PART 1 PRELIMINARY

Citation and commencement

1.  This Order may be cited as the A428 Black Cat to Caxton Gibbet Development Consent Order 2022 and comes into force on 8th September 2022.

Interpretation

2.—(1) In this Order except where provided otherwise—

“ the 1961 Act” means the Land Compensation Act 1961( 9);

“ the 1965 Act” means the Compulsory Purchase Act 1965( 10);

“ the 1980 Act” means the Highways Act 1980( 11);

“ the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981( 12);

“ the 1984 Act” means the Road Traffic Regulation Act 1984( 13);

“ the 1990 Act” means the Town and Country Planning Act 1990( 14);

“ the 1991 Act” means the New Roads and Street Works Act 1991( 15);

“ the 2008 Act” means the Planning Act 2008( 16);

“ address” includes any number or address for the purposes of electronic transmission;

“ advanced works permission” means the planning permission in respect of land to the West of Hills Farm, Station Road, Tempsford SG19 2BP for archaeological excavation and associated engineering works granted by Central Bedfordshire Council on 8th April 2021, with reference 20/04185/FULL;

“ apparatus” has the same meaning as in Part 3 of the 1991 Act;

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

“ book of reference” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the book of reference for the purposes of this Order;

“ bridleway” has the same meaning as in section 329(1) (further provision as to interpretation) of the 1980 Act;

“ bridlepath” means a way constituting or comprised in a highway over which the public have a right of way on pedal cycles (other than pedal cycles which are motor vehicles within the meaning of the Road Traffic Act 1988), on foot and on horseback or leading a horse, but no other right of way;

“ building” includes any structure or erection or any part of a building, structure or erection;

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

“ carriageway” has the same meaning as in section 329(1) of the 1980 Act;

“ classification of road plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the classification of road plans for the purposes of this Order;

“ commence” means beginning to carry out any material operation (as defined in section 56(4)( 17) of the 1990 Act) forming part of the authorised development other than any operations consisting of pre-commencement works, and “ commencement” is to be construed accordingly;

“ Crown land plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the Crown land plans for the purposes of this Order;

“ cycle track” has the same meaning as in section 329(1)( 18) of the 1980 Act and for the purposes of this Order includes a right of way on foot;

“ de-trunking plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the de-trunking plans for the purposes of this Order;

“ electronic transmission” means a communication transmitted—

and in this definition “ electronic communications network” has the same meaning as in section 32(1) (meaning of electronic communications networks and services) of the Communications Act 2003( 19);

“ engineering section drawings” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the engineering section drawings by the Secretary of State for the purposes of this Order;

“ environmental masterplan” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the environmental masterplan for the purposes of this Order;

“ environmental statement” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the environmental statement by the Secretary of State for the purposes of this Order;

“ footpath” and “ footway” have the same meaning as in section 329(1) of the 1980 Act;

“ general arrangement plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the general arrangement plans for the purposes of this Order;

“ habitats plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the habitats map for the purposes of this Order;

“ highway”, “ highway authority” and “ local highway authority” have the same meaning as in the 1980 Act;

“ land plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the land plans by the Secretary of State for the purposes of this Order;

“ land adjacent to the Order limits” means any land outside but adjacent to the Order limits the use of which is reasonably necessary to construct the authorised development or any section or part of the authorised development;

“ limits of deviation” means the limits of deviation referred to in article 8 (limits of deviation);

“ maintain” includes, in relation any part of the authorised development, to inspect, repair, adjust, alter, improve, landscape, preserve, remove, reconstruct, refurbish or replace, provided such works do not give rise to any materially new or materially different environmental effects to those identified in the environmental statement and any derivative of “ maintain” is to be construed accordingly;

“ new dual carriageway” means a new 10 mile (16km) dual 2-lane carriageway from the Black Cat junction to the Caxton Gibbet junction as shown on the works plans, to be known as the A421, and comprised within the authorised development;

“ Order land” means the land shown on the land plans which is within the limits of land to be acquired or used permanently or temporarily, and described in the book of reference;

“ the Order limits” means the limits of land to be acquired permanently or used temporarily as shown on the land plans, and the limits of land within which the authorised development, as shown on the works plans, may be carried out;

“ owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981( 20);

“ permanent speed limit plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the permanent speed limit plans for the purposes of this Order;

“ pre-commencement work” means;

“ the relevant local highway authority” means, the local highway authority in whose area the highway in question lies;

“ relevant planning authority” means in any given provision of this Order, the planning authority for the land to which the provision relates;

“ special road” means a highway which is a special road in accordance with section 16( 21) (general provisions as to special roads) of the 1980 Act or by virtue of an order granting development consent;

“ statutory undertaker” means any statutory undertaker for the purposes of section 127(8) (statutory undertakers’ land) of the 2008 Act;

“ street” means a street within the meaning of section 48( 22) (streets, street works and undertakers) of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

“ street authority”, in relation to a street, has the same meaning as in Part 3 (street works in England and Wales) of the 1991 Act;

“ streets, rights of way and access plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the streets, rights of way and access plans by the Secretary of State for the purposes of this Order;

“ traffic authority” has the same meaning as in section 121A( 23) (traffic authorities) of the 1984 Act;

“ traffic regulation measures plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the traffic regulation measures plans by the Secretary of State for the purposes of this Order;

“ tree constraints plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the tree constraints plan by the Secretary of State for the purposes of this Order;

“ the tribunal” means the Lands Chamber of the Upper Tribunal;

“ trunk road” means a highway which is a trunk road by virtue of—

“ undertaker” means National Highways Limited, company number 09346363, whose registered office is at Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ;

“ watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and

“ works plans” means the document of that description listed in Schedule 10 (documents to be certified) and certified as the works plans by the Secretary of State for the purposes of this Order.

(2) References in this Order to rights over land include references to rights to do or to place and maintain, anything in, on or under land or in the airspace above its surface and references in this Order to the imposition of restrictive covenants are references to the creation of rights over land which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or is otherwise comprised in the Order land.

(3) References in this Order to the creation and acquisition of rights over land include references to rights to oblige a party having an interest in land to grant those rights referenced in the Order, at the direction of the undertaker, either—

(a) to an affected person directly, where that affected person’s land or rights over land have been adversely affected by this Order, and, where that is the case, the rights referenced in the Order are to be granted for the benefit of the land in which that affected person has an interest at the time of the making of this Order; or

(b) to any statutory undertaker for the purposes of their undertaking.

(4) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work.

(5) For the purposes of this Order, all areas described in square metres in the book of reference are approximate.

(6) References in this Order to points identified by letters or numbers are to be construed as references to points so lettered or numbered on the relevant plans.

(7) References in this Order to numbered works are references to the works as numbered in Part 1 of Schedule 1 (authorised development).

Disapplication of legislative provisions

3.—(1) The provisions of the Neighbourhood Planning Act 2017( 26) insofar as they relate to temporary possession of land under articles 37 (temporary use of land for carrying out the authorised development) and 38 (temporary use of land for maintaining the authorised development) do not apply in relation to the construction of work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development and, within the maintenance period defined in article 38(13), any maintenance of any part of the authorised development.

(2) The following provisions do not apply in relation to the construction of any work or the carrying out of any operation required for the purpose of, or in connection with, the construction of the authorised development—

(a) regulation 12 (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016( 27) in relation to the carrying on of a flood risk activity;

(b) the provisions of any byelaws made under, or having effect as if made under, paragraph 5, 6 or 6A of Schedule 25 (byelaw making powers of the appropriate agency) to the Water Resources Act 1991( 28);

(c) section 23 (prohibition on obstructions etc. in watercourses) of the Land Drainage Act 1991( 29);

(d) section 32( 30) (variation of awards) of the Land Drainage Act 1991;

(e) section 15 (temporary closure of recreational waterways) of the Anglian Water Authority Act 1977( 31);

(f) Part 11 (Community Infrastructure Levy) of the 2008 Act; and

(g) the provisions of any byelaws made under section 66( 32) (powers to make byelaws) of the Land Drainage Act 1991.

(3) In paragraph (2)(a) “ flood risk activity” has the meaning given in the Environmental Permitting (England and Wales) Regulations 2016.

PART 2 PRINCIPAL POWERS

Development consent etc. granted by the Order

4.—(1) Subject to the provisions of this Order including the requirements in Schedule 2 (requirements), the undertaker is granted development consent for the authorised development to be carried out within the Order limits.

(2) Any enactment applying to land within the Order limits or land adjacent to the Order limits has effect subject to the provisions of this Order.

Maintenance of authorised development

5.  The undertaker may at any time maintain the authorised development, except to the extent that this Order, or an agreement made under this Order, provides otherwise.

Application of the 1990 Act

6.—(1) This article applies where the Order land is used for the temporary construction works.

(2) Where this article applies, section 57(2) of the 1990 Act (planning permission required for development) applies as if the development consent granted by this Order were planning permission granted for a limited period.

(3) In this article, “ the temporary construction works” means works within the proposed multiple purpose construction areas, the proposed soil storage areas, the proposed site compound areas and the proposed borrow land areas as shown on the general arrangement plans.

Planning permission

7.—(1) If planning permission is issued pursuant to the 1990 Act for development any part of which is within the Order limits following the publication of this Order that is—

(a) not itself a nationally significant infrastructure project under the 2008 Act or part of such a project; or

(b) required to complete or enable the construction, use or operation of any part of the development authorised by this Order,

then the carrying out, use or operation of such development under the terms of the planning permission does not constitute a breach of the terms of this Order.

(2) Anything done by the undertaker in accordance with the terms of this Order does not constitute a breach of any planning permission that is issued pursuant to the 1990 Act.

Limits of deviation

8.—(1) In carrying out the authorised development the undertaker may, so far as the undertaker considers it necessary or convenient—

(a) deviate laterally from the lines or situations of the authorised development shown on the works plans to the extent of the limits of deviation shown on those plans;

(b) deviate laterally from the routes shown on the streets, rights of way and access plans to the extent of the limits of deviation shown on those plans; and

(c) deviate vertically from the levels of the authorised development shown on the engineering section drawings, to a maximum of 1 metre upwards or 1 metre downwards.

(2) The maximum limits of deviation set out in paragraph(1)do not apply where it is demonstrated by the undertaker to the Secretary of State’s satisfaction and the Secretary of State, following consultation with the relevant planning authority and, in respect of the authorised development comprising highways other than a special road or a trunk road, the relevant local highway authority, certifies accordingly that a deviation in excess of these limits would not give rise to any materially new or materially different environmental effects from those reported in the environmental statement.

Benefit of Order

9.—(1) Subject to article 10 (consent to transfer benefit of Order) and paragraph (2), the provisions of this Order conferring powers on the undertaker have effect solely for the benefit of the undertaker.

(2) Paragraph (1) does not apply to the works for which the consent is granted by this Order for the express benefit of owners and occupiers of land, statutory undertakers and other persons affected by the authorised development.

Consent to transfer benefit of Order

10.—(1) Subject to paragraphs (4) and (5), the undertaker may—

(a) transfer to another person (“ the transferee”) any or all of the benefit of the provisions of this Order and such related statutory rights as may be agreed between the undertaker and the transferee;

(b) grant to another person (“the grantee”) for a period agreed between the undertaker and the grantee any or all of the benefit of the provisions of this Order and such related statutory rights as may be so agreed.

(2) Where an agreement has been made in accordance with paragraph (1) references in this Order to the undertaker, include references to the transferee or the grantee.

(3) The consent of the Secretary of State is required for a transfer or a grant under this article, except where the transfer or grant is made to—

(a) National Grid Gas Plc (company number 2006000), whose registered office is at 1-3 Strand, London WC2N 5EH for the purposes of undertaking Work No. 41;

(b) Cadent Gas Limited (company number 10080864), whose registered office is at Cadent, Pilot Way, Anstey, Coventry CV7 9JU for the purposes of undertaking Work No. 51;

(c) Exolum Pipeline System Ltd (company number 09497223), whose registered office is at 1st Floor 55 King William Street, London EC4R 9AD for the purposes of undertaking Work No. 38;

(d) AWG Group Limited (company number 02366618), whose registered office is at Lancaster House Lancaster Way, Ermine Business Park, Huntingdon, Cambridgeshire, PE29 6XU for the purposes of undertaking Work Nos. 19, 28, 44, 60, 61a, 61b, 62 and 66;

(e) South Staffordshire Water PLC (company number 02662742), whose registered office is at Green Lane, Walsall, West Midlands, WS2 7PD for the purposes of undertaking Work Nos. 100, 103 and 107;

(f) UK Power Networks (Operations) Limited (company number 03870728), whose registered office is at Newington House, 237 Southwark Bridge Road, London SE1 6NP for the purposes of undertaking Work Nos. 6, 8, 27, 32, 47, 49, 52, 56, 58, 63, 67, 69, 69A, 69B, 82, 99 and 110;

(g) Openreach Limited (company number 10690039), whose registered office is at Kelvin House, 123 Judd Street, London WC1H 9NP for the purposes of undertaking Work Nos. 9, 20, 42, 65, 81, 90, 96, 97, 104 and 104a;

(h) Virgin Media Limited (company number 02591237) whose registered office is at 500 Brook Drive, Reading RG2 6UU for the purposes of undertaking Work Nos. 42, 81, 97, 104 and 104b; and

(i) Vodafone Limited (company number 01471587), whose registered office is at Vodafone House, The Connection, Newbury, Berkshire RG14 2FN for the purposes of undertaking Work No. 42, 81, 97 and 104.

PART 3 STREETS

Application of the 1991 Act

11.—(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major highway works if—

(a) they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (which defines what highway authority works are major highway works) of that Act; or

(b) they are works which, had they been executed by the relevant local highway authority, might have been carried out in exercise of the powers conferred by section 64( 33) (dual carriageways and roundabouts) of the 1980 Act or section 184( 34) (vehicle crossings over footways and verges) of that Act.

(2) In Part 3 of the 1991 Act references to the highway authority concerned are, in relation to works which are major highway works by virtue of paragraph (1), to be construed as references to the undertaker.

(3) The following provisions of the 1991 Act do not apply in relation to any works executed under the powers of this Order—

section 56( 35) (power to give directions as to timing of street works);

section 56A( 36) (power to give directions as to placing of apparatus);

section 58( 37) (restrictions following substantial road works);

section 58A( 38) (restriction on works following substantial street works);

section 73A( 39) (power to require undertaker to re-surface street);

section 73B( 40) (power to specify timing etc. of re-surfacing);

section 73C( 41) (materials, workmanship and standard of re-surfacing);

section 78A( 42) (contributions to costs of re-surfacing by undertaker); and

Schedule 3A( 43) (restriction on works following substantial street works).

(4) The provisions of the 1991 Act mentioned in paragraph (5) (which, together with other provisions of that Act, apply in relation to the execution of street works) and any regulations made, or code of practice issued or approved, under those provisions apply (with the necessary modifications) in relation to any restriction on the use, alteration or diversion of a street of a temporary nature by the undertaker under the powers conferred by article 16 (temporary alteration, prohibition and restriction of use of streets) whether or not the restriction on the use, alteration or diversion constitutes street works within the meaning of that Act.

