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The A122 (Lower Thames Crossing) Development Consent Order 2025

Type Statutory-Instrument

Publication 2025-03-25

Last updated 2025-11-05

State In force

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SCHEDULE 12 — ROAD USER CHARGING PROVISIONS FOR USE OF THE LOWER THAMES CROSSING

Interpretation

1

(1) In this Schedule—

“the 2013 Order” means the A282 Trunk Road (Dartford-Thurrock Crossing Charging Scheme) Order 2013[^f00171] as may be amended from time to time;

“custodian” means a person authorised in writing by the Secretary of State to keep in storage motor vehicles which are removed under this Schedule;

“Dartford-Thurrock Crossing” means the road which is a length of the A282 trunk road starting at a point below the north face of the bridge carrying Crossways Boulevard University Way (A206) over the trunk road at junction 1A at Dartford, in the County of Kent, and extending northwards to a point approximately 300 metres north of where it crosses London Road at West Thurrock, in the County of Essex and carried through twin tunnels beneath the River Thames and on the Queen Elizabeth II bridge over the River Thames;

“Enforcement Regulations” means the Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013[^f00172] as may be amended from time to time;

“local resident” means a person who permanently resides in the borough of Gravesham or Thurrock;

“motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads; and

“replacement Dartford-Thurrock Charging Order” means where the 2013 Order has been revoked, any order made under Part 3 of the 2000 Act or the provisions of any other enactment that provides for the imposition of road user charging in relation to the Dartford-Thurrock Crossing as may be amended from time to time.

(2) References to the 2013 Order, a replacement Dartford-Thurrock Charging Order and the Enforcement Regulations are, for the purposes of this Schedule, to be construed as a reference to those provisions as amended, substituted or replaced, and with such modifications as are required in those circumstances.

Application of the Enforcement Regulations

2

The Enforcement Regulations apply to this Schedule as though it were a charging scheme for the purposes of those regulations.

Imposition of charges for the tunnel area

3

(1) From the day the tunnel area is open for traffic, the Secretary of State may charge each single use of the tunnel area by a motor vehicle the amount specified in sub-paragraph (2).

(2) Subject to sub-paragraph (3), the charge payable to the Secretary of State under sub-paragraph (1) will be—

(a) subject to article 4(5) of the 2013 Order, the amount in column 4 of Schedule 2 to the 2013 Order in respect of the classes of motor vehicle specified in column 2 of Schedule 2 to that Order; or

(b) the amount caused to be charged if that motor vehicle uses the Dartford-Thurrock Crossing under any replacement Dartford-Thurrock Charging Order.

(3) For the purposes of assessing the amount payable under sub-paragraph (2), any agreements relating to advanced payments or discounts in respect of the use of the Dartford Thurrock Crossing are to be disregarded.

(4) Subject to sub-paragraph (5), a vehicle is exempt from the road user charge under paragraph (1) where that motor vehicle falls—

(a) within the definitions in paragraph 1 of Schedule 3 to the 2013 Order; or

(b) within an exemption in any replacement Dartford-Thurrock Charging Order.

(5) For the purposes of sub-paragraph (4), a reference in paragraph 1(6) of Schedule 3 to the 2013 Order or any exemption in any replacement Dartford-Thurrock Charging Order to the Dartford-Thurrock Crossing is to be construed as reference to the tunnel area.

Payment of charges

4

(1) A road user charge imposed by paragraph 3(1) must be paid in accordance with the provisions of this paragraph.

(2) A road user charge must be paid in respect of a particular motor vehicle and for a single crossing.

(3) A motor vehicle referred to in sub-paragraph (2) must be identified by its registration mark, and the payer of the charge must specify the registration mark of the motor vehicle in respect of which that charge is paid.

(4) A road user charge imposed under paragraph 3(1) must be paid by such means as the Secretary of State may specify on its website or the equivalent electronic publication as being acceptable.

Payments for local residents

5

(1) If a road user charge is imposed under paragraph 3(1), the Secretary of State may enter into an agreement with a local resident (a “local resident’s agreement”) under which, on such terms as may be provided by the agreement, charges for a motor vehicle to be used or kept on the tunnel area may be paid.

(2) A local resident’s agreement—

(a) may relate to such use or keeping on such number of occasions, or during such period, as may be provided by it; and

(b) must provide for a reduction in the road user charge payable under paragraph 3(1) in accordance with sub-paragraph (3).

(3) The reduction referred to in sub-paragraph (2)(b) must reflect the reduction provided to the residents of the borough of Dartford and Thurrock in any agreements relating to payments or discounts in relation to the Dartford-Thurrock Crossing by virtue of the 2013 Order or any replacement Dartford-Thurrock Charging Order.

(4) A local resident’s agreement offered by the Secretary of State under sub-paragraph (1) must be offered on the same terms to all local residents seeking to enter into such an agreement.

Other payments

6

(1) If a road user charge is imposed under paragraph 3(1), the Secretary of State may enter into an agreement with persons (a “payment agreement”) under which, on such terms as may be provided by the agreement, charges for a motor vehicle to be used or kept on the tunnel area may be paid.

(2) An agreement under sub-paragraph (1)—

(a) may relate to such use or keeping on such number of occasions, or during such period, as may be provided by it; and

(b) may provide for a reduction in charge the payable under paragraph 3(1) in accordance with sub-paragraph (3).

