and its contentions as to those elements of the claimant’s claim it does not accept;

• (b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports;

• (c) any objection it wishes to make to the claimant’s statements, comments on the claimant’s expert reports (if submitted by the claimant) and explanations of the objections.

• (4) Within seven days of the respondent serving its statements under sub-paragraph (3), the claimant may make a statement of reply by providing both the respondent and the arbitrator with—

• (a) a written statement responding to the respondent’s submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;

• (b) all statements of evidence and copies of documents in response to the respondent’s submissions;

• (c) any expert report in response to the respondent’s submissions;

• (d) any objections to the statements of evidence, expert reports or other documents submitted by the respondent; and

• (e) its written submissions in response to the legal and factual issues involved.

Procedure

4

• (1) The parties’ pleadings, witness statements and expert reports (if any) must be concise. A single pleading must not exceed 30 single-sided A4 pages using 10pt Arial font.

• (2) The arbitrator will make an award on the substantive differences based solely on the written material submitted by the parties unless the arbitrator decides that a hearing is necessary to explain or resolve any matters.

• (3) Either party may, within two days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required.

• (4) Within seven days of receiving the last submission, the arbitrator must notify the parties whether a hearing is to be held and the length of that hearing.

• (5) Within ten days of the arbitrator advising the parties that a hearing is to be held, the date and venue for the hearing are to be fixed by agreement with the parties, save that if there is no agreement the arbitrator must direct a date and venue which the arbitrator considers is fair and reasonable in all the circumstances. The date for the hearing must not be less than 35 days from the date of the arbitrator’s direction confirming the date and venue of the hearing.

• (6) A decision must be made by the arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the arbitrator, then any experts attending the hearing may be asked questions by the arbitrator.

• (7) There is to be no examination or cross-examination of experts, but the arbitrator must invite the parties to ask questions of the experts by way of clarification of any answers given by the experts in response to the arbitrator’s questions. Prior to the hearing in relation to the experts—

• (a) at least 28 days before a hearing, the arbitrator must provide a list of issues to be addressed by the experts;

• (b) if more than one expert is called, they will jointly confer and produce a joint report or reports within 14 days of the issues being provided; and

• (c) the form and content of a joint report must be as directed by the arbitrator and must be provided at least seven days before the hearing.

• (8) Within 14 days of a hearing or a decision by the arbitrator that no hearing is to be held the parties may by way of exchange provide the arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The arbitrator must take these submissions into account in the award.

• (9) The arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within four months of the date on which the arbitrator is appointed, unless both parties otherwise agree to an extension to the date for the award.

• (10) If a party fails to comply with the timetable, procedure or any other direction then the arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before the arbitrator attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure or direction.

• (11) The arbitrator’s award must include reasons. The parties must accept that the extent to which reasons are given must be proportionate to the issues in dispute and the time available to the arbitrator to deliver the award.

Arbitrator’s powers

5

• (1) The arbitrator has all the powers of the Arbitration Act 1996, save where modified in this Schedule.

• (2) There must be no discovery or disclosure, except that the arbitrator is to have the power to order the parties to produce such documents as are reasonably requested by another party no later than the statement of reply, or by the arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders should be made by way of a Redfern Schedule without any hearing.

• (3) Any time limits fixed in accordance with this procedure or by the arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the arbitrator. In the absence of agreement, the arbitrator may vary the timescales or procedure—

• (a) if the arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice and then;

• (b) only for such a period that is necessary to achieve fairness between the parties.

• (4) On the date the award is made, the arbitrator will notify the parties that the award is completed, signed and dated, and that it will be issued to the parties on receipt of cleared funds for the arbitrator’s fees and expenses.

Costs

6

• (1) The costs of the arbitration must include the fees and expenses of the arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the arbitration.

• (2) Where the difference involves connected or interrelated issues, the arbitrator must consider the relevant costs collectively.