(5) The provisions of the 1991 Act( 44) referred to in paragraph (4) are—

section 54( 45) (advance notice of certain works), subject to paragraph (6);

section 55( 46) (notice of starting date of works), subject to paragraph (6);

section 57( 47) (notice of emergency works);

section 59( 48) (general duty of street authority to co-ordinate works);

section 60 (general duty of undertakers to co-operate);

section 68 (facilities to be afforded to street authority);

section 69 (works likely to affect other apparatus in the street);

section 75( 49) (inspection fees);

section 76 (liability for cost of temporary traffic regulation); and

section 77 (liability for cost of use of alternative route),

and all such other provisions as apply for the purposes of the provisions mentioned above.

(6) Sections 54 and 55 of the 1991 Act as applied by paragraph (4) have effect as if references in section 57 of that Act to emergency works were a reference to a restriction of use, alteration or diversion (as the case may be) required in a case of emergency.

(7) Nothing in article 12 (construction and maintenance of new, altered or diverted streets and other structures)—

(a) affects the operation of section 87 (prospectively maintainable highways) of the 1991 Act;

(b) means the undertaker is by reason of any duty under that article to maintain a street to be taken to be the street authority in relation to that street for the purposes of Part 3 of that Act; or

(c) has effect in relation to street works as respects which the provisions of Part 3 of the 1991 Act apply.

Construction and maintenance of new, altered or diverted streets and other structures

12.—(1) Subject to paragraphs (9) to (13), any highway (other than a special road or a trunk road) to be constructed under this Order must be completed to the reasonable satisfaction of the relevant local highway authority.

(2) The reasonable satisfaction of the relevant local highway authority under paragraph (1) is to be signified by the issue by the local highway authority of a certificate to that effect.

(3) Unless otherwise agreed in writing with the relevant local highway authority, the highway within the boundary specified in the certificate issued under paragraph (2) (including any culverts or other structures laid under it) must be maintained by and at the expense of the relevant local highway authority from the date of issue of the certificate.

(4) Subject to paragraphs (9) to (13), where a highway (other than a special road or a trunk road) is altered or diverted under this Order, the altered or diverted part of the highway must be completed to the reasonable satisfaction of the relevant local highway authority.

(5) The reasonable satisfaction of the local highway authority under paragraph (4) is to be signified by the issue by the local highway authority of a certificate to that effect.

(6) Unless otherwise agreed in writing with the relevant local highway authority, that part of the highway within the boundary specified in the certificate issued under paragraph (4) (including any culverts or other structures laid under it) must be maintained by and at the expense of the relevant local highway authority from date of issue of the certificate.

(7) Where a highway is de-trunked under this Order—

(a) section 265( 50) (transfer of property and liabilities upon a highway becoming or ceasing to be a trunk road) of the 1980 Act applies in respect of that highway; and

(b) any alterations to that highway undertaken under powers conferred by this Order prior to or in connection with that de-trunking must, unless otherwise agreed in writing with the relevant local highway authority, be maintained by and at the expense of the relevant local highway authority from the date of de-trunking.

(8) In the case of a bridge constructed under this Order to carry a highway (other than a special road or a trunk road) over a special road or trunk road, the highway surface (being those elements over the waterproofing membrane) must be maintained by and at the expense of the relevant local highway authority and the remainder of the bridge, including the waterproofing membrane and any culverts or other structures laid under it, must be maintained by and at the expense of the undertaker.

(9) In the case of a bridge constructed under this Order to carry a special road or a trunk road, the highway surface (being those elements over the waterproofing membrane) and the remainder of the bridge must be maintained by and at the expense of the undertaker.

(10) In the case of a bridge constructed under this Order to carry a private right of way over a special road or trunk road, the bridge must be maintained by and at the expense of the undertaker.

(11) In the case of a bridge constructed under this Order to carry a public right of way, the surface of the bridge (being those elements over the waterproofing membrane) must be maintained by and at the expense of the relevant local highway authority and the structure of the bridge must be maintained by and at the expense of the undertaker.

(12) In the case of a bridge constructed under this Order to carry a shared public right of way and private access track over a special road or trunk road, the bridge must be maintained by and at the expense of the undertaker.

(13) Where a street which is not and is not intended to be a public highway is constructed, altered or diverted under this Order, the street (or part of the street as the case may be) must, when completed to the reasonable satisfaction of the street authority and unless otherwise agreed in writing with the street authority, be maintained by and at the expense of the undertaker for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(14) In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

(15) For the purposes of a defence under paragraph (14), the court must in particular have regard to the following matters—

(a) the character of the street and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a street of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the street;

(d) whether the undertaker knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and

(e) where the undertaker could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that the undertaker had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that the undertaker had given the competent person proper instructions with regard to the maintenance of the street and the competent person had carried out those instructions.

Classification of roads, etc.

13.—(1) On the date on which each of the roads described in Part 1 (trunk roads) of Schedule 3 (classification of roads, etc.) are completed and open for traffic, it is to become a trunk road as if it had become so by virtue of an order under section 10(2)( 51) (general provision as to trunk roads) of the 1980 Act specifying that date as the date on which they were to become trunk roads.

(2) On the date on which each of the roads described in Part 2 (classified roads) of Schedule 3 are completed and open for traffic, it is to become a classified road for the purpose of any enactment or instrument which refers to highways classified as classified roads as if such classification had been made under section 12(3) (general provision as to principal and classified roads) of the 1980 Act.

(3) On the date on which each of the roads described in Part 3 (unclassified roads) of Schedule 3 are completed and open for traffic, it is to become an unclassified road for the purpose of any enactment or instrument which refers to unclassified roads.

(4) On and after the date on which each of the roads specified in Part 4 (speed limits) of Schedule 3 are open for traffic, no person is to drive any motor vehicle at a speed exceeding the limit in miles per hour specified in column (3) of that Part along any lengths of that road identified in the corresponding row of column (2) of that Part.

(5) Subject to article 19 (clearways, prohibitions and restrictions), on and after a date determined by the undertaker, the restrictions specified in column (3) of Part 5 (traffic regulation measures (clearways and prohibitions)) of Schedule 3 are to apply to the lengths of road identified in the corresponding row of column (2) of that Part.

(6) On a date to be determined by the undertaker, the orders specified in column (3) of Part 6 (revocations and variations of existing traffic regulation orders) of Schedule 3 are to be varied or revoked as specified in the corresponding row of column (4) of that Part in respect of the lengths of roads specified in the corresponding row of column (2) of that Part.

(7) Unless otherwise agreed in writing with the relevant local highway authority, the footpaths, cycle tracks, footways, bridlepaths and bridleways set out in Part 7 (footpaths, cycle tracks, footways, bridlepaths and bridleways) of Schedule 3 and identified on the streets, rights of way and access plans are, subject to article 9 (limits of deviation), to be constructed by the undertaker in the specified locations and open for use on and after the date on which the last of the roads described in Parts 1 to 3 of Schedule 3 (classification of roads etc.) is completed and open for traffic or in each case on and after such earlier date as may be required pursuant to article 18(2)(a).

(8) On a date or dates to be determined by the undertaker, the roads described in Part 8 (roads to be de-trunked) of Schedule 3 are to cease to be trunk roads as if they had ceased to be trunk roads by virtue of an order made under section 10(2) of the 1980 Act specifying that date or date as the date or dates on which they were to cease to be trunk roads.

(9) The undertaker may only make a determination for the purposes of paragraph (8) with the consent of the Secretary of State, following consultation with the relevant local highway authority as to the date and as to whether the highway to be de-trunked is of a reasonably satisfactory standard for use as a local highway.

(10) The application of paragraphs (1) to (9) may be varied or revoked by any instrument made under any enactment which provides for the variation or revocation of such matters.

(11) Subject to paragraph (12) the undertaker may vary the classification of the roads, or any part of those roads, provided for in paragraphs (1), (2) and (3) and such variation may provide for any trunk road comprised in the authorised development and referred to in paragraph (1) to be classified as a special road.

(12) The undertaker must not exercise the powers conferred by paragraph (11) unless the undertaker has—

(a) given not less than four weeks’ notice in writing of the undertaker’s intention to do so to the chief officer of police and to the relevant local highway authority in whose area the road is situated; and

(b) published a notice, declaring the date on which that road or part of it is to be classified, not less than seven days before that date, in at least one local newspaper circulating in the area in which the road or, as the case may be, the relevant part of it is situated and in the London Gazette.

(13) Before exercising the powers conferred by paragraph (11) the undertaker must consult such persons as the undertaker considers necessary and appropriate and must take into consideration any representations made to the undertaker by any such person.

(14) Any roads classified as a special road in accordance with paragraph (11) are, on and from the date on which they are so classified, to be—

(a) classified as special roads for the purpose of any enactment or instrument which refers to highways classified as special roads; and

(b) provided for the use of traffic of Classes I and II( 52) of the classes of traffic set out in Schedule 4 (classes of traffic for purposes of special roads) to the 1980 Act.

(15) The restrictions provided for in paragraph (5) do not apply to an authorised vehicle where the vehicle is excepted from the restrictions in column (3) of Part 5 of Schedule 3.

(16) In paragraph(15), “ authorised vehicle” means a vehicle specified by the undertaker from time to time.

(17) No later than the expiry of the period of 12 weeks beginning with the day on which the relevant local highway authority becomes responsible for the maintenance of a footpath, cycle track, footway, bridlepath or bridleway referred to in paragraph (7), the undertaker must provide the relevant local highway authority with material specifying the location of the completed footpath, cycle track, footway, bridlepath or bridleway.

Power to alter layout etc. of streets

14.—(1) Subject to paragraph (3), the undertaker may, for the purposes of constructing and maintaining the authorised development, alter the layout of any street within the Order limits and the layout of any street having a junction with such a street; and, without limitation on the scope of this paragraph, the undertaker may—

(a) increase the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, bridlepath, cycle track or verge within the street;

(b) alter the level or increase the width of any such kerb, footway, bridlepath, cycle track or verge;

(c) reduce the width of the carriageway of the street; and

(d) make and maintain passing places.

(2) The undertaker must restore any street that has been temporarily altered under this article to the reasonable satisfaction of the street authority.

(3) The powers conferred by paragraph (1)—

(a) are exercisable on the giving of not less than 42 days’ notice to the street authority; and

(b) are not to be exercised without the consent of the street authority where that authority is a public authority.

(4) If a street authority which receives an application for consent under paragraph (3) fails to notify the undertaker of its decision before the later of—

(a) the end of the period of 28 days beginning with the date on which the application was made; or

(b) if further information is reasonably requested by the street authority during the period of 28 days beginning with the date on which the application was made, the end of the period of 14 days beginning with the date on which the further information was provided to the street authority,

it is deemed to have granted consent.

(5) Paragraphs (2), (3) and (4) do not apply where the undertaker is the street authority for a street in which the works are carried out.

Street works

15.—(1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets as are within the Order limits and may—

(a) break up or open the street, or any sewer, drain or tunnel under it;

(b) tunnel or bore under the street or carry out works to strengthen or repair the carriageway;

(c) remove or use all earth and materials in or under the street;

(d) place and keep apparatus in or under the street;

(e) maintain, renew or alter apparatus in the street or change its position;

(f) demolish, remove, replace and relocate any street furniture;

(g) execute any works to provide or improve sight lines;

(h) execute and maintain any works to provide hard and soft landscaping;

(i) carry out re-lining and placement of road markings;

(j) remove and install temporary and permanent signage; and

(k) execute any works required for, or incidental to, any works referred to in paragraphs (a) to(j).

(2) The authority given by paragraph (1) is a statutory right for the purposes of sections 48(3) (streets, street works and undertakers) and 51(1) (prohibition of unauthorised street works) of the 1991 Act.

Temporary alteration, diversion, prohibition and restriction of the use of streets

16.—(1) The undertaker, during and for the purposes of carrying out the authorised development, may temporarily alter, divert, prohibit or restrict the use of any street and may for any reasonable time—

(a) divert the traffic from the street; and

(b) subject to paragraph (3), prevent all persons from passing along the street.

(2) Without limitation on the scope of paragraph (1), the undertaker may use any street where the use has been temporarily prohibited or restricted under the powers conferred by this article, and within the Order limits, as a temporary working site.

(3) The undertaker must provide reasonable access for pedestrians going to or from premises abutting a street affected by the temporary alteration, diversion, prohibition or restriction of a street under this article if there would otherwise be no such access.

(4) The undertaker must not temporarily alter, divert, prohibit or restrict the use of any street for which it is not the street authority without the consent of the street authority, which may attach reasonable conditions to any consent but such consent must not be unreasonably withheld or delayed.

(5) Any person who suffers loss by the temporary alteration, diversion, prohibition or restriction of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(6) If a street authority which receives an application for consent under paragraph (4) fails to notify the undertaker of its decision before the later of—

(a) the end of the period of 28 days beginning with the date on which the application was made; or

(b) if further information is reasonably requested by the street authority during the period of 28 days beginning with the date on which the application was made, the end of the period of 14 days beginning with the date on which the further information was provided to the street authority,

it is deemed to have granted consent.

Permanent stopping up and restriction of use of streets and private means of access

17.—(1) Subject to the provisions of this article, the undertaker may, in connection with the construction of the authorised development, stop up each of the streets and private means of access shown on the streets, rights of way and access plans and specified in columns (1) and (2) of Parts 1, 2, 3 and 4 of Schedule 4 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) to the extent specified and described in column (3) of those Parts of that Schedule.

(2) No street or private means of access specified in columns (1) and (2) of Parts 2 and 3 of Schedule 4 (being a street or private means of access to be stopped up for which a substitute is to be provided) is to be wholly or partly stopped up under this article unless—

(a) the new street or private means of access to be constructed and substituted for it, which is specified in column (4) of those Parts of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or

(b) a temporary alternative route for the passage of such traffic as could have used the street or private means of access to be stopped up is first provided and subsequently maintained by the undertaker, to the reasonable satisfaction of the street authority, between the commencement and termination points for the stopping up of the street or private means of access until the completion and opening of the new street or private means of access in accordance with sub-paragraph (a).

(3) No street or private means of access specified in columns (1) and (2) of Parts 1 and 4 of Schedule 4 (being a street or private means of access to be stopped up for which no substitute is to be provided) is to be wholly or partly stopped up under this article unless the condition specified in paragraph (4) is satisfied in relation to all the land which abuts on either side of the street or private means of access to be stopped up.

(4) The condition referred to in paragraph (3) is that—

(a) the undertaker is in possession of the land; or

(b) there is no right of access to the land from the street or private means of access concerned; or

(c) there is a reasonably convenient access to the land otherwise than from the street or private means of access concerned; or

(d) the owners and occupiers of the land have agreed to the stopping up.

(5) Where a street or private means of access has been stopped up under this article—

(a) all rights of way over or along the street or private means of access so stopped up are extinguished; and

(b) the undertaker may appropriate and use for the purposes of the authorised development so much of the site of the street or private means of access as is bounded on both sides by land owned by the undertaker.

(6) Any person who suffers loss by the suspension or extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(7) This article is subject to article 40 (apparatus and rights of statutory undertakers in stopped up streets).

Access to works

18.  The undertaker may, for the purposes of the authorised development, form and lay out means of access, or improve existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development.

Clearways, prohibitions and restrictions

19.—(1) On and after such day as the undertaker may determine, except as provided in paragraph (2), no person is to cause or permit any vehicle to wait on any part of the lengths of road described in column (2) of Part 5 (traffic regulation measures (clearways and prohibitions)) of Schedule 3 (classification of roads, etc.) where it is identified in the corresponding row of column (3) of that Part that such lengths of road are to become a clearway, except upon the direction of, or with the permission of, a uniformed constable or uniformed traffic officer.