(3) The reduction referred to in sub-paragraph (2)(b) must reflect the reduction provided in any agreements relating to payments or discounts in relation to the Dartford-Thurrock Crossing by virtue of the 2013 Order or any replacement Dartford-Thurrock Charging Order.

(4) A payment agreement offered by the Secretary of State under sub-paragraph (1) must be offered on the same terms to all persons seeking to enter into such an agreement.

Penalty charge for non-payment of road user charge

7

(1) A penalty charge will be payable where—

(a) a relevant motor vehicle has been used on the tunnel area in circumstances in which a road user charge is imposed by paragraph 3(1);

(b) that charge has not been paid in full in the manner in which and within the time by which it is required to be paid by paragraph 3.

(2) A penalty charge payable by virtue of sub-paragraph (1) must be paid within the period (“the payment period”) of 28 days beginning with the date on which a penalty charge notice is served under regulation 7 of the Enforcement Regulations and in a manner specified in the penalty charge notice.

(3) The amount of a penalty charge payable in accordance with sub-paragraph (1) is the penalty charge for non-payment of a road user charge specified in Part 1 of Schedule 4 to the 2013 Order or any provision of any replacement Dartford Thurrock Crossing Charging Order but, if the penalty charge is paid before the end of the fourteenth day of the payment period, the amount will be reduced by one half.

(4) Where a charge certificate is issued in accordance with regulation 17(1) of the Enforcement Regulations, the amount of the penalty charge to which it relates will be increased by one half.

(5) The road user charge under paragraph 3(1) will be payable in addition to the charge under sub-paragraph (1) where the 2013 Order or any replacement Dartford-Thurrock Charging Order requires any penalty charge to be payable in addition to a road user charge for use of the Dartford Thurrock Crossing.

Exercise of powers

8

(1) The Secretary of State may authorise in writing a person to exercise any one or more of the powers in paragraphs 9 to 13 of this Schedule.

(2) Any person authorised by the Secretary of State in accordance with sub-paragraph (1) is an authorised person within the meaning of regulation 21 of the Enforcement Regulations.

Examination of motor vehicles

9

The Secretary of State or a person authorised by the Secretary of State may examine a motor vehicle whilst it is on a road to ascertain if any of the circumstances described in regulation 22 of the Enforcement Regulations exists.

Entering motor vehicles

10

The Secretary of State or a person authorised by the Secretary of State may enter a motor vehicle whilst it is on a road where they have reasonable grounds for suspecting that any of the circumstances described in regulation 23(1) of the Enforcement Regulations exists.

Seizure

11

The Secretary of State or a person authorised by the Secretary of State may seize anything (if necessary by detaching it from a motor vehicle) and detain it as evidence of the failure to pay a charge under paragraph 3(1).

Immobilisation of motor vehicles

12

(1) Provided that—

(a) none of the circumstances in paragraph (2) of Regulation 25 of the Enforcement Regulations apply; and

(b) the conditions in paragraph (3) of that Regulation apply,

the Secretary of State or a person authorised by the Secretary of State may immobilise a motor vehicle in accordance with paragraphs (4) and (5) of that Regulation.

(2) A motor vehicle to which an immobilisation device has been fixed in accordance with the provisions of this paragraph—

(a) may be released only by or under the direction of the Secretary of State or a person authorised by the Secretary of State; and

(b) subject to paragraph (a), will be released—

(i) if all outstanding charges under paragraph 7 are paid; and

(ii) if a penalty charge of the amount specified for the release of an immobilised motor vehicle under article 9(1)(a) of the 2013 Order or any equivalent provision of any replacement Dartford-Thurrock Crossing Charging Order is so paid.

Removal, storage and disposal of motor vehicles

13

(1) Provided Regulation 27(1)(a) or (b) of the Enforcement Regulations is satisfied, the Secretary of State or a person authorised by the Secretary of State may remove a motor vehicle and deliver it to a custodian for storage.

(2) The custodian may dispose of the motor vehicle and its contents in the circumstances described in, and subject to the provisions of, Regulation 28 of the Enforcement Regulations.

(3) Where a motor vehicle has been removed and delivered into the custody of a custodian in accordance with paragraph (1) the custodian may (whether or not any claim is made under Regulation 30 or 31 of the Enforcement Regulations) recover from the person who was the keeper of the motor vehicle when the motor vehicle was removed—

(a) all outstanding charges under paragraph 3(1);

(b) all penalty charges that are outstanding in relation to the motor vehicle;

(c) a penalty charge of the amount specified for the return of a motor vehicle under article 9(1)(b) of the 2013 Order or any equivalent provision of any replacement Dartford-Thurrock Charging Order;

(d) a penalty charge of the amount specified for storage of a motor vehicle for each complete day or part of a day on which it has been held by the custodian under article 9(1)(c) of the 2013 Order or any equivalent provision of any replacement Dartford-Thurrock Charging Order; and

(e) if the motor vehicle has been disposed of, a penalty charge of the amount specified for the disposal of a vehicle under article 9(1)(d) of the 2013 Order or any equivalent provision of any replacement Dartford-Thurrock Crossing Charging Order.

SCHEDULE 13 — LOWER THAMES CROSSING BYELAWS

PART 1 — PRELIMINARY

Citation

1

These byelaws may be cited as the Lower Thames Crossing Byelaws 2025 and are deemed to have been made by the undertaker under article 51(1) (byelaws relating to the tunnel area) of the A122 (Lower Thames Crossing) Development Consent Order 2025 and confirmed by the Secretary of State as provided for by article 51(2) of that Order.