• (3) The final award must fix the costs of the arbitration and decide which of the parties are to bear them or in what proportion they are to be borne by the parties.

• (4) The arbitrator must award recoverable costs on the general principle that each party should bear its own costs, having regard to all material circumstances, including such matters as exaggerated claims or defences, the degree of success for different elements of the claims, claims that have incurred substantial costs, the conduct of the parties and the degree of success of a party.

Confidentiality

7

• (1) Hearings in this arbitration are to take place in private.

• (2) Materials, documents, awards, expert reports and any matters relating to the arbitration are confidential and must not be disclosed to any third party without prior written consent of the other party, save for any application to the courts or where disclosure is required under any legislative or regulatory requirement.

SCHEDULE 15 — 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, the following provisions have effect, unless specific provision to the contrary is made in this Schedule 15 or 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 Electricity Act 1989[^f00065], 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; and any 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; in the case of a sewerage undertaker— any drain or works vested in the utility undertaker under the Water Industry Act 1991[^f00066]; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act 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; and any other mains, pipelines or cables that are not the subject of the protective provisions in Parts 2 to 6 of this Schedule;

• “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 Electricity Act 1989; a gas transporter within the meaning of Part 1 of the Gas Act 1986[^f00067]; water undertaker within the meaning of the Water Industry Act 1991; a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991; and an owner or operator of apparatus within paragraph (e) of the definition of that term, 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 closure of and permitting vehicular use on public rights of way), 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 40 (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 40, 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 filling 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 40 (arbitration).

• (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 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 40 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

• (a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus 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[^f00068];

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

• “the electronic communications code” has the same meaning as in section 106 (application of the electronic communications code) of the 2003 Act;

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

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

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

13

The exercise of the powers of article 31 (statutory undertakers) is subject to Part 10 (undertakers’ works affecting electronic communications apparatus) of the electronic communications code.

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 40 (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 (street works in England and Wales) of the 1991 Act; or

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

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 GAS TRANSMISSION PLC AS GAS UNDERTAKER

Application

17

• (1) For the protection of National Gas as referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and National Gas.

• (2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Gas, where the benefit of this Order is transferred or granted to another person under article 35 (consent to transfer the benefit of the Order)—

• (a) any agreement of the type mentioned in sub-paragraph (1) has effect as if it had been made between National Gas and the transferee or grantee (as the case may be); and

• (b) written notice of the transfer or grant must be given to National Gas on or before the date of that transfer or grant.

• (3) Sub-paragraph (2) does not apply where the benefit of the Order is transferred or granted to National Gas (but without prejudice to 27(3)(b)).

Interpretation

18

In this Part of this Schedule—

• “1991 Act” means the New Roads and Street Works Act 1991;

• “acceptable credit provider” means a bank or financial institution with a credit rating that is not lower than: (i) “A-” if the rating is assigned by Standard & Poor’s Ratings Group or Fitch Ratings: and (ii) “A3” if the rating is assigned by Moody’s Investors Services Inc.;

• “acceptable insurance” means general third party liability insurance effected and maintained by the undertaker with a combined property damage and bodily injury limit of indemnity of not less than £50,000,000.00 (fifty million pounds) per occurrence or series of occurrences arising out of one event. Such insurance will be maintained (a) during the construction period of the authorised works; and (b) after the construction period of the authorised works in respect of any use and maintenance of the authorised development by or on behalf of the undertaker which constitute specified works and arranged with an insurer whose security/credit rating meets the same requirements as an “acceptable credit provider”, such insurance will include (without limitation)— a waiver of subrogation and an indemnity to principal clause in favour of National Gas; pollution liability for third party property damage and third party bodily damage arising from any pollution/contamination event with a (sub)limit of indemnity of not less than £10,000,000.00 (ten million pounds) per occurrence or series of occurrences arising out of one event or £20,000,000.00 (twenty million pounds) in aggregate;