(2) Nothing in paragraph (1) applies—

(a) to render it unlawful to cause or permit a vehicle to wait on any part of a road, for so long as may be necessary to enable that vehicle to be used in connection with—

(i) the removal of any obstruction to traffic;

(ii) the maintenance, improvement, reconstruction or operation of the road;

(iii) the laying, erection, inspection, maintenance, alteration, repair, renewal or removal in or near the road of any sewer, main pipe, conduit, wire, cable, or other apparatus for the supply of gas, water, electricity or any electronic communications apparatus as defined in Schedule 3A (the electronic communications code) to the Communications Act 2003( 53); or

(iv) any building operation or demolition;

(b) in relation to a vehicle being used—

(i) for police, ambulance, fire and rescue authority or traffic officer purposes;

(ii) in the service of a local authority, safety camera partnership or Driver and Vehicle Standards Agency in pursuance of statutory powers or duties;

(iii) in the service of a water or sewerage undertaker within the meaning of the Water Industry Act 1991( 54); or

(iv) by a universal service provider for the purposes of providing a universal postal service as defined by the Postal Service Act 2000( 55); or

(c) in relation to a vehicle waiting when the person in control of it is—

(i) required by law to stop;

(ii) obliged to stop in order to avoid an accident; or

(iii) prevented from proceeding by circumstances outside the person’s control.

(3) No person is to cause or permit any vehicle to wait on any part of the roads described in paragraph (1) for the purposes of selling, or dispensing of, goods from that vehicle, unless the goods are immediately delivered at, or taken into, premises adjacent to the land on which the vehicle stood when the goods were sold or dispensed.

(4) Paragraphs (1), (2), and (3) have effect as if made by order under the 1984 Act, and their application may be varied or revoked by an order made under that Act or any other enactment which provides for the variation or revocation of such orders.

(5) In this article, “ traffic officer” means an individual designated under section 2 (designation of traffic officers) of the Traffic Management Act 2004( 56).

PART 4 SUPPLEMENTAL POWERS

Discharge of water

20.—(1) Subject to paragraphs (3) and (4), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the carrying out, maintenance or use of the authorised development and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the making of connections to or use of a public sewer or drain by the undertaker under paragraph (1) is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991( 57).

(3) The undertaker must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) The undertaker must not make any opening into any public sewer or drain except—

(a) in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

(b) where that person has been given the opportunity to supervise the making of the opening.

(5) The undertaker must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(6) Subject to article 3(2)(a) (disapplication of legislative provisions), nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for an environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016( 58).

(7) In this article—

(a) “ public sewer or drain” means a sewer or drain which belongs to Homes England, the Environment Agency, an internal drainage board, a joint planning board, a local authority or a sewerage undertaker; and

(b) other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991( 59) have the same meaning as in that Act.

(8) If a person who receives an application for consent under paragraph (3) or approval under paragraph (4) fails to notify the undertaker of a decision within 28 days of receiving an application, that person is deemed to have granted consent or given approval, as the case may be.

Protective work to buildings

21.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building which may be affected by the authorised development as the undertaker considers necessary or expedient.

(2) Protective works may be carried out—

(a) at any time before or during the carrying out in the vicinity of the building of any part of the authorised development; or

(b) after the completion of that part of the authorised development in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised development is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage, and place on, leave on and remove from the land any apparatus and equipment for use in connection with the survey.

(4) For the purpose of carrying out protective works under this article to a building the undertaker may (subject to paragraphs (5) and (6))—

(a) enter the building and any land within its curtilage; and

(b) where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a) a right under paragraph (1) to carry out protective works to a building;

(b) a right under paragraph (3) to enter a building and land within its curtilage;

(c) a right under paragraph (4)(a) to enter a building and land within its curtilage; or

(d) a right under paragraph (4)(b) to enter land,

the undertaker must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 50 (arbitration).

(7) The undertaker must compensate the owners and occupiers of any building or land in relation to which rights under this article have been exercised for any loss or damage arising to them by reason of the exercise of those rights.

(8) Where—

(a) protective works are carried out under this article to a building; and

(b) within the period of 5 years beginning with the day on which the part of the authorised development carried out in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the carrying out or use of that part of the authorised development,

the undertaker must compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Nothing in this article relieves the undertaker from any liability to pay compensation under section 152( 60) (compensation in case where no right to claim in nuisance) of the 2008 Act.

(10) Section 13( 61) (refusal to give possession to acquiring authority) of the 1965 Act applies to the entry onto land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125( 62) (compulsory acquisition provisions) of the 2008 Act.

(11) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(12) In this article “ protective works” in relation to a building means—

(a) underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the carrying out, maintenance or use of the authorised development; and

(b) any works the purpose of which is to remedy any damage which has been caused to the building by the carrying out, maintenance or use of the authorised development.

Authority to survey and investigate the land

22.—(1) The undertaker may for the purposes of this Order enter on any land shown within the Order limits or which may be affected by the authorised development and—

(a) survey or investigate the land (including any watercourses, groundwater, static water bodies or vegetation on the land);

(b) without limitation on the scope of sub-paragraph (a), make any excavations or trial holes and boreholes and other investigations in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer, subsoil and groundwater and remove soil and water samples and discharge water from sampling operations on to the land;

(c) without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land, including making excavations or trial holes on the land for such purposes; and

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making trial holes and boreholes.

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1) unless at least 14 days’ notice has been served on every owner and occupier of the land.

(3) The notice required under paragraph (2) must indicate the nature of the survey or investigation that the undertaker intends to carry out.

(4) Any person entering land under this article on behalf of the undertaker—

(a) must, if so required, before or after entering the land, produce written evidence of their authority to do so; and

(b) may take into the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes and boreholes.

(5) No trial holes are to be made under this article—

(a) in land located within the highway boundary without the consent of the highway authority; or

(b) in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld.

(6) The undertaker must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(7) Section 13 (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land pursuant to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

(8) If either the highway authority or a street authority which receives an application for consent fails to notify the undertaker of its decision within 28 days of receiving the application for consent—

(a) under paragraph (5)(a) in the case of the highway authority; or

(b) under paragraph (5)(b) in the case of a street authority,

that authority is deemed to have granted consent.

Maintenance of drainage works

23.—(1) Nothing in this Order, or the construction, maintenance or operation of the authorised development under it, affects any responsibility for the maintenance of any works connected with the drainage of land, whether that responsibility is imposed or allocated by or under any enactment, or otherwise agreed in writing between the undertaker and the person responsible.

(2) In this article “ drainage” has the same meaning as in section 72 (interpretation) of the Land Drainage Act 1991( 63).

PART 5 POWERS OF ACQUISITION AND POSSESSION OF LAND

Compulsory acquisition of land

24.—(1) The undertaker may acquire compulsorily so much of the Order land as is required for the authorised development, or to facilitate it, or is incidental to it.

(2) This article is subject to paragraph (6) of article 27 (compulsory acquisition of rights and imposition of restrictive covenants) and article 53 (crown rights).

Compulsory acquisition of land – incorporation of the mineral code

25.  Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981( 64) are incorporated into this Order subject to the following modifications—

(a) paragraph 8(3) is not incorporated;

(b) for “the acquiring authority” substitute “the undertaker”; and

(c) for “undertaking” substitute “authorised development”.

Time limit for exercise of authority to acquire land compulsorily

26.—(1) After the end of the period of 5 years beginning on the day on which this Order is made—

(a) no notice to treat is to be served under Part 1 of the 1965 Act; and

(b) no declaration is to be executed under section 4 (execution of declaration) of the 1981 Act as applied by article 34 (application of the 1981 Act).

(2) The authority conferred by article 37 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents the undertaker from remaining in possession of land after the end of that period, if the land was entered and possession was taken before the end of that period.

Compulsory acquisition of rights and imposition of restrictive covenants

27.—(1) Subject to the following paragraphs of this article, the undertaker may acquire such rights over the Order land, or impose restrictive covenants affecting the Order land, including rights and restrictive covenants for the benefit of a statutory undertaker or any other person, as may be required for any purpose for which that land may be acquired under article 24 (compulsory acquisition of land), by creating them as well as acquiring rights already in existence.

(2) The power to impose restrictive covenants under paragraph (1) is exercisable only in respect of plots specified in column (1) of Schedule 5.

(3) In the case of the Order land specified in column (1) of Schedule 5 (land in which only new rights and restrictive covenants etc. may be acquired) the undertaker’s powers of compulsory acquisition under paragraph (1) are limited to the acquisition of such wayleaves, easements, new rights in the land or the imposition of restrictive covenants, as may be required for the purposes specified in relation to that land in column (2) of that Schedule and relating to that part of the authorised development specified in column (3) of that Schedule.

(4) The power under paragraph (1) to acquire the rights and to impose the restrictive covenants described in Schedule 5 for the benefit of statutory undertakers or for the benefit of any other person—

(a) does not preclude the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 5 as may be required for the benefit of any other statutory undertaker or any other person; and

(b) must not be exercised by the undertaker in a way that precludes the acquisition of such other rights and the imposition of such other restrictive covenants in respect of the same land in accordance with Schedule 5 as are required for the benefit of any other statutory undertaker or any other person.

(5) Subject to section 8( 65) (other provisions as to divided land) of, and Schedule 2A( 66) (counter-notice requiring purchase of land not in notice to treat), to the 1965 Act, as substituted by paragraph 5(8) of Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights), where the undertaker acquires a right over land or the benefit of a restrictive covenant affecting land under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land.

(6) Schedule 6 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right or the imposition of a restrictive covenant.

Public rights of way

28.—(1) The public rights of way identified in columns (1) to (3) of Parts 1 and 2 of Schedule 4 (permanent stopping up of highways and private means of access and provision of new highways and private means of access) and shown on the streets, rights of way and access plans are to be extinguished on the date of the expiry of the notice given under paragraph (2).

(2) The undertaker must erect a site notice at each end of the rights of way to be extinguished specifying a date for its extinguishment, which date must be—

(a) in the case of the public rights of way identified in Part 2 of Schedule 4, no sooner than the date on which the relevant alternative section of public rights of way identified in column (4) of Part 2 of Schedule 4 is open for use by the public: or

(b) in any other case, no sooner than 28 days after the date on which the site notices are erected.

Private rights over land

29.—(1) Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under this Order are extinguished from whichever is the earlier of—

(a) the date of acquisition of the land by the undertaker, whether compulsorily or by agreement; or

(b) the date of entry on the land by the undertaker under section 11(1)( 67) (power of entry) of the 1965 Act.

(2) Subject to the provisions of this article, all private rights over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or burden of the restrictive covenant—

(a) as from the date of the acquisition of the right or the benefit of the restrictive covenant by the undertaker, whether compulsorily or by agreement; or

(b) on the date of entry on the land by the undertaker under section 11(1) (power of entry) of the 1965 Act,

whichever is the earlier.

(3) Subject to the provisions of this article, all private rights over land owned by the undertaker that are within the Order limits are extinguished when any material operation comprised in the authorised development interferes with or breaches those rights.

(4) Subject to the provisions of this article, all private rights over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.

(5) Any person who suffers loss by the extinguishment or suspension of any private right under this article is entitled to compensation in accordance with the terms of section 152( 68) (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of dispute, as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(6) This article does not apply in relation to any right to which section 138( 69) (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 39 (statutory undertakers) applies.

(7) Paragraphs (1) to (4) have effect subject to—

(a) any notice given by the undertaker before—

(i) the completion of the acquisition of the land or the acquisition of the rights or the imposition of restrictive covenants over or affecting the land;

(ii) the undertaker’s appropriation of it;

(iii) the undertaker’s entry onto it; or

(iv) the undertaker’s taking temporary possession of it,

that any or all of those paragraphs do not apply to any right specified in the notice; and

(b) any agreement made at any time between the undertaker and the person in or to whom the right in question is vested or belongs.

(8) If any such agreement referred to in paragraph (7)(b)—

(a) is made with a person in or to whom the right is vested or belongs; and

(b) is expressed to have effect also for the benefit of those deriving title from or under that person,

it is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

(9) References in this article to private rights over land include any trust, incident, easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and include restrictions as to the user of land arising by virtue of a contract, agreement or undertaking having that effect.

Power to override easements and other rights

30.—(1) Any authorised activity which takes place on land within the Order limits (whether the activity is undertaken by the undertaker or by any person deriving title from the undertaker or by any contractors, servants or agents of the undertaker) is authorised by this Order if it is done in accordance with the terms of this Order, notwithstanding that it involves—

(a) an interference with an interest or right to which this article applies; or

(b) a breach of a restriction as to the user of land arising by virtue of a contract.

(2) The interests and rights to which this article applies include any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support and including restrictions as to the user of land arising by the virtue of a contract.

(3) Where an interest, right or restriction is overridden by paragraph (1), compensation—

(a) is payable under section 7 (measure of compensation in case of severance) or section 10( 70) (further provision as to compensation for injurious affection) of the 1965 Act; and

(b) is to be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections where—

(i) the compensation is to be estimated in connection with a purchase under that Act; or

(ii) the injury arises from the execution of works on or use of land acquired under that Act.

(4) Where a person deriving title under the undertaker by whom the land in question was acquired—

(a) is liable to pay compensation by virtue of paragraph (3); and

(b) fails to discharge that liability, the liability is enforceable against the undertaker.

(5) Nothing in this article is to be construed as authorising any act or omission on the part of any person which is actionable at the suit of any person on any grounds other than such an interference or breach as is mentioned in paragraph (1) of this article.

(6) In this article “ authorised activity” means the exercise of the powers under the following provisions, in the case where the land in respect of which the power is to be exercised has not been vested in or acquired by the undertaker—

(a) article 22 (authority to survey and investigate the land);

(b) article 42 (felling or lopping of trees and removal of hedgerows).

Disregard of certain interests and improvements

31.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land or right over any land under this Order, the tribunal must not take into account—

(a) any interest in land; or

(b) any enhancement of the value of any interest in land by reason of any building erected, works carried out or improvement or alteration made on the relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the carrying out of the works or the making of the improvement or alteration as part of the authorised development was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) “ relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works carried out or the improvement or alteration made as part of the authorised development, directly or indirectly concerned.

Set-off for enhancement in value of retained land

32.—(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised development.

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil) under article 27 (compulsory acquisition of rights and imposition of restrictive covenants), the tribunal must set off against the value of the rights so acquired—

(a) any increase in the value of the land over which the new rights are required; and

(b) any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,

which will accrue to that person by reason of the construction of the authorised development.

(3) The 1961 Act has effect, subject to paragraphs (1) and (2) as if this Order were a local enactment for the purposes of that Act.

Modification of Part 1 of the 1965 Act

33.—(1) Part 1 of the 1965 Act, as applied to this Order by section 125( 71) (application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.

(2) In section 4A(1)( 72) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 26 (time limit for exercise of authority to acquire land compulsorily) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022”.

(3) In section 11A( 73) (powers of entry: further notice of entry)—

(a) in subsection (1)(a), after “land” insert “under that provision”;

(b) in subsection (2), after “land” insert “under that provision”.

(4) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 266 (time limit for exercise of authority to acquire land compulsorily) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022”.