Interpretation

2

(1) In these byelaws unless the context otherwise requires—

“authorised person” means– a person acting in the course of that person’s duties who— is an employee, agent, contractor or sub-contractor of the undertaker; or is authorised by the undertaker to exercise one or more of its functions under the A122 (Lower Thames Crossing) Development Consent Order 2025; or a constable, Police Community Support Officer, an officer of the Driver and Vehicle Standards Agency, an officer of the Health and Safety Executive, a person authorised for the purposes of section 44 (powers of fire-fighters etc. in an emergency etc.) of the Fire and Rescue Services Act 2004, a person accredited by or under section 41 (accreditation under community safety accreditation schemes) of the Police Reform Act 2002, a traffic officer, acting in the execution of that person’s duties within the tunnel area;

“the byelaws” means these byelaws;

“motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads;

“notice” includes a sign, signal and a digital or other display, and in appropriate circumstances, an audible announcement;

“tobacco product” has the same meaning as given in section 1 of the Tobacco Products Duty Act 1979[^f00173] and includes a vaporiser;

“traffic officer” means an individual designated under section 2 (designation of traffic officers) of the 2004 Act;

“trailer” means a vehicle (including a horse box) designed or adapted to be towed by a motor vehicle;

“the tunnel approaches” means the southern and northern approaches to the tunnel between the barrier gantry and the portal shown on the tunnel area plan;

“the tunnel area” means the extent of the public highway to be comprised in and along the tunnel and the tunnel approaches and shown on the tunnel area plan;

“the tunnel area plan” means the plan of that description listed in Schedule 16 (documents to be certified) certified by the Secretary of State as the tunnel area plan for the purposes of the A122 (Lower Thames Crossing) Development Consent Order 2025;

“tunnel equipment” includes plant and machinery, and any emergency, safety or communications equipment;

“tunnel infrastructure” means the structure (including the carriageway) of the tunnel area;

“tunnel” means the tunnel under the River Thames connecting Gravesend to Thurrock constructed under the A122 (Lower Thames Crossing) Development Consent Order 2025 and shown as the tunnel on the tunnel area plan;

“the undertaker” means National Highways Limited (Company No. 09346363) of Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ; and

“vaporiser” means an electronic device that can be used to deliver nicotine or other substances to a person inhaling from the device.

(2) The Interpretation Act 1978[^f00174] applies to the interpretation of these byelaws as it applies to the interpretation of an Act of Parliament.

PART 2 — RESTRICTIONS IN THE TUNNEL AREA

General safety

3

(1) A person must not operate, obstruct, interfere with or stop any tunnel equipment except—

(a) by means of any of the controls intended for use by that person; or

(b) in an emergency and by means of equipment on or near which is a notice indicating that it is to be used in an emergency.

(2) A person must not place, throw, drop or trail anything which is capable of injuring or endangering any person or damaging any property in the tunnel area.

(3) A person must not—

(a) allow or cause to be allowed a motor vehicle to stop or to remain at rest in any part of the tunnel area unless directed to do so by an authorised person;

(b) obstruct or in any way interfere with the tunnel area;

(c) without reasonable cause, activate, use or interfere with any emergency, safety or communications equipment within the tunnel area.

Traffic regulation

4

(1) A person must not enter the tunnel area on foot without authorisation.

(2) A person must not use or cause to be used within the tunnel area—

(a) a pedal cycle (whether electric or not), tricycle, barrow, cart, buggy, pedicab, rickshaw, vehicle used as a personal transporter, or human or animal drawn means of conveyance except if it is conveyed as the load or part of the load of a motor vehicle;

(b) a motor vehicle with a load unless the load carried by the motor vehicle is at all times contained or secured (if necessary by physical restraint other than its own weight) and is in such a position that neither danger nor nuisance is caused or is likely to be caused to a person or property by reason of the load or any part of the load falling or being thrown from the motor vehicle;

(i) has insufficient fuel or power for the journey to be completed in the tunnel area without the need for additional fuel or power; or

(ii) by reason of its condition is likely to break down or is in such condition as is likely to injure persons or damage property.

(3) A person must not—

(a) take into the tunnel area an animal unless the animal is enclosed in a motor vehicle or trailer; or

(b) release any animal from a motor vehicle or trailer in the tunnel area.

(4) A person must not abandon a motor vehicle in the tunnel area except in an emergency as directed by an authorised person.

(5) A driver of a motor vehicle must not drive in the tunnel area at a speed of less than ten miles per hour except where the driver is prevented from driving at or above ten miles per hour on account of the traffic flow.

Breakdowns and falling loads

5

(1) No driver of or passenger in a motor vehicle which has broken down may carry out repairs to or refuel a motor vehicle in the tunnel area without the permission of an authorised person.

(2) A driver of a motor vehicle which has broken down in the tunnel area must—

(a) immediately notify an authorised person of the breakdown; and

(b) switch on the motor vehicle’s hazard lights.

(3) A driver of a motor vehicle which has shed its load in full or in part in the tunnel area such that it has caused, or may cause, an obstruction or other hazard to users of the tunnel area must—

(a) not attempt to reclaim the load;

(b) immediately inform an authorised person of the loss of the load and of its approximate location; and

Restrictions on conduct in the tunnel area

6

(1) A driver of a motor vehicle must not sleep within the tunnel area.