• “acceptable security” means either— a parent company guarantee from a parent company in favour of National Gas to cover the undertaker’s liability to National Gas to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Gas and where required by National Gas, accompanied with a legal opinion confirming the due capacity and authorisation of the parent company to enter into and be bound by the terms of such guarantee); or a bank bond or letter of credit from an acceptable credit provider in favour of National Gas to cover the undertaker’s liability to National Gas for an amount of not less than £10,000,000.00 (ten million pounds) per asset per event up to a total liability cap of £50,000,000.00 (fifty million pounds) (in a form reasonably satisfactory to National Gas);

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

• “apparatus” means any mains, pipes or other apparatus belonging to or maintained by National Gas for the purposes of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of National Gas 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;

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

• “commence” and “commencement” in this Part of this Schedule will include any below ground surveys, monitoring, ground work operations or the receipt and erection of construction plant and equipment;

• “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 or replace existing easements, agreements, enactments and other such interests so as to secure land rights and interests as are necessary to carry out, maintain, operate and use the apparatus in a manner consistent with the terms of this Part of this Schedule;

• “functions” includes powers and duties;

• “ground mitigation scheme” means a scheme approved by National Gas (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, will require the undertaker to submit for National Gas’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” will include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of National Gas; construct, use, repair, alter, inspect, renew or remove the apparatus;

• “National Gas” means National Gas Transmission plc (Company Number 02006000) whose registered office is at National Gas House, Warwick Technology Park, Gallows Hill, Warwick, CV34 6DA or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;

• “Network Code” means the network code prepared by National Gas pursuant to Standard Special Condition A11(3) of its Gas Transporter’s Licence, which incorporates the Uniform Network Code, as defined in Standard Special Condition A11(6) of National Gas’s Transporters Licence, as both documents are amended from time to time;

• “Network Code Claims” means any claim made against National Gas by any person or loss suffered by National Gas under the Network Code arising out of or in connection with any failure by National Gas to make gas available for off take at, or a failure to accept gas tendered for delivery from, any entry point to or exit point from the gas national transmission system as a result of the authorised works or any costs and/or expenses incurred by National Gas as a result of or in connection with, it taking action (including purchase or buy back of capacity) for the purpose of managing constraint or potential constraint on the gas national transmission system which may arise as a result of the authorised works;

• “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;

• “parent company” means a parent company of the undertaker acceptable to and which will have been approved by National Gas acting reasonably;

• “specified works” means any of the authorised works or activities undertaken in association with the authorised works which— will or may be situated over, or within 15 metres measured in any direction of any apparatus the removal of which has not been required by the undertaker under paragraph 23(2) or otherwise; may in any way adversely affect any apparatus the removal of which has not been required by the undertaker under paragraph 23(2) or otherwise; and/or includes any of the activities that are referred to in paragraph 8 of T/SP/SSW/22 (National Gas’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of National Gas, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW/22”; and

• “undertaker” means the undertaker as defined in article 2(1) of this Order.

On Street Apparatus

19

Except for paragraphs 20 (apparatus of National Grid in stopped up streets), 25 (retained apparatus: protection), 26 (expenses) and 27 (indemnity) of this Schedule which will apply in respect of the exercise of all or any powers under this Order affecting the rights and apparatus of National Grid, the other provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Gas are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Apparatus of National Gas in stopped up streets

20

• (1) Where any street is stopped up under article 8 (street works), 9 (power to alter layout, etc. of streets), 10 construction and maintenance of altered streets) or 11 (temporary closure of and permitting vehicular use on public rights of way), if National Gas has any apparatus in the street or accessed via that street National Gas has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up or temporary closure and the undertaker must grant to National Gas, or procure the granting to National Gas of, legal easements reasonably satisfactory to National Gas in respect of such apparatus and access to it prior to the stopping up or temporary closure of any such street or highway but nothing in this paragraph affects any right of the undertaker or National Gas to require the removal of that apparatus under paragraph 23 or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph 25.