(5) In Schedule 2A( 74) (counter-notice requiring purchase of land not in notice to treat)—

(a) for paragraphs 1(2) and 14(2) substitute—

“(2)  But see article 35(3) (acquisition of subsoil or airspace only) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022, which excludes the acquisition of subsoil or airspace only from this Schedule ”; and

(b) after paragraph 29, end insert—

“PART 4 INTERPRETATION

30.   In this Schedule, references to entering on and taking possession of land do not include doing so under articles 22 (protective works to buildings), 40 (temporary use of land for carrying out the authorised development) or 41 (temporary use of land for maintaining the authorised development) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022. ”.

Application of the 1981 Act

34.—(1) The 1981 Act applies as if this Order were a compulsory purchase order.

(2) The 1981 Act, as applied by paragraph (1), has effect with the following modifications.

(3) In section 1 (application of Act), for subsection 2 substitute—

“(2)  This section applies to any Minister, any local or other public authority or any other body or person authorised to acquire land by means of a compulsory purchase order. ”.

(4) In section 5( 75) (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(5) Omit section 5A( 76) (time limit for general vesting declaration).

(6) In section 5B(1)( 77) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 118 (legal challenges relating to applications for orders granting development consent) of the Planning Act 2008, the five year period mentioned in article 26 (time limit for exercise of authority to acquire land compulsorily) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022”.

(7) In section (6)( 78) (notices after execution of declaration), in subsection (1)(b), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 134 (notice of authorisation of compulsory acquisition) of the Planning Act 2008”.

(8) In section 7( 79) (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(9) In Schedule A1( 80) (counter-notice requiring purchase of land not in general vesting declaration) for paragraph 1(2) substitute—

“(2)  But see article 35(3) (acquisition of subsoil or airspace only) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022, which excludes the acquisition of subsoil or airspace only from this Schedule. ”.

(10) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125( 81) (application of compulsory acquisition provisions) of the 2008 Act (and as modified by article 33 (modification of Part 1 of the 1965 Act)) to the compulsory acquisition of land under this Order.

Acquisition of subsoil or airspace only

35.—(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or the airspace over the land referred to in paragraph (1) of article 24 (compulsory acquisition of land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where the undertaker acquires any part of, or rights in, the subsoil of or the airspace over the land referred to in paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only—

(a) Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act (as modified by article 33 (modification of Part 1 of the 1965 Act));

(b) Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the 1981 Act; and

(c) section 153(4A)( 82) (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

(4) Paragraphs (2) and (3) are to be disregarded where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

Rights under or over streets

36.—(1) Provided that it has given the street authority for the street in question at least 28 days’ prior notice (or such shorter period as the street authority may agree), the undertaker may enter on and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes or any other purpose ancillary to the authorised development.

(2) Subject to paragraph (3), the undertaker may exercise any power conferred by paragraph (1) in relation to a street without being required to acquire any part of the street or any easement or right in the street.

(3) Paragraph (2) does not apply in relation to—

(a) any subway or underground building; or

(b) any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(4) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the undertaker acquiring any part of that person’s interest in the land, and who suffers loss as a result, is entitled to compensation to be determined, in case of dispute, as if it were a dispute under Part 1 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is a statutory undertaker to whom section 85 (sharing of cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary use of land for carrying out the authorised development

37.—(1) The undertaker may, in connection with the carrying out of the authorised development, but subject to article 26 (time limit for exercise of authority to acquire land compulsorily)—

(a) enter on and take possession of—

(i) the land specified in columns (1) and (2) of Schedule 7 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the part of the authorised development specified in column (4) of that Schedule; and

(ii) any other Order land in respect of which no notice of entry has been served under section 11( 83) (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4 (execution of declaration) of the 1981 Act( 84);

(b) remove any electric line, electrical plant, structures, apparatus, buildings and vegetation from that land;

(c) construct temporary works (including the provision of means of access) and buildings or structures on that land; and

(d) construct any permanent works specified in relation to that land as are mentioned in column (3) of Schedule 7, or any other mitigation works in connection with the authorised development; and

(e) carry out any soil reprofiling work.

(2) Not less than 28 days before entering on and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land and explain the purpose for which entry is taken in respect of land specified under paragraph (1)(a)(ii).

(3) The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a) in the case of land specified in paragraph (1)(a)(i), after the end of the period of one year beginning with the date of completion of the part of the authorised development specified in relation to that land in column (4) of Schedule 7; or

(b) in the case of any land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless the undertaker has, by the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act in relation to that land.

(4) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to—

(a) replace a building removed under this article;

(b) restore the land on which any permanent works have been constructed under paragraph (1)(d);

(c) remove any ground strengthening works which have been placed on the land to facilitate construction of the authorised development;

(d) remove any measures installed over or around statutory undertakers’ apparatus to protect that apparatus from the authorised development;

(e) restore the land on which any soil reprofiling work has occurred; or

(f) remove any temporary works where this has been agreed with the owners of the land.

(5) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the provisions of this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(7) Any dispute as to the removal of temporary works and restoration of land under paragraph (4) does not prevent the undertaker giving up possession of the land.

(8) Nothing in this article affects any liability to pay compensation under section 152( 85) (compensation in case where no right to claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the carrying out of the authorised development, other than loss or damage for which compensation is payable under paragraph (5).

(9) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(10) Section 13( 86) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125( 87) (application of compulsory acquisition provisions) of the 2008 Act.

(11) Paragraph (1)(a)(ii) does not authorise the undertaker to take temporary possession of any land which the undertaker is not authorised to acquire under article 24 (compulsory acquisition of land) or article 27 (compulsory acquisition of rights and imposition of restrictive covenants).

Temporary use of land for maintaining the authorised development

38.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any part of the authorised development, the undertaker may—

(a) enter upon and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the authorised development;

(b) enter on any land within the Order limits for the purpose of gaining such access as is reasonably required for the purpose of maintaining the authorised development; and

(c) construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise the undertaker to take temporary possession of—

(a) any house or garden belonging to a house; or

(b) any building (other than a house) if it is for the time being occupied.

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker must serve notice of the intended entry on the owners and occupiers of the land explaining the purpose for which entry is taken.

(4) The undertaker is not required to serve notice under paragraph (3) where the undertaker has identified a potential risk to the safety of—

(a) the authorised development or any of its parts;

(b) the public; or

(c) the surrounding environment,

and in such circumstances, the undertaker may enter the land under paragraph (1) subject to giving such period of notice as is reasonably practical in the circumstances.

(5) The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of the part of the authorised development for which possession of the land was taken.

(6) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(7) Any dispute as to the removal of temporary works and restoration of land under paragraph (6) does not prevent the undertaker giving up possession of the land.

(8) The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(9) Any dispute as to a person’s entitlement to compensation under paragraph (8), or as to the amount of the compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.

(10) Nothing in this article affects any liability to pay compensation under section 152 (compensation in case where no right claim in nuisance) of the 2008 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (8).

(11) Where the undertaker takes possession of land under this article, the undertaker is not required to acquire the land or any interest in it.

(12) Section 13( 88) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under to this article to the same extent as it applies to the compulsory acquisition of land under this Order by virtue of section 125 (application of compulsory acquisition provisions) of the 2008 Act.

(13) In this article “ the maintenance period”, in relation to any part of the authorised development, means the period of 5 years beginning with the date on which that part of the authorised development is first opened for use.

Statutory undertakers

39.—(1) Subject to the provisions of article 27 (compulsory acquisition of rights and imposition of restrictive covenants), Schedule 9 (protective provisions) and paragraph (2), the undertaker may—

(a) acquire compulsorily, or acquire new rights or impose restrictive covenants over, any Order land belonging to statutory undertakers; and

(b) extinguish the rights of, or remove or reposition the apparatus belonging to, statutory undertakers over or within the Order land.

(2) Paragraph (1)(b) has no effect in relation to apparatus in respect of which the following provisions apply—

(a) Part 3 (street works in England and Wales) of the 1991 Act; and

(b) article 40 (apparatus and rights of statutory undertakers in stopped up streets).

Apparatus and rights of statutory undertakers in stopped up streets

40.—(1) Where a street is stopped up under article 17 (permanent stopping up and restriction of use of streets and private means of access), any statutory utility whose apparatus is under, in, on, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this article, as if this Order had not been made.

(2) Where a street is stopped up under article 17 any statutory utility whose apparatus is under, in, on, over, along or across the street may, and if reasonably requested to do so by the undertaker must—

(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or

(b) provide other apparatus in substitution for the existing apparatus and place it in such position as described in sub-paragraph (a).

(3) Subject to the following provisions of this article, the undertaker must pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—

(a) the execution of the relocation works required in consequence of the stopping up of the street; and

(b) the doing of any other work or thing rendered necessary by the execution of the relocation works.

(4) If in the course of the execution of relocation works under paragraph (2)—

(a) apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; 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 to be necessary, then, if it involves cost in the execution of the relocation works 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 paragraph, would be payable to the statutory utility by virtue of paragraph (3) is to be reduced by the amount of that excess.

(5) For the purposes of paragraph (4)—

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

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

(6) An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph (3) (and having regard, where relevant, to paragraph (4)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

(7) Paragraphs (3) to (6) do not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

(b) the allowable costs are to be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this article—

“ apparatus” has the same meaning as in Part 3 of the 1991 Act;

“ relocation works” means work executed, or apparatus provided, under paragraph (2); and

“ statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in section 151(1) of the Communications Act 2003( 89).

Recovery of costs of new connections

41.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 39 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(2) Paragraph (1) does not apply in the case of the removal of a public sewer but where such a sewer is removed under article 38 (temporary use of land for maintain the authorised development), any person who is—

(a) the owner or occupier of premises the drains of which communicated with that sewer; or

(b) the owner of a private sewer which communicated with that sewer,

is entitled to recover from the undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewerage disposal plant.

(3) This article does not have effect in relation to apparatus to which article 40 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 of the 1991 Act applies.

(4) In this paragraph—

“ public communications provider” has the same meaning as in section 151(1) (interpretation of Chapter 1) of the Communications Act 2003; and

“ public utility undertaker” means a gas, water, electricity or sewerage undertaker.

PART 6 OPERATIONS

Felling or lopping of trees and removal of hedgerows

42.—(1) The undertaker may fell or lop any tree (other than a tree subject to a tree preservation order) or shrub, or cut back its roots, within or overhanging land within the Order limits if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

(b) from constituting a danger to persons using the authorised development.

(2) In carrying out any activity authorised by paragraph (1), the undertaker must-—

(a) do no unnecessary damage to any tree or shrub;

(b) pay compensation to any person for any loss or damage arising from such activity; and

(c) take steps to avoid a breach of the provisions of the Wildlife and Countryside Act 1981( 90) and the Conservation of Habitats and Species Regulations 2017( 91).

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(4) The undertaker may, for the purposes of carrying out the authorised development but subject to paragraph (2)—

(a) remove any hedgerow described in Part 1 (removal of hedgerows) of Schedule 8 (hedgerows and trees); and

(b) subject to consultation with the relevant planning authority remove any hedgerow within the Order limits that may be identified and that is not otherwise described in Part 1 of Schedule 8.

(5) In this article “ hedgerow” has the same meaning as in the Hedgerows Regulations 1997( 92) and includes important hedgerows.

Trees subject to tree preservation orders

43.—(1) Subject to paragraph (2), the undertaker may—

(a) fell or lop any tree described in Part 2 (trees subject to tree preservation orders) of Schedule 8, cut back its roots or undertake such other works described in column (2) of that Schedule relating to the relevant part of the authorised development described in column (3) of that Schedule;

(b) fell or lop, or cut back the roots of any other tree within or overhanging land within the Order limits and which is subject to a tree preservation order which was made after 5th February 2018.

(2) The undertaker may only exercise the powers of paragraph (1) if the undertaker reasonably believes it to be necessary to do so to prevent the tree—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised development or any apparatus used in connection with the authorised development; or

(b) from constituting a danger to persons using the authorised development.

(3) In carrying out any activity authorised by paragraph (1)—

(a) the undertaker must do no unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from such activity;

(b) the duty contained in section 206(1) (replacement of trees) of the 1990 Act is not to apply although where possible the undertaker must seek to replace any trees which are removed; and

(c) the undertaker must consult the relevant planning authority prior to that activity taking place.

(4) The authority given in paragraph (1) constitutes a deemed consent under the relevant tree preservation order.

(5) Any dispute as to a person’s entitlement to compensation under paragraph (3), or as to the amount of compensation, is to be determined as if it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

PART 7 MISCELLANEOUS AND GENERAL

Application of landlord and tenant law

44.—(1) This article applies to—

(a) any agreement for lease to any person the whole or any part of the authorised development or the right to operate the same; and

(b) any agreement entered into by the undertaker with any person for the construction, maintenance, use or operation of the authorised development, or any part of it,

so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.

(3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

(a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Operational land for purposes of the 1990 Act

45.  Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3) (cases in which land is to be treated as operational land for the purposes of that Act) of the 1990 Act.

Defence to proceedings in respect of statutory nuisance

46.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990( 93) in relation to a nuisance falling within paragraph (g) of section 79(1) (noise emitted from premises so as to be prejudicial to health or a nuisance) of that Act no order is to be made, and no fine may be imposed, under section 82(2)( 94) of that Act if—

(a) the defendant shows that the nuisance—

(i) relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites), of the Control of Pollution Act 1974( 95); or

(ii) is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or

(b) the defendant shows that the nuisance is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

(2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974( 96) does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.

Protective provisions

47.  Schedule 9 (protective provisions) has effect.

Certification of documents, etc.

48.—(1) As soon as practicable after the making of this Order, the undertaker must submit copies of each of the plans and documents set out in Schedule 10 (documents to be certified) to the Secretary of State for certification as true copies of those plans and documents.

(2) Where any plan or document set out in Schedule 10 requires to be amended to reflect the terms of the Secretary of State’s decision to make this Order, that plan or document in the form amended to the Secretary of State’s satisfaction is the version of the plan or document required to be certified under paragraph (1).

(3) A plan or document so certified is admissible in any proceedings as evidence of the contents of the plan or document of which it is a copy.

Service of notices

49.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a) by post;

(b) by delivering it to the person on whom it is to be served or to whom it is to be given or supplied; or

(c) with the consent of the recipient and subject to paragraphs (5) to (8) by electronic transmission.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978( 97) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b) in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

(a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is to be taken to be fulfilled only where—

(a) the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission in writing or by electronic transmission;

(b) the notice or document is capable of being accessed by the recipient;

(c) the notice or document is legible in all material respects; and

(d) the notice or document is in a form sufficiently permanent to be used for subsequent reference.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

(10) In this article “ legible in all material respects” means that the information contained in the notice or document is available to that person to no lesser extent than it would be if served, given or supplied by means of a notice or document in printed form.

Arbitration

50.—(1) Except where otherwise expressly provided for in this Order and unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

(2) Any matter for which the consent or approval of Secretary of State is required under any provision of this Order is not subject to arbitration.

Traffic regulation

51.—(1) This article applies to roads in respect of which the undertaker is not the traffic authority.

(2) Subject to the provisions of this article, and the consent of the traffic authority in whose area the road concerned is situated, which consent must not be unreasonably withheld, the undertaker may, for the purposes of the authorised development—

(a) revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act;

(b) permit, prohibit or restrict the stopping, waiting, loading or unloading of vehicles on any road;

(c) authorise the use as a parking place of any road;

(d) make provision as to the direction or priority of vehicular traffic on any road; and

(e) permit or prohibit vehicles, or vehicles of any class, or pedestrians access to any road,

either at all times or at times, on days or during such periods as may be specified by the undertaker.