(2) A person must not—

(a) enter, attempt to enter or remain in any part of the tunnel area where there is a notice prohibiting or restricting access;

(b) climb upon, remove or damage (whether deliberately or negligently) any tunnel infrastructure or tunnel equipment;

(c) remove, move or otherwise interfere with the tunnel or any machinery, apparatus, tools or other things in use or intended for use in connection with the tunnel or the tunnel approaches;

(d) post a bill, placard or notice on any tunnel infrastructure or tunnel equipment;

(e) write, print, draw or paint on or cut, mark or stamp any tunnel infrastructure or tunnel equipment;

(f) fix anything to any tunnel equipment or tunnel infrastructure;

(g) spit, urinate or defecate in the tunnel area;

(h) leave litter or waste in the tunnel area;

(i) move, alter, deface or otherwise interfere with any notice belonging to the undertaker which is exhibited or placed in the tunnel area;

(j) loiter in the tunnel area if asked to leave by an authorised person;

(k) obstruct an authorised person acting in the course of their duties;

(l) smoke or suck a tobacco product or carry a tobacco product or any other item that is alight in the tunnel area;

(m) operate a music or sound system at such volume as to cause nuisance to users of the tunnel area;

(n) unnecessarily, inappropriately or excessively use a car horn, klaxon or lights (including car lamps) in the tunnel area; or

(o) without prejudice to any other requirement of these byelaws, act in any way as to cause a nuisance in the tunnel area.

PART 3 — ENFORCEMENT

Compliance with instructions, etc.

7

(1) A person reasonably suspected by an authorised person of breaching or attempting to breach a byelaw must immediately give that person’s name and address when requested to do so by an authorised person.

(2) The authorised person requesting details under byelaw (1) must state the nature of the suspected breach of the byelaw in general terms at the time of the request.

(3) A person in the tunnel area must carry out the reasonable instructions of an authorised person or the requirements of a notice displayed by the undertaker.

(4) A person acting in compliance with the instructions of an authorised person does not commit a breach of the byelaw which otherwise prohibits the act.

(5) A person is not subject to a penalty for breach of a byelaw by disobeying a notice unless it is proved to the satisfaction of the Court before which the complaint is laid that the notice referred to in the particular byelaw was displayed.

Identification of authorised persons

8

An authorised person who is exercising any power conferred on an authorised person by any of the byelaws must produce a form of identification which includes the name of the authorised person’s employer and a means of identifying the authorised person, when requested to do so.

Breaches by authorised persons

9

An authorised person acting in the course of the authorised person’s duties is not liable for a breach of a byelaw.

Attempted breach

10

(1) A person who attempts to breach a byelaw is liable to the same penalty as a person who breaches a byelaw.

(2) An authorised person may prevent the driver of a motor vehicle from gaining access to the tunnel area if the appointed person has reasonable cause to believe the driver of the motor vehicle is contravening, or will contravene if allowed to proceed, any of the byelaws.

SCHEDULE 14 — PROTECTIVE PROVISIONS

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

Application

1

For the protection of the utility undertakers referred to in this Part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.

Interpretation

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 no less efficient than previously;

“apparatus” means—in the case of an electricity undertaker, electric lines or electrical plant (as defined in section 64 of the Electricity Act 1989[^f00175]), 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 within the meaning of Part 1 of the Gas Act 1986[^f00176] 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; andin the case of a sewerage undertaker—any drain or works vested in the utility undertaker under the Water Industry Act 1991[^f00177]; andany sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works)[^f00178] of that Act or an agreement to adopt made under section 104 (agreement to adopt sewers, drains or sewage disposal works at a future date)[^f00179] of that Act,and includes a sludge main, disposal main (within the meaning of section 219 (general interpretation) of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works,

and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties;

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

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

“utility undertaker” means—any licence holder within the meaning of Part 1 (electricity supply) of the Electricity Act 1989;a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986;a water undertaker within the meaning of the Water Industry Act 1991; anda sewerage undertaker within the meaning of Part 1 (preliminary) of the Water Industry Act 1991,

for the area of the authorised development, and in relation to any apparatus, means the utility undertaker to whom it belongs or by whom it is maintained.

On street apparatus

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 (street works in England and Wales) of the 1991 Act.

Apparatus in stopped up streets

4

(1) Where any street is stopped up under article 14 (permanent stopping up of streets and private means of access), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.

(2) Regardless of the temporary closure, alteration, diversion and restriction of use of any highway under the powers conferred by article 12 (temporary closure, alteration, diversion and restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up 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 stopping up or diversion was in that highway.

Protective works to buildings

5

The undertaker, in the case of the powers conferred by article 20 (protective work to land and buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

6

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.

Removal of apparatus

7

(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 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 must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (6).

(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 28 days’ 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 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 must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best 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 64 (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 64, and after the grant to the utility undertaker 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.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker in question that the undertaker 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 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) If the utility undertaker in question fails either reasonably to approve, or to provide reasons for its failure to approve along with an indication of what would be required to make acceptable, any proposed details relating to required removal works under sub-paragraph (2) within 28 days of receiving a notice of the required works from the undertaker, then such details are deemed to have been approved.