• (2) Notwithstanding the temporary closure or diversion of any highway under the powers of article 11 (temporary closure of and permitting vehicular use on public rights of way), National Gas is at liberty at all times to take all necessary access across any such temporarily closed highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the temporary closure or diversion was in that highway.

Protective works to buildings

21

The undertaker, in the case of the powers conferred by article 17 (protective works to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Gas.

Acquisition of land

22

• (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 may not (a) appropriate or acquire or take temporary possession of any land or apparatus or (b) appropriate, acquire, extinguish, interfere with or override any easement, other interest or right and/or apparatus of National Gas otherwise than by agreement.

• (2) As a condition of an agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised works (or in such other timeframe as may be agreed between National Gas and the undertaker) that is subject to the requirements of this Part of this Schedule that will cause any conflict with or breach the terms of any easement or other legal or land interest of National Gas or affect the provisions of any enactment or agreement regulating the relations between National Gas 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 Gas reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Gas and the undertaker acting reasonably and which must be no less favourable on the whole to National Gas unless otherwise agreed by National Gas, and it will 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 authorised works.

• (3) Save where otherwise agreed in writing between National Gas and the undertaker, the undertaker and National Gas 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 Gas and/or other enactments relied upon by National Gas as of right or other use in relation to the apparatus, then the provisions in this Schedule will prevail.

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

Removal of apparatus

23

• (1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in or possesses temporarily 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 Gas to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Gas in accordance with sub-paragraphs (2) to (5).

• (2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Gas 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 Gas reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), secure any necessary consents for the alternative apparatus and afford to National Gas to its satisfaction (taking into account paragraph 24(1) below) the necessary facilities and rights—

• (a) for the construction of alternative apparatus in other land of or land secured by the undertaker; and

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

• (3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Gas may in its sole discretion, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances to assist the undertaker to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation must not extend to the requirement for National Gas to use its compulsory purchase powers to this end unless it elects to so do.

• (4) Any alternative apparatus to be constructed in land of or land secured by the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between National Gas and the undertaker.

• (5) National Gas must, after the alternative apparatus to be provided or constructed has been agreed, and subject to a written diversion agreement having been entered into between the parties and the grant to National Gas 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

24

• (1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Gas facilities and rights in land for the construction, use, maintenance and protection of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the undertaker and National Gas and must be no less favourable on the whole to National Gas than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Gas.

• (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 less favourable on the whole to National Gas than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject the matter may be referred to arbitration in accordance with paragraph 31 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Gas as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection

25

• (1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Gas a plan and, if reasonably required by National Gas, a ground monitoring scheme in respect of those works.

• (2) In relation to specified works the plan to be submitted to National Gas under sub-paragraph (1) must include a method statement and describe—

• (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; and

• (f) any intended maintenance regimes.

• (3) The undertaker must consider the existing pipeline’s cathodic protection system and provide an earthing assessment where required by National Gas.

• (4) The undertaker must not commence any works to which sub-paragraphs (1) and (2) apply until National Gas has given written approval of the plan so submitted.

• (5) Any approval of National Gas required under sub-paragraph (4)—

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

• (b) must not be unreasonably withheld.

• (6) In relation to any work to which sub-paragraphs (1) and/or (2) apply, National Gas may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage for the provision of protective works or for the purpose of providing or securing proper and convenient means of access to any apparatus.

• (7) Works executed under sub-paragraph (1) or (2) must be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (6), as approved or as amended from time to time by agreement between the undertaker and National Gas and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (6) or (9) by National Gas for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Gas will be entitled to watch and inspect the execution of those works.

• (8) Where National Gas requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to National Gas’s satisfaction prior to the commencement of any specified works for which protective works are required and National Gas must give notice of its requirement for such works within 42 days of the date of submission of a plan pursuant to this paragraph (except in an emergency).