(3) The power conferred by paragraph (2) may be exercised at any time prior to the expiry of 12 months from the date the last part of the authorised development is first open for public use but subject to paragraph (7) any prohibition, restriction or other provision made under paragraph (2) may have effect both before and after the expiry of that period.

(4) The undertaker must consult the chief officer of police and the traffic authority in whose area the road is situated before complying with the provisions of paragraph (5).

(5) The undertaker must not exercise the powers conferred by paragraph (2) unless the undertaker has—

(a) given not less than—

(i) 12 weeks’ notice in writing of the undertaker’s intention so to do in the case of a prohibition, restriction or other provision intended to have effect permanently; or

(ii) 4 weeks’ notice in writing of the undertaker’s intention so to do in the case of a prohibition, restriction or other provision intended to have effect temporarily,

to the chief officer of police and to the traffic authority in whose area the road is situated; and

(b) advertised its intention in such manner as the traffic authority may specify in writing within 28 days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(i), or within 7 days of its receipt of notice of the undertaker’s intention in the case of sub-paragraph (a)(ii).

(6) Any prohibition, restriction or other provision made by the undertaker under paragraph (2)—

(a) has effect as if duly made by, as the case may be—

(i) the traffic authority in whose area the road is situated, as a traffic regulation order under the 1984 Act; or

(ii) the local authority in whose area the road is situated, as an order under section 32 (power of local authorities to provide parking spaces) of the 1984 Act,

and the instrument by which it is effected may specify savings and exemptions to which the prohibition, restriction or other provision is subject; and

(b) is deemed to be a traffic order for the purposes of Schedule 7 (road traffic contraventions subject to civil enforcement) to the Traffic Management Act 2004( 98).

(7) Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by the undertaker from time to time by subsequent exercise of the powers conferred by paragraph (2) within a period of 24 months from the date on which the last part of the authorised development is first open for public use.

(8) Before exercising the powers conferred by paragraph (2) the undertaker must consult such persons as the undertaker considers necessary and appropriate and must take into consideration any representations made to the undertaker by any such person.

(9) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.

(10) The powers conferred on the undertaker by this article with respect to any road have effect subject to any agreement entered into by the undertaker with any person with an interest in (or who undertakes activities in relation to) premises served by the road.

(11) If the traffic authority fails to notify the undertaker of its decision within 28 days of receiving an application for consent under paragraph (2) the traffic authority is deemed to have granted consent.

Removal of human remains

52.—(1) In this article, “ the specified land” means any land within the Order limits.

(2) Before the undertaker carries out any development or works which will or may disturb any human remains in the specified land it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

(3) Subject to paragraph (12), before any such remains are removed the undertaker must give notice of the intended removal describing the specified land and stating the general effect of the following provisions of this article by—

(a) publishing a notice for two successive weeks in a newspaper circulating in the area of the authorised development; and

(b) displaying a notice in a conspicuous place on or near to the specified land.

(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3) the undertaker must send a copy of the notice to the relevant planning authority.

(5) At any time within 56 days after the first publication of a notice under paragraph (3), any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the undertaker of that person’s intention to undertake the removal of the remains.

(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—

(a) removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

(b) removed to, and cremated in, any crematorium,

and that person is to, as soon as reasonably practicable after such re-interment or cremation, provide to the undertaker a certificate for the purpose of enabling compliance with paragraph (11).

(7) If the undertaker is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question must be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.

(8) The undertaker must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article.

(9) If—

(a) within the period of 56 days referred to in paragraph (5) no notice under that paragraph has been given to the undertaker in respect of any remains in the specified land; or

(b) such notice is given and no application is made under paragraph (7) within 56 days after the giving of the notice but the person who gave the notice fails to remove the remains within a further period of 56 days; or

(c) within 56 days after any order is made by the county court under paragraph (7) any person, other than the undertaker, specified in the order fails to remove the remains; or

(d) it is determined that the remains to which any such notice relates cannot be identified,

subject to paragraph (10) the undertaker must remove the remains and cause them to be reinterred in such burial ground or cemetery in which burials may legally take place as the undertaker thinks suitable for the purpose; and, so far as possible, remains from individual graves must be reinterred in individual containers which are to be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(10) If the undertaker is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the undertaker must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(11) On the re-interment or cremation of any remains under this article—

(a) a certificate of re-interment or cremation is to be sent to the Registrar General by the undertaker giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and

(b) a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) must be sent by the undertaker to the relevant planning authority.

(12) No notice is required under paragraph (3) before the removal of any human remains where the undertaker is satisfied—

(a) that the remains were interred more than 100 years ago; and

(b) that no relative or personal representative of the deceased is likely to object to the remains being removed in accordance with this article.

(13) In the case of remains in relation to which paragraph (12) applies, the undertaker—

(a) may remove the remains;

(b) must apply for direction from the Secretary of State under paragraph (14) as to their subsequent treatment; and

(c) must deal with the remains in such manner, and subject to such conditions, as the Secretary of State directs.

(14) The removal of the remains of any deceased person under this article must be carried out in accordance with any directions which may be given by the Secretary of State.

(15) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.

(16) Section 25 (offence of removal of body from burial ground) of the Burial Act 1857( 99) does not apply to a removal carried out in accordance with this article.

(17) Section 239 (use and development of burial grounds) of the 1990 Act applies—

(a) in relation to land, other than a right over land, acquired for the purposes of the authorised development (whether or not by agreement), so as to permit use by the undertaker in accordance with the provisions of this Order; and

(b) in relation to a right over land so acquired (whether or not by agreement), or the temporary use of land pursuant to articles 40 (temporary use of land for carrying out the authorised development) or 41 (temporary use of land for maintaining the authorised development), so as to permit the exercise of that right or the temporary use by the undertaker in accordance with the provisions of this Order,

and in section 240(1) (provisions supplemental to sections 238 and 239) of the 1990 Act reference to “ regulations made for the purposes of sections 238(3) and (4) and 239(2)” means, so far as applicable to land or a right over land acquired under this Order, paragraphs (2) to (15) of this article and in section 240(3) of the 1990 Act reference to a “ statutory undertaker” includes the undertaker and reference to “ any other enactment” includes this Order.

(18) The Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950( 100) do not apply to the authorised development.

Crown rights

53.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and in particular, nothing in this Order authorises the undertaker to take, use, enter upon or in any manner interfere with any land or rights of any description—

(a) belonging to Her Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;

(b) belonging to Her Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or

(c) belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department.

(2) Paragraph (1) does not apply to the exercise of any right under this Order for the compulsory purchase of any interest in any Crown land (as defined in the 2008 Act) for the time being held otherwise than by or on behalf of the Crown.

(3) A consent under paragraph (1) may be given unconditionally or subject to terms and conditions; and is deemed to have been given in writing where it is sent electronically.

Works in the River Great Ouse

54.—(1) Subject to the provisions of this article, during the construction of the authorised development the public right of navigation over any part of the River Great Ouse that is situated within the Order limits may be temporarily suspended with the written approval of the Environment Agency, such approval not to be unreasonably withheld.

(2) The undertaker must apply to the Environment Agency for approval under paragraph (1) for such suspension, except in the case of an emergency when the undertaker must give such notice as is reasonably practicable.

(3) For the purposes of paragraph (2), an emergency means a situation that exists that without the temporary suspension of navigation rights will present—

(a) a risk to life or serious injury to one or more persons;

(b) a substantial risk of significant damage to one or more vessels;

(c) a risk of significant or structural damage to a bridge, sluice, sluice gate, lock, flood defence structure, river bank, river control work or drainage work; or

(d) a risk of serious environmental harm,

and it would not be reasonable in the circumstances to require prior approval under this article before suspending the public rights of navigation.

(4) An application for approval under paragraph (2) must provide details of the proposed suspension or periods of suspension, including particulars of—

(a) the commencement date;

(b) the duration; and

(c) the affected area,

and must include an explanation of the need for the proposed suspension or periods of suspension.

(5) The Environment Agency may in relation to any application for approval made under paragraph (2) impose reasonable conditions for any purpose described in paragraph (3).

(6) Conditions imposed under paragraph (5) may include conditions as to—

(a) the limits of any area subject to a temporary suspension of the public right of navigation;

(b) the duration of any temporary suspension;

(c) the means of marking or otherwise providing warning in the River Great Ouse of any area affected by a temporary suspension of the public right of navigation; and

(d) the use by the undertaker of the area subject to any temporary suspension so as not to interfere with any other part of the River Great Ouse or affect its use.

(7) Following an approval of any suspension given by the Environment Agency under this article or determined in accordance with article 50 (arbitration), the undertaker must:

(a) publish a notice in one or more local newspapers circulating in the district in which the River Great Ouse is situated;

(b) publish such notice not less than one month before the powers are to be exercised and state the extent to which, the period during and the purpose for which the use or navigation of the River Great Ouse is to be prohibited, restricted or regulated;

(c) display a copy of such notice in one or more places on or adjacent to the River Great Ouse in such places to bring its contents to the notice of persons using or navigating the waterways.

(8) Subject to paragraph (9), an application for approval under this article is deemed to have been approved if it is neither given nor refused within 28 business days of the Environment Agency receiving the application under paragraph (2).

(9) An approval of the Environment Agency under this article is not deemed to have been approved, if approval within the time limited by paragraph (8) has not been given pending the outcome of any consultation on the approval in question that the Environment Agency is obliged to carry out in the proper exercise of its functions.

The Cadent Diversion Works

55.—(1) If the undertaker implements the advanced works permission and Cadent or the undertaker undertakes the works described in Work No. 51 pursuant to planning permission granted under Part 3 of the 1990 Act then the requirements contained in Part 1 of Schedule 2 will not have effect in so far as they relate to those works unless Cadent or the undertaker serve written notice on the Secretary of State and the relevant planning authority confirming that it will—

(a) cease to rely on planning permission granted under Part 3 of the 1990 Act; and

(b) carry out Work No. 51 under this Order (in accordance with the requirements contained in Part 1 of Schedule 2).

(2) Cadent or the undertaker must not carry out Work No. 51 under this Order unless notice has been served under paragraph (1).

(3) Notwithstanding paragraph (2), the undertaker may exercise any other powers under this Order in respect of Work No. 51.

Use of private roads for construction

56.—(1) The undertaker may use any private road within the Order limits for the passage of persons or vehicles (with or without materials, plant and machinery) for the purposes of, or in connection with, the construction of the authorised development.

(2) The undertaker must compensate the person liable for the repair of a road to which paragraph (1) applies for any loss or damage which that person may suffer by reason of the exercise of the power conferred by paragraph (1).

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of such compensation, is to be determined as though it were a dispute under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

SCHEDULES

Article 2

SCHEDULE 1

PART 1 AUTHORISED DEVELOPMENT

The authorised development is a nationally significant infrastructure project as defined in sections 14 and 22 of the 2008 Act( 101) and associated development within the meaning of section 115(2) of the 2008 Act( 102), comprising—

In the administrative area of Bedford Borough Council

Work No. 1– As shown on sheets 1 and 3 of the works plans the construction of the new dual carriageway (2140 metres in length) including tie in works, the construction of the Black Cat junction western, central and eastern bridges which form part of the Black Cat junction, retaining earth structures, slip roads to and from the Black Cat junction, and associated demolition works to the existing A421.

Work No. 2– As shown on sheet 1 of the works plans, a construction area including borrow pit to the north of the existing A421.

Work No. 3– As shown on sheet 1 of the works plans the construction of the realigned Roxton Road carriageway including the Roxton Road bridge, shared private access tracks and footpath, and associated demolition works to the existing Roxton Road bridge and existing Roxton Road.

Work No. 4– As shown on sheet 1 of the works plans the construction of the realigned Bedford Road into the Black Cat junction circulatory (Work No. 13), private access tracks, and associated demolition of the existing Bedford Road.

Work No. 5– As shown on sheet 1 of the works plans the construction of an attenuation basin to the south of the new dual carriageway (Work No. 1).

Work No. 6– As shown on sheets 1 and 1A of the works plans the diversion of an underground electricity cable (680 metres in length), commencing south west of the Black Cat junction and terminating to the north west of the Black Cat junction circulatory (Work No. 13).

Work No. 7– As shown on sheet 1 of the works plans the construction of the Kelpie Marina access road and bridleway, including—

(a) the construction of an access track, south of Bedford Road including the private field accesses and a bridleway which extends southwards;

(b) the construction of the Kelpie Marina access track including bridge and retaining earth structures, south of Rockham ditch.

Work No. 8– As shown on sheets 1 and 1A of the works plans the diversion and undergrounding of an overhead electricity line (685 metres in length) commencing at the A1 south of Rockham Ditch and terminating to the east of the A1 north of Greenacres.

Work No. 9– As shown on sheets 1 and 1C of the works plans the diversion of an underground communication cable (Openreach) (145 metres in length) commencing to the east of the A1 north of Greenacres and terminating east of the Kelpie Marina access road.

Work No. 10– As shown on sheet 1 of the works plans the construction of a flood compensation area to the west of the A1 and south of Rockham Ditch.

Work No. 11– As shown on sheet 1 of the works plans the construction of a flood compensation area to the west of the A1 and north of Rockham Ditch.

Work No. 12– As shown on sheet 1 of the works plans the construction of an attenuation basin, north west of the Black Cat junction circulatory (Work No. 13).

Work No. 13– As shown on sheet 1 of the works plans the construction of the Black Cat junction circulatory at existing grade, including the Black Cat junction northern and southern bridges and associated demolition of the existing Black Cat roundabout.

Work No. 14– As shown on sheet 1 of the works plans the construction of an attenuation basin, north east of the new Black Cat junction circulatory (Work No. 13).

Work No. 15– As shown on sheet 1 of the works plans the construction of a private access track to Greenacres, south-east of the Black Cat junction circulatory (Work No. 13), including the realigned section of the existing access track to Greenacres and an access track over Rockham ditch.

Work No. 16– As shown on sheet 1 of the works plans restoration works at the existing quarry, east of the new Black Cat junction circulatory (Work No. 13) including the removal of bunding east of the private access track.

Work No. 17– As shown on sheet 1 of the works plans a construction area to the south east of the new Black Cat junction circulatory (Work No. 13).

Work No. 18– As shown on sheets 1 and 2 of the works plans the construction of the new Roxton Road Link (south), including the Roxton Road roundabout and private accesses.

Work No. 19– As shown on sheets 1, 1B, 2 and 2B of the works plans the diversion of an underground water pipeline (2010 metres in length) commencing at the A1 east of School Lane and terminating at Chawston Lane.

Work No. 20– As shown on sheets 1, 1C, 2 and 2C of the works plans the diversion of an underground communication cable (Openreach) (2690 metres in length) commencing at School Lane and terminating at The Lane.

Work No. 21– As shown on sheets 1 and 2 of the works plans the construction of the realigned A1 carriageway, including the slip roads to and from the Black Cat junction circulatory (Work No. 13), retaining earth structures and the extension of the existing culverts across Rockham Ditch and South Brook, and associated demolition works to sections of the existing A1 and surrounding properties including the dismantling and removal of the listed building known as “Brook Cottages”.