(8) For the avoidance of doubt, any such “deemed consent” under sub-paragraph (7) does not extend to the actual undertaking of the removal works, which remains the sole responsibility of the utility undertaker or its contractors.

(9) No part of this paragraph, or this Schedule, apply to the disused pipeline (comprised in Works Nos. G8 and G9) in plots 37-05, 38-04, 38-06, 38-07, 38-08, 38-11, 38-22, 38-26, 38-27, 38-31, 38-32, 38-36, 38-39, 38-41, 38-42, 38-43, 38-47, 38-64, 39-03, 39-07, 39-10, 39-23, 39-24, 39-47, 39-60, 39-62, 39-67, 39-68, 39-77, 39-78, 39-79, 40-09, 40-20, 40-21, 40-22 and 40-23 as shown in the land plans unless otherwise agreed with the City of London Corporation.

Facilities and rights for alternative apparatus

8

(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 are to 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 64 (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.

Retained apparatus

9

(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 7(2) (removal of apparatus), the undertaker must submit to the utility undertaker in question a plan of the works to be executed.

(2) Those works must be executed only in accordance with the plan 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 under sub-paragraph (1) is 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 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(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 instead of the plan previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.

Expenses and costs

10

(1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably 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 7(2) (removal of apparatus).

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 64 (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) must be reduced by the amount of that excess.

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

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

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

(5) An amount which apart from this sub-paragraph would be payable to 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.

11

(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 5 (protective work to buildings) or 7(2) (removal of apparatus), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of 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 undertaker,

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

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

(3) Nothing in sub-paragraph (1) imposes any liability on the undertaker 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.

(4) 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 who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Co-operation

12

Where in consequence of the proposed construction of any part of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) (removal of apparatus) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9 (retained apparatus), the undertaker must use best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

13

Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and a utility undertaker 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

Application

14

For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.

Interpretation

15

In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003[^f00180];

“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)[^f00181] of the 2003 Act;

“electronic communications code network” means—so much of an electronic communications network or infrastructure 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; andan electronic communications network which the undertaker 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;

“infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7(2) (infrastructure system) of that code; and

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

16

The exercise of the powers conferred by article 37 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

17

(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 reasonable 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 who, if withholding 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 64 (arbitration).

(5) 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 damages, or any interruptions, caused by electro-magnetic interference arising from the construction or use of the authorised development.

(6) 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 DRAINAGE AUTHORITIES

Application

18

The provisions of this Part have effect for the protection of the drainage authority unless otherwise agreed in writing between the undertaker and the drainage authority.

Interpretation

19

In this Part of this Schedule—

“construction” includes execution, placing, altering, replacing, relaying and removal; and “construct” and “constructed” must be construed accordingly;

“drainage authority” means in relation to an ordinary watercourse, the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc. in watercourses)[^f00182] of the Land Drainage Act 1991;

“drainage work” means any ordinary watercourse and includes any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence in connection with an ordinary watercourse which is the responsibility of the drainage authority;

“ordinary watercourse” has the meaning given by section 72 (interpretation) of the Land Drainage Act 1991;

“plans” includes any information reasonably required by the drainage authority including location details, grid references, sections, drawings, specifications, assessments and method statements; and

“specified work” means any of the following works carried out in relation to any ordinary watercourse—erecting any mill dam, weir or other similar obstruction to the flow of the watercourse, or raising or otherwise altering any such obstruction;the construction or alteration of a bridge or other structure;erecting a culvert in the watercourse; oraltering a culvert in a manner that would be likely to affect the flow of the watercourse.

Approval of plans

20

(1) Before commencing construction of a specified work, the undertaker must submit to the drainage authority plans of the specified work and such further particulars available to it as the drainage authority may within 14 days of the submission of the plans reasonably request.

(2) The undertaker must not commence construction of the specified work until approval, unconditionally or conditionally, has been given as provided in this paragraph.

(3) A specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority or determined under paragraph 28 (disputes).

(4) Any approval of the drainage authority required under this paragraph—

(a) must not be unreasonably withheld or delayed;

(b) is deemed to have been given if it is neither given nor refused within 28 days of the submission of the plans for approval, or submission of further particulars (where required by the drainage authority under sub-paragraph (1)) whichever is the later; and

(c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, ordinary watercourse or for the prevention of flooding.

(5) Any refusal under this paragraph must be accompanied by a statement of the reasons for refusal.

21

Without limiting paragraph 20 (approval of plans), the requirements which the drainage authority may make under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

(a) to safeguard any drainage work against damage by reason of any specified work; or

(b) to secure that the efficiency of any drainage work for flood defence and land drainage purposes is not impaired, and that the risk of flooding is not otherwise increased, by reason of any specified work.

Specified and protective works

22

(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 21, must be constructed—

(a) without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and

(b) to the reasonable satisfaction of the drainage authority, and an officer of the drainage authority is entitled to watch and inspect the construction of such works at all reasonable times and on reasonable notice.

(2) The undertaker must give to the drainage authority—

(a) not less than 14 days’ notice in writing of its intention to commence construction of any specified work; and

(b) notice in writing of its completion not later than 7 days after the date of completion.

(3) If the drainage authority reasonably requires, the undertaker must construct all or part of the protective works so that they are in place before the construction of the specified work to which the protective works relate.

(4) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the drainage authority may by notice in writing require the undertaker at the undertaker’s expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is agreed, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires.