Work No. 22– As shown on sheets 1, 2 and 3 of the works plans the construction of the new A1 Services link road, private accesses and a private access track extending to the new River Great Ouse Viaduct (Work No. 39).

Work No. 23– As shown on sheets 1 and 3 of the works plans a construction area including borrow pit north east of the new Black Cat junction circulatory (Work No. 13).

Work No. 24– As shown on sheets 1 and 3 of the works plans the construction of flood compensation areas, south and east of the Black Cat junction circulatory (Work No. 13).

Work No. 25– As shown on sheet 2 of the works plans the construction of a culvert beneath the Roxton Road Link (south) (Work No. 18).

Work No. 26– As shown on Sheet 2 of the works plans the construction of flood compensation areas, east and west of Roxton Road Link (south) (Work No. 18).

Work No. 27– As shown on sheets 2 and 2A of the works plans the diversion of an underground electricity cable (330 metres in length) commencing to the west of the Roxton Road Link (south) (Work No. 18), and terminating to the east of the Old Great North Road.

Work No. 28– As shown on sheets 2 and 2B of the works plans the diversion of an underground water pipeline (650 metres in length) commencing at Chawston Lane and terminating at The Lane.

Work No. 29– As shown on sheet 2 of the works plans the construction of the Roxton Road Link (north), the Nagshead Lane Link and private access tracks.

Work No. 30– As shown on sheet 2 of the works plans the construction of an attenuation basin located to the east of the new Roxton Road Link (north) (Work No.29) and west of the Nagshead Lane Link (Work No. 29).

Work No. 31– As shown on sheets 2 and 2B of the works plans the diversion of a private underground water pipeline (360 metres in length), commencing at Old Great North Road and terminating to the west of the Roxton Road Link (north) (Work No. 29).

Work No. 32– As shown on sheets 2 and 2A of the works plans the diversion and undergrounding of an overhead electricity line (355 metres in length), commencing at the Nagshead Lane Link (Work No. 29) and terminating to the south of The Lane.

Work No. 33– As shown on sheet 2 of the works plans the construction of an attenuation basin located to the east of the Roxton Road link (north) (Work No. 29).

Work No. 34– As shown on sheet 2 of the works plans construction of a flood compensation area to the east of the Roxton Road Link (north) (Work No. 29).

Work No. 35– As shown on Sheet 2 of the works plans construction of a flood compensation area to the west of the Roxton Road Link (north) (Work No. 29).

Work No. 36– As shown on sheet 2 of the works plans the realignment of The Lane carriageway, including a new access road, private means of access and associated demolition work to The Lane as existing.

Work No. 37– As shown on sheet 2 of the works plans improvements to Old Great North Road including modification of the existing associated junctions.

Work No. 38– As shown on sheet 3 of the works plans the diversion of an underground oil pipeline (270 metres in length) commencing south of the River Great Ouse Viaduct (Work No. 39) and terminating north of the River Great Ouse Viaduct.

In the administrative areas of Bedford Borough Council and Central Bedfordshire Council

Work No. 39– As shown on sheet 3 of the works plans the construction of the River Great Ouse Viaduct.

In the administrative area of Central Bedfordshire Council

Work No. 40– As shown on sheets 3 and 4 of the works plans the construction of the new dual carriageway (3100 metres in length) including lay-bys, culverts and a private access track.

Work No. 41– As shown on sheet 3 of the works plans the diversion of an underground gas pipeline (320 metres in length), commencing north of the new dual carriageway (Work No. 40) and terminating south of the new dual carriage way, west of the realigned Barford Road (Work No. 43).

Work No. 42– As shown on sheet 3 of the works plans the diversion of underground communication cables (Openreach, Vodafone and Virgin Media) (870 metres in length), commencing south of the new dual carriageway (Work No. 40) across the new Barford Road bridge (Work No. 43) and terminating north of the new dual carriageway.

Work No. 43– As shown on sheet 3 of the works plans the construction of the realigned Barford Road including the Barford Road bridge, private accesses and private access tracks, and associated demolition to the existing Barford Road.

Work No. 44– As shown on sheet 3 of the works plans the diversion of an underground water pipeline (1220 metres in length), commencing north of the new dual carriageway (Work No. 40) and terminating south of the new dual carriageway, east of the realigned Barford Road (Work No. 43).

Work No. 45– As shown on sheet 3 of the works plans the diversion of an underground communication cable (Openreach) (440 metres in length) generally following the access track constructed to the east of the realigned Barford Road (Work No. 43).

Work No. 46– As shown on sheet 3 of the works plans the construction of an attenuation basin east of the realigned Barford Road (Work No. 43) and north of the new dual carriageway (Work No. 40).

Work No. 47– As shown on sheet 3 of the works plans the diversion of an underground electricity cable (220 metres in length), commencing north of the new dual carriageway (Work No. 40) and terminating south of the new dual carriageway, east of the realigned Barford Road (Work No. 43).

Work No. 48– As shown on sheet 3 of the works plans the construction of flood compensation areas north and south of the new dual carriageway (Work No. 40), including a culvert connecting them.

Work No. 49– As shown on sheet 4 of the works plans the diversion of an underground electricity cable (260 metres in length) commencing north of the new dual carriageway (Work No. 40) and terminating south of the new dual carriageway, west of the East Coast Main Line Bridge (Work No. 50).

Work No. 50– As shown on sheet 4 of the works plans the construction of the East Coast Main Line Bridge, including private access tracks.

Work No. 51– As shown on sheet 4 of the works plans the diversion of an underground gas pipeline (270 metres in length), commencing north of the new dual carriageway (Work No. 40) and terminating south of the new dual carriageway, east of the East Coast Main Line Bridge (Work No. 50).

Work No. 52– As shown on sheet 4 of the works plans the diversion of an underground electricity cable (630 metres in length), commencing north of the new dual carriageway (Work No. 40) and terminating south of the new dual carriageway, east of the East Coast Main Line Bridge (Work No. 50).

Work No. 53– As shown on sheet 4 of the works plans the construction of an attenuation basin, south of the new dual carriageway (Work No. 40).

In the administrative area of Central Bedfordshire Council and Bedford Borough Council

Work No. 53A– As shown on sheet 4 of the works plans the construction of a bat tunnel (mammal underpass).

In the administrative area of Bedford Borough Council

Work No. 54– As shown on sheets 4 and 5 of the works plans the construction of the new dual carriageway (1410 metres in length), including associated demolition work to the existing access track from Top Farm.

Work No. 55– As shown on sheets 4 and 5 of the works plans the construction of private access tracks and the Top Farm accommodation bridge.

Work No. 56– As shown on sheet 5 of the works plans the diversion of an underground electricity cable (210 metres in length), commencing west of the new dual carriageway (Work No. 54) and terminating east of the new dual carriageway, south of the Top Farm accommodation bridge (Work No. 55).

In the administrative area of Huntingdonshire District Council

Work No. 57– As shown on sheets 5, 6 and 8 to 12 (inclusive) of the works plans the construction of the new dual carriageway (8900 metres in length), including lay-bys, culverts and the construction of slip roads to and from the roundabouts at Cambridge Road junction north and south Roundabouts (Work No. 80b).

Work No. 58– As shown on sheet 5 of the works plans the diversion of an underground electricity cable (340 metres in length), commencing west of the new dual carriageway (Work No. 57) and terminating east of the new dual carriageway.

Work No. 59– As shown on sheet 5 of the works plans the construction of a flood compensation area between Potton Road and the new dual carriageway (Work No. 57), including a culvert and the diversion of a watercourse (50 metres in length).

Work No. 60– As shown on sheets 5 and 6A of the works plans the diversion of an underground water pipeline (450 metres in length), commencing to the west side of the realigned Potton Road (Work No. 64) and terminating to the north of the new dual carriageway (Work No. 57).

Work No. 61– As shown on sheets 5, 6 and 6A of the works plans the diversion of two underground water pipelines (varying in length from 210 to 380 metres) including—

(a) the diversion of an underground water pipeline (380 metres in length) commencing west of the realigned Potton Road (Work No. 64) crossing the new dual carriageway (Work No. 57) and terminating north beyond Work No. 61b; and

(b) the diversion of an underground water pipeline (210 metres in length) commencing west of the realigned Potton Road (Work No. 64) and terminating west of the new dual carriageway (Work No. 57).

Work No. 62– As shown on sheets 5, 6 and 6A of the works plans the diversion of an underground water pipeline (200 metres in length) commencing west of the realigned Potton Road (Work No. 64) and terminating west of the new dual carriageway (Work No. 57).

Work No. 63– As shown on sheets 5, 6 and 6C of the works plans the diversion of an underground electricity cable (280 metres in length) commencing east of the realigned Potton Road (Work No. 64) and terminating west of the new dual carriageway (Work No. 57).

Work No. 64– As shown on sheets 5 and 6 of the works plans the construction of the realigned Potton Road including a private means of access and associated demolition work to the existing Potton Road.

Work No. 65– As shown on sheets 5, 6 and 6B of the works plans the diversion of an underground communication cable (Openreach) (1330 metres in length), commencing west of the new dual carriageway (Work No. 57) continuing east along the B1046 Bridge and the realigned B1046 (Work No. 68) south of the new dual carriageway, including a branch extending southwards (280 metres in length) along the realigned Potton Road (Work No. 64).

Work No. 66– As shown on sheets 5, 6 and 6A of the works plans the diversion of an underground water pipeline (380 metres in length) commencing west of the realigned Potton Road (Work No. 64) and terminating east of the new dual carriage way (Work No. 57).

Work No. 67– As shown on sheets 6 and 6C of the works plans the diversion of an underground electricity cable (520 metres in length) commencing west of the new dual carriage way (Work No. 57) and terminating east of the new dual carriageway.

Work No. 68– As shown on sheets 6 and 8 of the works plans the construction of the realigned B1046, including the emergency access and maintenance tracks, private access tracks both sides of the new dual carriageway (Work No. 57), the construction of the B1046 Bridge and the associated demolition work to the existing B1046.

Work No. 69– As shown on sheets 6 and 6C of the works plans the diversion of an underground electricity cable (1220 metres in length) commencing west of the new dual carriageway (Work No. 57) and terminating east of the new dual carriageway along the realigned B1046 (Work No. 68).

Work No. 69A– As shown on sheets 6 and 6C of the works plans the diversion of an underground electricity cable (240 metres in length), crossing the realigned B1046, west of the B1046 Bridge (Work No. 68).

Work No. 69B– As shown on sheets 6 and 6C of the works plans the diversion of an underground electricity cable (245 metres in length), crossing the realigned B1046, west of the B1046 Bridge (Work No. 68).

Work No. 70– As shown on sheet 6 of the works plans the construction of an attenuation basin east of the new dual carriageway (Work No. 57).

Work No. 71– As shown on sheet 6 of the works plans the construction of a flood compensation area, east of the new dual carriageway (Work No. 57).

Work No. 72– As shown on sheet 6 of the works plans the construction of a new underpass with footpath and culvert at Hen Brook.

Work No. 73– As shown on sheet 6 of the works plans the construction of an attenuation basin east of the new dual carriageway (Work No. 57), north of Hen Brook.

Work No. 74– As shown on sheet 7 of the works plans a construction compound north west of the existing A428, between the B1046 and Hen Brook.

Work No. 75– As shown on sheet 8 of the works plans the construction of a culvert at Wintringham Brook across the new dual carriageway (Work No. 57).

Work No. 76– As shown on sheet 8 of the works plans the construction of an attenuation basin east of the new dual carriageway (Work No. 57).

Work No. 77– As shown on sheet 8 of the works plans the construction of a realigned footpath, including the proposed footbridge over the new dual carriageway (Work No. 57).

Work No. 78– As shown on sheet 8 of the works plans the construction of a culvert across the new dual carriageway (Work No. 57), south of the new attenuation basin (Work No. 79).

Work No. 79– As shown on sheet 8 of the works plans the construction of an attenuation basin between the existing A428 and the new dual carriageway (Work No. 57).

Work No. 80– As shown on sheets 8 and 9 of the works plans the construction of the Cambridge Road junction, including—

(a) the construction of the realigned A428 between the existing Cambridge Road Roundabout and the Cambridge Road junction north Roundabout (Work No. 80b) and private access tracks;

(b) the construction of the Cambridge Road junction north and south Roundabouts, the Cambridge Road Junction Dumbbell Link Road and a private access track; and

(c) the construction of the realigned A428 from the Cambridge Road junction south Roundabout (Work No. 80b) and private access tracks including associated demolition work to the existing A428 carriageway.

Work No. 81– As shown on sheets 8 and 9 of the works plans the diversion of underground communication cables (Openreach, Vodafone and Virgin Media) (each 1030 metres in length), commencing at the existing Cambridge Road Roundabout and terminating east of the Cambridge Road junction south Roundabout (Work No. 80b).

Work No. 82– As shown on sheet 9 of the works plans the diversion of an underground electricity cable (420 metres in length), commencing north of the new dual carriageway (Work No. 57) and terminating south of the new dual carriageway, east of the Cambridge Road junction south Roundabout (Work No. 80b).

Work No. 83– As shown on sheet 9 of the works plans the construction of an attenuation basin, east of the Cambridge Road junction south Roundabout (Work No. 80b).

Work No. 84– As shown on sheet 9 of the works plans the construction of an attenuation basin, south of the new dual carriageway (Work No. 57).

Work No. 85– As shown on sheets 9 and 10 of the works plans the construction of a shared private access track and bridleway, the construction of a new accommodation bridge across the new dual carriageway (Work No. 57), including—

(a) the demolition of the existing access track and bridleway; and

(b) the construction of a bridleway to the south, reconnecting Bridleway 1/18.

Work No. 86– As shown on sheet 10 of the works plans the construction of a culvert at Fox Brook across the new dual carriageway (Work No. 57).

Work No. 87– As shown on sheet 10 of the works plans the construction of a culvert at Gallow Brook across the new dual carriageway (Work No. 57).

Work No. 88– As shown on sheets 10 and 11 of the works plans the construction of an attenuation basin, south of the new dual carriageway (Work No. 57).

In the administrative areas of Huntingdonshire District Council and South Cambridgeshire District Council

Work No. 89– As shown on sheet 11 of the works plans the construction of the realigned Toseland Road, including the Toseland Road Bridge, emergency and maintenance access tracks, private accesses and private access tracks north and south of the new dual carriageway (Work No. 57), the extension of a culvert at Gallow Brook and the associated demolition work to the existing Toseland Road.

Work No. 90- As shown on sheet 11 of the works plans the diversion of an underground communication cable (Openreach) (580 metres in length) commencing north of the new dual carriageway (Work No. 57) and terminating south of the new dual carriageway, across the Toseland Road Bridge (Work No. 89).

In the administrative area of South Cambridgeshire District Council

Work No. 91- As shown on sheets 12 to 15 of the works plans the construction of the new dual carriageway (3800 metres in length) including tie in works, lay-bys, culverts and the A1198 underpass at Caxton Gibbet junction, as well as slip roads to and from Caxton Gibbet junction north, south and south west Roundabouts (Work Nos. 109b and 109d).

Work No. 92– As shown on sheet 12 of the works plans the construction of a combined bridleway and watercourse underpass to the west of the attenuation basin (Work No. 93), including the diversion of a section of the West Brook tributary.

Work No. 93– As shown on sheet 12 of the works plans the construction of an attenuation basin, north of the new dual carriageway (Work No. 91).

Work No. 94– As shown on sheet 12 of the works plans the construction of an attenuation basin south of the realigned A428 (Work No. 98a).

Work No. 95– As shown on sheets 12, 13 and 13B of the works plans the diversion of an underground water utility (1360 metres in length) commencing east of the B1040 (south) and terminating north of the Eltisley Link north Roundabout (Work No. 98b).

Work No. 96– As shown on sheets 12, 13 and 13A of the works plans the diversion of an underground communication cable (Openreach) (1330 metres in length) commencing north of Eltisley and terminating north of the Eltisley Link north Roundabout (Work No. 98b).

Work No. 97– As shown on sheets 12, 13 and 13A of the works plans the diversion of underground communication cables (Openreach, Vodafone and Virgin Media) (1710 metres in length) commencing north of Eltisley and terminating north of the attenuation basin (Work No. 101).

Work No. 98– As shown on sheets 12 and 13 of the works plans the construction of the new Eltisley Link, including—

(a) the construction of the realigned A428 west of the Eltisley Link south Roundabout and private access tracks and associated demolition works to the existing B1040 (north);

(b) the construction of Eltisley bridge and associated link road, the Eltisley Link north and south Roundabouts, and private access tracks;

(c) the construction of the realigned Cambridge Road connecting to the Eltisley Link south Roundabout (Work No. 98b);

(d) the construction of the realigned B1040 (north) connecting to the Eltisley Link north Roundabout (Work No. 98b); and

(e) the construction of the realigned A428 east from the Eltisley Link North roundabout including a private access track.

Work No. 99– As shown on sheets 13 and 13B of the works plans the diversion and undergrounding of an overhead electricity line (730 metres in length) commencing south of the existing A428 and terminating north of the realigned A428 (Work No. 98e).

Work No. 100– As shown on sheets 13 and 13B of the works plans the diversion of an underground water pipeline (1005 metres in length) commencing south of the Eltisley Link south Roundabout (Work No. 98b) and terminating north of the Eltisley Link north Roundabout (Work No. 98b).

Work No. 101– As shown on sheet 13 of the works plans the construction of an attenuation basin north of the new dual carriageway (Work No. 91).

Work No. 102– As shown on sheet 13 of the works plans the construction of an attenuation basin north of the new dual carriageway (Work No. 91).

Work No. 103– As shown on sheets 13, 13B, 14 and 14A of the works plans the diversion of an underground water pipeline (2500 metres in length) commencing north east of the Eltisely Link south Roundabout (Work No. 98b) and terminating east of the Caxton Gibbet junction south Roundabout (Work No. 109b).

Work No. 104– As shown on sheets 13, 14 and 14B of the works plans the diversion of underground communication cables (Openreach, Vodafone and Virgin Media) (1580 metres in length) commencing east of the attenuation basin (Work No. 102) and terminating east of the Caxton Gibbet junction south Roundabout (Work No. 109b) including—

(a) a branch of one of the underground communication cables (Openreach) extending northwards (180 metres in length) along the A1198 and terminating north of the Caxton Gibbet junction north Roundabout (Work No. 109b); and

(b) a branch of one of the underground communication cables (Virgin Media) extending northwards (140 metres in length) along the A1198 and terminating north of the Caxton Gibbet junction north Roundabout (Work No. 109b).

Work No. 105– Not Used.

Work No. 106– As shown on sheet 14 of the works plans a construction area including borrow pit north west of the Caxton Gibbet junction (Work No. 109).

Work No. 107– As shown on sheets 14 and 14A of the works plans the diversion of an underground water pipeline (700 metres in length) commencing north of the Caxton Gibbet junction north Roundabout (Work No. 109b) and terminating east of the Caxton Gibbet junction south Roundabout (Work No. 109c).

Work No. 108– As shown on sheet 14 of the works plans the construction of an attenuation basin, north of the new dual carriageway (Work No. 91).

Work No. 109– As shown on sheets 13, 14 and 15 of the works plans the construction of the Caxton Gibbet junction, including—

(a) the realignment of the existing A428 commencing 200 metres west of Work No. 102 and terminating at Caxton Gibbet junction north Roundabout (Work No.109b), including the construction of a private means of access;

(b) the construction of the Caxton Gibbet junction north Roundabout and Caxton Gibbet junction dumbbell link Road, as well as modifications to the existing Caxton Gibbet roundabout (now Caxton Gibbet junction south Roundabout), including partial demolition and modification of a section of the existing A1198 carriageway;

(c) the construction of a shared private means of access and bridleway from Caxton Gibbet junction north Roundabout (Work No.109b) to Brockley Road; and

(d) the construction of the Caxton Gibbet junction south west Roundabout, including the construction of the new link road to and from the Caxton Gibbet junction south Roundabout (Work No.109b), the construction of a private means of access off the roundabout and the demolition of an adjacent property to the north.

Work No. 110– As shown on sheets 14, 14A and 15 of the works plans the diversion and undergrounding of an overhead electricity line (1800 metres in length), commencing west of the Caxton Gibbet junction south west Roundabout (Work No. 109d) continuing east along the realigned A428 past the Caxton Gibbet junction north Roundabout, and terminating at Brockley Road including a branch extending northwards (125 metres in length) from the centre line of the realigned A428 (Work No. 109a) west of the A1198 and an additional branch extending southwards (330 metres in length) across the new dual carriageway (Work No. 91) west of the Caxton Gibbet junction north Roundabout.

Work No. 111– As shown on sheets 14 and 15 of the works plans a construction area including borrow pit and site compound area north-east of the Caxton Gibbet junction north Roundabout (Work No. 109b).

In connection with the construction of any of those works, further associated development within the Order limits consisting of—

(a) alteration to the layout of any street permanently or temporarily, including but not limited to increasing or reducing the width of the carriageway of the street by reducing or increasing the width of any kerb, footpath, footway, cycle track, bridlepath or verge within the street; and altering the level of any such kerb, footpath, footway, cycle track or verge;

(b) works required for the strengthening, improvement, maintenance or reconstruction of any street;

(c) refurbishment works to any existing bridge or culvert;

(d) the strengthening, alteration or demolition of any building;

(e) works in the verges of public highways;

(f) temporary diversions of public highways, including laying down or hard surfacing on any land to be used as a temporary diversion;

(g) creation and removal of ramps, means of access, non-motorised routes or links, footpaths, footways, cycle tracks, bridleways, bridlepaths, equestrian tracks, restricted byways, lay-bys and crossing facilities, including the hard surfacing of ways;

(h) embankments, cuttings, viaducts, bridges, aprons, abutments, shafts, foundations, retaining walls, barriers, pumping stations, parapets, drainage, drainage treatment areas, ponds, lagoons, outfalls, scour protection, ditches, pollution control devices, wing walls, firefighting system, water tanks and associated plant and equipment, highway lighting, closed circuit television infrastructure, variable message signs, parking enforcement cameras, culverts and headwalls;

(i) street works, including breaking up or opening up a street, or any sewer, drain or tunnel under it; tunnelling or boring under a street;

(j) works to place, alter, remove or maintain street furniture or apparatus in a street, or apparatus in other land, including mains, sewers, drains, pipes, cables, ducts and lights;

(k) works to place, alter, divert, relocate, protect, remove or maintain the position of apparatus (including statutory undertakers’ apparatus), services, plant and other equipment in, under or above a street, or in other land, including mains, sewers, drains, pipes, lights, cables, fencing and other boundary treatments;

(l) works to alter the course of or otherwise interfere with a watercourse, including private water supplies;

(m) areas of hard or soft landscaping works, re-grading, re-profiling, contouring, noise bunds and barriers, creation of or alteration to badger setts, associated with the provision of ecological, environmental and archaeological mitigation or enhancement and other works to mitigate any adverse effects of the construction, operation or maintenance of the authorised development;

(n) works comprising settlement monitoring and mitigation measures for the benefit or protection of, or in relation to, any land, building or structure, including monitoring and safeguarding or existing infrastructure, utilities and services affected by the authorised development;

(o) site preparation works, site clearance (including fencing and other boundary treatments, vegetation removal, demolition of existing structures and the creation of alternative highways or footpaths); earthworks (including soil stripping and storage and site levelling), site restoration, remediation of contamination;

(p) the felling of trees and hedgerows;

(q) the establishment of site construction compounds and working sites, temporary structures, storage areas (including storage of excavated material, fuel and other materials), temporary vehicle parking, fencing and other enclosures, construction-related buildings, welfare facilities, office facilities, other ancillary accommodation, construction lighting, haul roads and other buildings, machinery, apparatus, processing or batching plant, site precast concrete facility, crushing plant, works and conveniences;

(r) the provision of other works including pavement works, kerbing and paved areas works, signing, signals, gantries, street lighting, road restraints, road markings works, traffic management measures including temporary roads and such other works as are associated with the construction of the authorised development;

(s) removal, alteration and creation of boundary features including fencing and hedgerows;

(t) works to replace or relocate the Black Cat sign currently situated in the centre of the existing Black Cat junction and works to relocate milestones or mileposts; and

(u) such other works, working sites, storage areas and works of demolition, as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the authorised development which do not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement.

PART 2 ANCILLARY WORKS

1.  Works within the Order limits which have been subject to an environmental impact assessment recorded in the environmental statement comprising—

(a) temporary landing places, moorings or other means of accommodating vessels in the construction and/or maintenance of the authorised development;

(b) marking buoys, beacons, fenders and other navigational warning or ship impact protection works; and

(c) temporary works for the benefit or protection of land or structures affected by the authorised development.

Article 4

SCHEDULE 2 REQUIREMENTS

PART 1 REQUIREMENTS

Interpretation

1.  In this Schedule—

“ archaeological mitigation strategy” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the archaeological mitigation strategy for the purposes of this Order;

“ biodiversity pre-commencement plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the biodiversity pre-commencement plan for the purposes of this Order;

“ Brook Cottages heritage strategy” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the Brook Cottages heritage strategy for the purposes of this Order;

“ Brook Cottages soft strip” means the soft strip referred to in the Brook Cottages heritage strategy at section 3;

“ contaminated land” means land which the undertaker considers would amount to contaminated land within the meaning given in section 78A(2)(a) or (b) of the Environmental Protection Act 1990( 103);

“ DMRB” means the Design Manual for Roads and Bridges, which accommodates all current standards, advice and other documents relating to the design, assessment and operation of trunk roads and motorways, or any equivalent replacement to the DMRB published;

“ Ecological Clerk of Works” means the individual appointed as such by the undertaker as required by the First Iteration EMP;

“ First Iteration EMP” means the document of that description listed in Schedule 10 (documents to be certified), being the first iteration of the environmental management plan produced in accordance with the DMRB during the preliminary design stage and certified by the Secretary of State as the First Iteration EMP for the purposes of this Order, and which includes an outline plan for the following—

“ European protected species” has the same meaning as in regulations 42 (European protected species of animals) and 46 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2017( 104);

“ flood risk assessment” means the document of that description including the flood risk assessment technical note as listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the flood risk assessment for the purposes of this Order;

“ outline construction traffic management plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the outline construction traffic management plan for the purposes of this Order;

“ pre-commencement plan” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the pre-commencement plan for the purposes of this Order;

“ priority habitat” means a type of habitat identified as being of principle importance in England in accordance with section 41 (biodiversity lists and actions (England)) of the Natural Environment and Rural Communities Act 2006( 105);

“ protected species” means species which are subject to protection under the laws of England or which are European protected species;

“ relevant local authority” means a local authority within the meaning given by section 43(3)( 106) of the 2008 Act and in whose area the part of the authorised development in question is located;

“ relevant stakeholders” in relation to a part of the authorised development means relevant local authorities and relevant statutory environmental bodies;

“ relevant statutory environmental body” means a statutory body exercising functions relating to environmental matters and which because of those functions is likely to be interested in the detailed design of the part of the authorised development in question;

“ scheme design approach and design principles” means the document of that description listed in Schedule 10 (documents to be certified) and certified by the Secretary of State as the scheme design approach and design principles for the purposes of this Order;

“ Second Iteration EMP” means the second iteration of the environmental management plan produced in accordance with the DMRB containing detailed plans relating to the construction phase of the authorised development substantially in accordance with the First Iteration EMP;

“ Third Iteration EMP” means the third iteration of the environmental management plan produced in accordance with the DMRB containing detailed plans relating to the operational and maintenance phase of the authorised development substantially in accordance with the First Iteration EMP.

Time limits

2.  The authorised development must not begin later than the expiration of 5 years from the date on which this Order comes into force.

Second Iteration EMP

3.—(1) No part of the authorised development is to commence until the Second Iteration EMP in relation to that part has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority, the Environment Agency, Natural England, and the relevant local highway authority so far as it is relevant to their respective functions.

(2) The authorised development must be constructed in accordance with the Second Iteration EMP.

Third Iteration EMP

4.—(1) Following completion of construction of the authorised development the Third Iteration EMP must be submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority and the relevant local highway authority so far as it is relevant to their respective functions.

(2) The authorised development must be operated and maintained in accordance with the Third Iteration EMP.

Details of consultation

5.—(1) With respect to any requirement which requires details to be submitted to the Secretary of State for approval under this Schedule following consultation with another party, the details submitted must be accompanied by a summary report enclosing the written responses received and setting out the consultation undertaken by the undertaker pursuant to that requirement to inform the details submitted and the undertaker’s response to that consultation.

(2) Promptly after submission to the Secretary of State for approval, the undertaker must provide a copy of the summary report referred to under paragraph (1) to the relevant consultees referred to in the requirement in relation to which approval is being sought from the Secretary of State.

Landscaping

6.—(1) No part of the authorised development can come into use until a landscaping scheme for that part which sets out details of all proposed hard and soft landscaping works is submitted to the Secretary of State for approval in writing following consultation with Natural England, the relevant planning authority and the relevant local highway authority so far as it is relevant to their respective functions.

(2) The landscaping scheme for each part must be substantially in accordance with the applicable mitigation measures for landscaping set out in the First Iteration EMP and the landscaping principles set out in the environmental masterplan.

(3) The authorised development must be landscaped in accordance with the approved landscaping scheme for that part.

(4) A landscaping scheme referred to in paragraph (1) must contain details of—

(a) location, number, species, mix, size and planting density of any proposed planting;

(b) cultivation, importing of materials and other operations to ensure plant establishment;

(c) proposed finished ground levels;

(d) existing trees to be retained, with measures for their protection during the construction period; and

(e) implementation timetables for all landscaping works.

(5) All landscaping works must be carried out to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards or other recognised codes of good practice.

(6) Any tree or shrub planted as part of a landscaping scheme that, within a period of 5 years after planting, is removed, dies or becomes in the opinion of the relevant planning authority, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted, unless the Secretary of State, following consultation with the relevant planning authority, gives consent to a variation.

Fencing

7.  Any permanent and temporary fencing and other means of enclosure that would be adjacent to the new dual carriageway forming part of the authorised development must be constructed and installed in accordance with the undertaker’s Manual of Contract Documents for Highway Works except where any departures from that manual are agreed in writing by the Secretary of State in connection with the authorised development.

Contaminated land and groundwater

8.—(1) In the event that contaminated land, including groundwater, is found at any time when carrying out the authorised development, which was not previously identified in the environmental statement, it must be reported as soon as reasonably practicable to the Secretary of State, the Environment Agency and the relevant planning authority, and the undertaker must complete a risk assessment of the contamination in consultation with the Environment Agency and the relevant planning authority.