(5) Subject to sub-paragraph (6), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any reasonable expenditure incurred by it in so doing is recoverable from the undertaker.

(6) In the event of any dispute as to whether sub-paragraph (4) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the drainage authority must not except in an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph 28 (disputes).

Maintenance of drainage works

23

(1) Subject to sub-paragraph (5), the undertaker must from the commencement of the construction of the specified work until the date falling 12 months from the date of completion of the specified work maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation on land held by the undertaker for the purpose of or in connection with the specified work, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

(2) If any drainage work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice in writing require the undertaker to repair and restore the work, or any part of the work, or (if the undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove the specified work and restore the site to its former condition, to such extent and within such limits as the drainage authority reasonably requires.

(3) Subject to sub-paragraph (4) and paragraphs 25 and 26 if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is reasonably necessary for such compliance and may recover any reasonable expenditure reasonably incurred by it in so doing from the undertaker.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the drainage authority must not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph 28 (disputes).

(5) This paragraph does not apply to—

(a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not prevented by this Order from so doing; and

(b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule provided that any obstruction is removed as soon as reasonably practicable.

Expenses and indemnity

24

Subject to paragraphs 25 and 26 and sub-paragraph 23(5)(b) (maintenance of drainage works), if, by reason of the construction of a specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes or land drainage is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker as soon as reasonably practicable to the reasonable satisfaction of the drainage authority and, if the undertaker fails to do so, the drainage authority may make good the impairment or damage and recover from the undertaker the expense reasonably incurred by it in doing so.

25

The undertaker must make reasonable compensation for costs, charges and expenses which the drainage authority may reasonably incur in—

(a) the examination or approval of plans under this Part of this Schedule; and

(b) inspecting the construction of the specified work or any protective works required by the drainage authority under this Part of this Schedule; and

(c) subject at all times to receiving the prior written approval of the undertaker, in carrying out any surveys or tests by the drainage authority which are reasonably required in connection with the construction of the specified work.

26

(1) Without limiting the other provisions of this Part, the undertaker must make reasonable compensation to the drainage authority from all claims, demands, proceedings, costs, damages, expenses or loss, which may be made or taken against, recovered from, or incurred by, the drainage authority by reason of—

(a) any damage to any drainage work;

(b) any raising or lowering of the water table in land adjoining the authorised project or any sewers, drains and watercourses; or

caused by the construction of any specified work or any act or omission of the undertaker, its contractors, agents or employees whilst engaged on the specified work.

(2) The drainage authority must give to the undertaker reasonable notice of any such claim or demand, and no settlement or compromise may be made without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

(3) The fact that any act or thing may have been done by the drainage authority on behalf of the undertaker or in accordance with a plan approved or deemed to have been approved by the drainage authority or in accordance with any requirement of the drainage authority or under its supervision does not, subject to sub-paragraph (4), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless the drainage authority fails to carry out and execute the works properly with due care and attention and in a skilful and professional like manner or in a manner that does not accord with the approved plan.

(4) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or loss to the extent that it is attributable to the act, neglect or default of the drainage authority, its officers, servants, contractors or agents.

27

The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the drainage authority or to its satisfaction does not (in the absence of negligence on the part of the drainage authority, its officers, contractors or agents), relieve the undertaker from any liability under this Part.

Disputes

28

Any dispute arising between the undertaker and the drainage authority under this Part is to be determined by arbitration in accordance with article 64 (arbitration).

PART 4 — FOR THE PROTECTION OF RAILWAY INTERESTS

Application

29

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

Interpretation

30

In this Part of this Schedule—

“Company” means Network Rail or, as the case may be, HS1;

“concession agreement” means the agreement between the Secretary of State for Transport and HS1 Limited for the design, construction, financing, operation, repair and maintenance of High Speed 1, as amended or supplemented from time to time;

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

“the engineer” means an engineer appointed by the Company for the purposes of this Order;

“High Speed 1” means the high speed rail link between St Pancras in the London Borough of Camden and the Channel Tunnel Portal at Castle Hill, Folkestone, Kent and the international stations at St Pancras, Stratford and Ebbsfleet and Ashford and all associated track, facilities and installations, including the Waterloo Connection and the maintenance depots at Temple Mills and Singlewell;

“HS1” means High Speed One (HS1) Limited (company number 06045862, whose registered office is at 5th Floor, Kings Place, 90 York Way, London N1 9AG) and any associated company of High Speed One (HS1) Limited which holds property for railway purposes and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 (meaning of “subsidiary” etc.)[^f00183] of the Companies Act 2006)) the holding company of High Speed One (HS1) Limited, a subsidiary of High Speed One (HS1) Limited or another subsidiary of the holding company of High Speed One (HS1) Limited;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail by the Secretary of State in exercise of powers under section 8 (licences)[^f00184] of the Railways Act 1993;

“Network Rail” means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at 1 Eversholt Street, London NW1 2DN) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

“protective works” means any works specified by the engineer under paragraph 32;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

“railway property” means any railway belonging to the Company and—any station, land, works, apparatus and equipment belonging to the Company and connected with any such railway; andany easement or other property interest held or used by the Company for or connected with the purposes of such railway or works, apparatus or equipment; and

“specified work” means so much of any of the authorised development as is, or is to be, situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.

31

(1) Where under this Part of this Schedule the Company is required to give its consent, agreement or approval in respect of any matter, that consent, agreement or approval is subject to the condition that it must comply with any relevant railway operational procedures, any obligations under statute and in the case of—

(a) Network Rail, its network licence; and

(b) HS1, the concession agreement.

(2) In so far as any specified work or the acquisition or use of railway property or rights over railway property is or may be subject to railway operational procedures, the Company 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 those procedures; and

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

32

(1) The undertaker must, before commencing construction of any specified work, supply to the Company proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration under article 64 (arbitration).

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to the Company the engineer has not intimated disapproval of those plans and the grounds of disapproval, the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 14 days beginning with the date upon which the engineer receives written notice from the undertaker and if, by the expiry of the further 14 days period specified in the written notice the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as submitted.

(3) If by the end of the period of 14 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), the Company gives notice to the undertaker that it desires itself to construct any part of a specified work which in the reasonable opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of the Company then, if the undertaker desires such part of the specified work to be constructed, the Company must construct it (together with any adjoining part of the specified work which the undertaker reasonably requires to be constructed with that work) 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 (where appropriate and if given) of the undertaker.

(4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s reasonable opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of the Company or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes must be constructed by the Company, or by the undertaker, if the Company so desires, and such protective works must be carried out at the expense of the undertaker in either case with all reasonable dispatch and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.

33

(1) Any specified work and any protective works to be constructed by virtue of paragraph 32(4) must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 32;

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

(d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of the Company or the traffic on it and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work or a protective work, the undertaker must, regardless of any such approval, make good such damage and must pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may sustain by reason of any such damage, interference or obstruction.

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

34

(1) The undertaker must—

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

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

35

The Company must at all times afford reasonable facilities to the undertaker and the undertaker’s agents for access to any works carried out by the Company under this Part of this Schedule during their construction and must supply the undertaker with such information as the undertaker may reasonably require with regard to such works or the method of constructing them.

36

(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work or a protective work, or during a period of 12 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of the Company, such alterations and additions may be carried out by the Company and if the Company gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified, including details of the reasonable cost of carrying out - and in the case of any permanent alterations or additions, maintaining, working and, when necessary, renewing - those alterations or additions in the notice), the undertaker must pay to the Company the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be properly and reasonably incurred by the Company in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work or a protective work by the undertaker, the Company gives notice to the undertaker that the Company desires itself to construct that part of the specified work or protective work which in the reasonable opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of the Company then, if the undertaker decides that part of the specified work or protective work is to be constructed, the Company must assume construction of that part of the specified work or protective work and the undertaker must, regardless of any such approval of a specified work or protective work under paragraph 32(3), pay to the Company all expenses properly and reasonably incurred by the Company and compensation for any direct loss which it may suffer by reason of the execution by the Company of that specified work or protective work.

(3) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be set off against any sum payable by the undertaker to the Company under this paragraph.

(4) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 37(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

37

The undertaker must repay to the Company all reasonable fees, costs, charges and expenses properly and reasonably incurred by the Company—

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 32(3) or in constructing any protective works under the provisions of paragraph 32(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the reasonable approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction of a specified work or a protective work;

(c) in respect of the employment or procurement of the services of any inspectors, signallers, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work or a protective work;

(d) in respect of any special traffic working resulting from any speed restrictions which may in the reasonable opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or a protective work or from the substitution of diversion of services which may be reasonably necessary for the same reason; and

(e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work or a protective work.

38

(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with the Company’s apparatus generated by the operation of the authorised development where such interference is of a level which adversely affects the safe operation of the Company’s apparatus;

“the Company’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by the Company for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to the Company’s apparatus carried out after approval of plans under paragraph 32(1) for the relevant part of the authorised development giving rise to EMI.

(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with the Company (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3)—

(a) the undertaker must consult with the Company as early as reasonably practicable to identify all of the Company’s apparatus which may be at risk of EMI, and must continue to consult with the Company (both before and after formal submission of plans under paragraph 32(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b) the Company must make available to the undertaker all information in the possession of the Company reasonably requested by the undertaker in respect of the Company’s apparatus identified under sub-paragraph (a); and

(c) the Company must allow the undertaker reasonable facilities for the inspection of the Company’s apparatus identified under sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to the Company’s apparatus, the Company must not withhold or delay its consent unreasonably to modifications of the Company’s apparatus, but the means of prevention and the method of their execution may be selected at the reasonable discretion of the Company, and in relation to such modifications paragraph 32(1) has effect subject to this sub-paragraph.

(6) If at any time prior to the completion of the authorised development and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by the Company of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to the Company’s apparatus.

(7) In the event of EMI having occurred—

(a) the undertaker must afford reasonable facilities to the Company for access to the undertaker’s apparatus in the investigation of such EMI;

(b) the Company must afford reasonable facilities to the undertaker for access to the Company’s apparatus in the investigation of such EMI; and

(c) the Company must make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of the Company’s apparatus or such EMI.

(8) Where the Company approves modifications to the Company’s apparatus under sub-paragraphs (5) or (6)—

(a) the Company must allow the undertaker reasonable facilities for the inspection of the relevant part of the Company’s apparatus; and

(b) any modifications to the Company’s apparatus approved under those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 33.

(9) For the purpose of paragraph 37(a) any modifications to the Company’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(10) In relation to any dispute arising under this paragraph the reference in article 64 (arbitration) to a single arbitrator to be agreed between the parties is to be read as a reference to an arbitrator being a member of the Institution of Engineering and Technology to be agreed.

39

If at any time after the completion of a specified work or a protective work, not being a work vested in the Company, the Company gives notice to the undertaker informing it that the state of maintenance of any part of the specified work or protective work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work or protective work in such state of maintenance as to not adversely affect railway property.

40

The undertaker must not provide any illumination or illuminated sign or signal on or in connection with a specified work or a protective work in the vicinity of any railway belonging to the Company unless the undertaker has first consulted the Company and the undertaker must comply with the Company’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

41

Any additional expenses which the Company may properly and reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work or a protective work must, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the undertaker, be repaid by the undertaker to the Company.

42

(1) The undertaker must pay to the Company all reasonable and properly incurred costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (but subject always to the remaining provisions of this paragraph and to article 67 (no double recovery) which may be occasioned to or reasonably incurred by the Company—

(a) by reason of the construction or maintenance of a specified work or a protective work or the failure of it; or

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

and the undertaker must indemnify and keep indemnified the Company from and against all claims and demands arising out of or in connection with a specified work or a protective work or any such failure, act or omission; and the fact that any act or thing may have been done by the Company on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision will not (if it was done without negligence on the part of the Company or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) The Company must—

(a) give the undertaker written notice of any such claims or demands as soon as reasonably possible after the Company became aware of any such claims or demands;

(b) not admit liability or make any offer to settle or settle or compromise any such claim or demand without the prior 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);

(d) keep the undertaker informed in relation to the progress of any such claims and demands and pay due regard to the undertaker’s reasonable representations in relation to them.

(3) In no circumstances is the undertaker liable to the Company under sub-paragraph (1) for any indirect or consequential loss or loss of profits, except that the sums payable by the undertaker under that sub-paragraph include a sum equivalent to the relevant costs in circumstances where—

(a) the Company is liable to make payment of the relevant costs pursuant to the terms of an agreement between the Company and a train operator; and

(b) the existence of that agreement and the extent of the Company’s liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the undertaker, but not otherwise.

(4) Subject to the terms of any agreement between the Company and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, the Company must promptly pay to each train operator the amount of any sums which the Company receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay the Company the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator under sub-paragraph (4).

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) properly and reasonably incurred by each train operator as a consequence of any restriction of the use of the Company’s railway network as a result of the construction, maintenance or failure of a specified work or a protective work or any such act or omission as mentioned in sub-paragraph (1); and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 (licences) of the Railways Act 1993.

43

The Company must, on receipt of a request from the undertaker, from time to time, provide the undertaker free of charge with written estimates of the costs, charges, expenses, future cost forecasts and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 42 and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made under this Part of this Schedule (including any claim relating to those relevant costs).

44

In the assessment of any sums payable to the Company 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 Company 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.

45

The undertaker and the Company may, subject in the case of Network Rail to compliance with the terms of its network licence and in the case of HS1 to compliance with the terms of the concession agreement, enter into, and carry into effect, agreements for the transfer to the undertaker of—

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

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

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

46

(1) Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 (the provision of railway services) of the Railways Act 1993.

(2) Sub-paragraph (3) applies in respect of the land comprised in the plots listed in the second column of the table only.

(3) In respect of the plots of land to which this sub-paragraph applies, the provisions of article 25 (compulsory acquisition of land) apply in respect of the specified airspace of the land only.

(1) Location	(2) Plot Reference Number shown on Land Plan	(3) Height above the railhead
Franks Farm	44-24, 44-45 and 44-53	7800 mm
FP252	42-123	7500 mm
Tilbury Viaduct	23-77	6800 mm

47

The undertaker must no later than 28 days from the date that the documents referred to in article 62 (certification of documents, etc.) are submitted to and certified by the Secretary of State in accordance with that article, provide a set of those documents to the Company in the form of a computer disc with read only memory.

PART 5 — FOR THE PROTECTION OF SPECIFIED GAS UNDERTAKERS

Application

48

For the protection of the gas undertakers referred to in this Part of this Schedule, the following provisions will, unless otherwise agreed in writing between the undertaker and the gas undertaker concerned, have effect.

Interpretation

49

In this Part of this Schedule—

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

“apparatus” means any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by the gas undertaker for the purposes of its undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of the gas undertaker for the purposes of its undertaking and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“Cadent Gas Limited” means Cadent Gas Limited (company number 10080864), whose registered office is at Pilot Way, Ansty, Coventry, England CV7 9JU;

“commence” and “commencement” include any surveys, monitoring, work operations, remedial work in respect of any contamination or other adverse ground conditions, the receipt and erection of construction plant and equipment, and non-intrusive investigations for the purpose of assessing ground conditions;

“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;

“facilities and rights” for construction and for maintenance include any appropriate working areas required to reasonably and safely undertake that construction or maintenance, and any necessary rights of access;

“functions” includes powers and duties;

“gas supply” means the transmission, transportation, supply or storage of gas;

“gas undertaker” means Cadent Gas Limited or Southern Gas Networks plc as the case may be and includes any successor in title or any successor as a gas transporter within the meaning of Part 1 (gas supply) of the Gas Act 1986[^f00185];

“ground mitigation scheme” means a scheme approved by the gas undertaker (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, requires the undertaker to submit for the gas undertaker’s approval a ground mitigation scheme;

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