(2) Where the undertaker determines that remediation of the contaminated land is necessary, a written scheme and programme for the remedial measures to be taken to render the land fit for its intended purpose must be submitted to and approved in writing by the Secretary of State, following consultation with the Environment Agency and the relevant planning authority.

(3) Remediation must be carried out in accordance with the approved scheme.

Archaeology

9.  The authorised development must be carried out, operated and maintained in accordance with the archaeological mitigation strategy and, as set out in that strategy, the undertaker must submit individual Site Specific Written Schemes of Investigation to the relevant planning authority for approval.

Protected species

10.—(1) In the event that any protected species which were not previously identified in the environmental statement or nesting birds are found at any time when carrying out the authorised development the undertaker must—

(a) cease the relevant parts of the relevant works and report it immediately to the Ecological Clerk of Works; and

(b) prepare a written scheme for the protection and mitigation measures of such protected species or nesting birds when carrying out the authorised development.

(2) The undertaker must implement the written scheme prepared under paragraph (1) immediately and construction in the area specified in the written scheme must not recommence until any necessary licences are obtained to enable mitigation measures to be implemented.

Traffic management

11.—(1) No part of the authorised development is to commence until a traffic management plan for the construction of that part of the authorised development, substantially in accordance with the outline construction traffic management plan, has been submitted to and approved in writing by the Secretary of State following consultation with the relevant local highway authority.

(2) The authorised development must be constructed in accordance with the approved traffic management plan.

Detailed design

12.—(1) The detailed design for the authorised development must accord with—

(a) the preliminary scheme design shown on the works plans, the general arrangement plans and the engineering section drawings;

(b) the principles set out in the environmental masterplan; and

(c) the design principles set out in the scheme design approach and design principles,

unless otherwise agreed in writing by the Secretary of State following consultation with the relevant local authority on matters related to their functions, provided that the Secretary of State is satisfied that any amendments would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(2) Where amended details are approved by the Secretary of State under paragraph (1), those details are deemed to be substituted for the corresponding plans or sections and the undertaker must make those amended details available in electronic form for inspection by members of the public.

(3) No part of the authorised development is to commence until, for that part, a report has been submitted to, and, following consultation with the relevant local planning authority, approved by the Secretary of State, demonstrating that—

(a) the undertaker has engaged with relevant stakeholders on refinements to detailed design for that part of the authorised development;

(b) the undertaker has had regard to the relevant stakeholders’ comments; and

(c) any refinements to the detailed design for that part of the authorised development arising as a result of that engagement accord with the scheme design approach and design principles.

Surface and foul water drainage

13.—(1) No part of the authorised development is to commence until for that part written details of the surface and foul water drainage system, reflecting the mitigation measures set out in the engineering section drawings (drainage layouts) including means of pollution control, have been submitted to and approved in writing by the Secretary of State following consultation with the relevant local authority on matters relating to its function.

(2) The surface and foul water drainage system must be constructed in accordance with the approved details referred to in paragraph (1) unless otherwise agreed in writing by the Secretary of State following consultation with the relevant local authority on matters relating to its function, provided that the Secretary of State is satisfied that any amendments to the approved details would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

Flood compensatory storage

14.—(1) Subject to paragraph (2) below, no part of the authorised development is to commence until a detailed floodplain compensation scheme for that part has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority and the Environment Agency.

(2) No part of the authorised development at the River Great Ouse is to commence until a detailed floodplain compensation scheme for that part has been submitted to and approved in writing by the Secretary of State, following consultation with the Environment Agency.

(3) The schemes prepared under paragraphs (1) and (2) must provide suitable flood storage for any flood waters that would be displaced by the authorised development in the 1 in 100 year plus 35% climate change allowance event.

(4) The scheme must be implemented as approved and subsequently maintained.

Safeguarding of milestones

15.  Any work to the grade II listed milestones with National Heritage Numbers 1163534, 1331394 and 1162760 and the non-designated milestone Historic Environment Record Reference 8808 must be carried out in accordance with the archaeological mitigation strategy.

Brook Cottages

16.—(1) Subject to paragraphs (2) and (5), the dismantling of Brook Cottages comprised within Work No. 21 must be carried out in accordance with the Brook Cottages heritage strategy unless otherwise agreed with the Secretary of State.

(2) At the completion of the Brook Cottages soft strip, the undertaker must provide to Historic England and Bedford Borough Council a report containing—

(a) information on the heritage interest and significance of Brook Cottages;

(b) details of the existing physical condition of Brook Cottages; and

(c) in light of (a) and (b) above, options for dismantling Brook Cottages and if relevant, storing, transporting and reconstructing those elements of Brook Cottages that could be relocated to conserve the historic fabric.

(3) Within 35 days of receipt of the information set out in paragraph (2), Historic England, in consultation with Bedford Borough Council, must advise the undertaker of the suitability of proceeding with relocation and, if Historic England advises that the historic fabric is suitable for relocation, it must confirm an approved method of dismantling and storing the historic fabric.

(4) Unless Historic England, in consultation with Bedford Borough Council, advise that the historic fabric is suitable for relocation within 35 days in accordance with paragraph (3) the undertaker must proceed with dismantling and recording as set out in the Brook Cottages heritage strategy but is not required to take any further steps in relation to relocation.

(5) If Historic England, in consultation with Bedford Borough Council, advises that the historic fabric is suitable for relocation then, unless otherwise agreed with the Secretary of State, the undertaker must complete the dismantling and store the historic fabric using the approved method confirmed by Historic England under paragraph (3).

(6) As soon as reasonably practicable following dismantling and storage of the historic fabric in accordance with paragraph (5) the undertaker must submit to the Secretary of State for approval in consultation with Bedford Borough Council and Historic England, either—

(a) details demonstrating why reconstruction is not appropriate; or

(b) details of—

(i) an appropriate future use for the historic fabric;

(ii) a suitable receptor willing to receive the historic fabric;

(iii) the method of transporting the historic fabric for reconstruction;

(iv) a schedule of works for reconstruction; and

(v) a timetable for the completion of the reconstruction.

(7) In the event that the Secretary of State approves details for the relocation of the historic fabric under sub-paragraph (6)(b), the undertaker must relocate the historic fabric in accordance with the details so approved, unless otherwise agreed with the Secretary of State.

(8) The undertaker must provide a copy of the level 3 record to Bedford Borough Council and Historic England on completion of the dismantling.

(9) The level 3 record referred in sub-paragraph (8) is a record prepared in accordance with the Brook Cottages heritage strategy which conforms to a level 3 archaeological record, as defined in Historic England’s Understanding Historic Buildings: A Guide to Good Recording Practice (2016).

Highway Lighting

17.—(1) No part of the authorised development may be brought into use until a written scheme of the proposed highway lighting to be provided for that part of the authorised development has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant local authority on matters relating to its function.

(2) The highway lighting scheme referred to in paragraph (1) must encompass the specification, level of provision, energy efficiency, light spillage, intensity and brightness of the highway lighting and must—

(a) reflect the mitigation measures included in Chapter 8 Biodiversity and Chapter 14 Climate of the environmental statement; or

(b) where it materially differs from these measures, must demonstrate that the mitigation proposed would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(3) The highway lighting must be provided in accordance with the approved details referred to in paragraph (1).

(4) Nothing in this requirement restricts the lighting of the authorised development during its construction or where temporarily required for maintenance.

Noise Mitigation

18.—(1) No part of the authorised development is to commence until written details of the proposed noise mitigation for the use and operation of that part of the authorised development, including noise barriers, noise bunds and low noise surfacing, has been submitted to and approved in writing by the Secretary of State, following consultation with the relevant planning authority.

(2) The written details referred to in paragraph (1) must—

(a) reflect the mitigation measures for operation included in Chapter 11 Noise and Vibration, of the environmental statement; or

(b) where it materially differs from these measures, must demonstrate that the mitigation proposed would not give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement.

(3) The noise mitigation must be provided in accordance with the approved details referred to in paragraph (1) and must be retained thereafter.

Construction hours

19.—(1) Construction work for the authorised development must only take place between 0700 hours and 1800 hours Monday to Friday, and 0700 hours to 1300 hours on Saturdays, with no activity on Sundays or bank holidays, except as specified in paragraphs (2) and (3).

(2) Outside the hours and days specified in paragraph (1), daily start up and shut down is permitted and construction work may be undertaken for essential activities comprising—

(a) bridge and gantry demolition and installation including the installation of safety systems;

(b) works over and adjacent to the East Coast Main Line railway;

(c) lifting operations;

(d) site clearance of vegetation adjacent to live carriageways;

(e) site clearance of signs, street furniture and lighting columns adjacent to live carriageways;

(f) any oversize deliveries or deliveries where daytime working would be excessively disruptive to normal traffic operation, including delivery of plant;

(g) junction and highway tie-in works;

(h) installation of temporary and permanent line markings;

(i) traffic management measures and signal changes;

(j) installation of signs and technology;

(k) any emergency works or operations required for safe working;

(l) completion of activities already begun which require continuous periods of operation, such as completing concrete pouring; or

(m) non-intrusive environmental and engineering surveys.

(3) Outside the hours and days specified in paragraph (1), the undertaker may with the prior written consent of the relevant planning authority carry out the following activities—

(a) concrete pours and piling, diaphragm wall works, pavement operations;

(b) work associated with the diversion of existing utilities, including the removal of overhead power lines;

(c) earthworks operations, including excavation, filling, transport, placing and compacting of earthworks material;

(d) intrusive environmental and engineering surveys; or

(e) activities assessed in the environmental statement or which would not give rise to new or materially different effects from those assessed in the environmental statement which do not fall within paragraph (2).

Pre-commencement works

20.  Any pre-commencement works must be carried out in accordance with the biodiversity pre-commencement plan and the pre-commencement plan.

Flood risk assessment

21.—(1) Subject to sub-paragraph (2), the authorised development must be carried out in accordance with the flood risk assessment, including the mitigation measures detailed in it, so that no part of the authorised development is predicted to result in any exceedance of the flood levels to properties and land shown in the flood risk assessment.

(2) Sub-paragraph (1) does not apply in any circumstance where the undertaker proposes to carry out a part of the authorised development otherwise than in accordance with the flood risk assessment and either demonstrates to the Secretary of State’s satisfaction, in consultation with the Environment Agency, that the part of the authorised development concerned would not result in an exceedance of the flood levels shown in the flood risk assessment beyond 10mm or demonstrates that all affected landowners accept the predicted exceedance of the flood levels shown in the flood risk assessment.

Construction phase local traffic monitoring

22.—(1) No part of the authorised development is to commence until a construction phase local traffic monitoring scheme for the locations identified in the outline construction traffic management plan has been submitted to, and, following consultation with the relevant local highway authority, approved by the Secretary of State.

(2) The construction phase local traffic management scheme must include—

(a) a survey to assess baseline traffic at the locations identified in the outline construction traffic management plan;

(b) the methodology to be used to collect the required data;

(c) the periods over which construction phase traffic is to be monitored;

(d) proposals for the submission of the survey data collected and an interpretative report to be provided to the relevant local highway authority; and

(e) surveys as agreed in paragraphs (b) to (d) at the location in paragraph (a).

(3) The scheme approved under sub-paragraph (1) must be implemented by the undertaker unless otherwise agreed in writing with the Secretary of State following consultation with the relevant local highway authority.

Operation phase local traffic monitoring

23.—(1) No part of the authorised development is to commence until an operation phase local traffic monitoring scheme has been submitted to, and following consultation with the relevant local highway authority, approved by the Secretary of State for the following locations—

(a) Great North Road, between A428 and Nelson Road;

(b) Cambridge Road, between Station Road and A428;

(c) Park Street East, Dry Drayton;

(d) Brook Lane, Coton; and

(e) St Neots Road, Sandy.

(2) The operation phase local traffic monitoring scheme must include—

(a) a survey to assess baseline traffic levels at the locations listed in sub-paragraph (1)(a) to (e);

(b) an operation traffic survey at the locations listed in sub-paragraph (1)(a) to (e) within the first year and fifth year following the date on which the authorised development is fully completed and open for traffic to assess the changes in traffic from the baseline;

(c) the methodology to be used to collect the required data;

(d) the periods over which operation traffic is to be monitored; and

(e) proposals for the submission of the survey data collected and an interpretative report to be provided to the relevant local highway authority.

(3) The scheme approved under sub-paragraph (1) must be implemented by the undertaker unless otherwise agreed in writing with the Secretary of State following consultation with the relevant local highway authority.

Biodiversity net gain assessment and offsetting scheme

24.—(1) No part of the authorised development is to commence until an updated biodiversity net gain assessment has been submitted to, and, following consultation with Natural England and the relevant local planning authorities, approved by the Secretary of State.

(2) The biodiversity net gain assessment must describe—

(a) the scope of the assessment, which must include priority habitats such as lowland mixed deciduous woodland, wood-pasture and parkland, and hedgerows;

(b) the methodology used to collect the required data based on a metric that has been agreed with Natural England and the relevant local planning authorities (such agreement not to be unreasonably withheld or delayed);

(c) the timing of the assessment; and

(d) the assessment findings and conclusions.

(3) If the assessment findings and conclusions demonstrate that a loss of priority habitat will be incurred, no part of the authorised development is to commence until a biodiversity offsetting scheme has been submitted to, and, following consultation with Natural England and the relevant local planning authorities, approved by the Secretary of State.

(4) A biodiversity offsetting scheme must include—

(a) details of how any priority habitat losses incurred as a result of the authorised development will be offset and the target condition for each habitat; and

(b) a programme for the implementation, monitoring and management of the biodiversity offset proposals.

(5) The biodiversity offsetting scheme must provide for its implementation before any part of the authorised development is open to traffic.

Approvals and amendments to approved details

25.  With respect to any requirement which requires the authorised development to be carried out in accordance with the details approved under this Schedule, the approved details are taken to include any amendments that may subsequently be approved or agreed in writing by the Secretary of State.

PART 2 PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under requirements

26.—(1) Where an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement (including agreement or approval in respect of part of a requirement) included in this Order, the Secretary of State must give notice to the undertaker of the decision on the application within a period of 8 weeks beginning with—

(a) the day immediately following that on which the application is received by the Secretary of State;

(b) the day immediately following that on which further information has been supplied by the undertaker under paragraph 27; or

(c) such longer period as may be agreed between the parties.

(2) Subject to paragraph (3), in the event that the Secretary of State does not determine an application within the period set out in sub-paragraph (1), the Secretary of State is taken to have granted all parts of the application (without any condition or qualification) at the end of that period.

(3) Where—

(a) an application has been made to the Secretary of State for any consent, agreement or approval required by a requirement included in this Order;

(b) the Secretary of State does not determine such application within the period set out in sub-paragraph (1); and

(c) the application is accompanied by a report from a body required to be consulted under the requirement that considers it likely that the subject matter of the application is to give rise to any materially new or materially different environmental effects in comparison with those reported in the environmental statement,

the application is taken to have been refused by the Secretary of State at the end of that period.

Further information

27.—(1) In relation to any part of an application made under this Schedule, the Secretary of State has the right to request such further information from the undertaker as is necessary to enable the Secretary of State to consider the application.

(2) In the event that the Secretary of State considers such further information to be necessary, the Secretary of State must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required and (if applicable) to which part of the application it relates. In the event that the Secretary of State does not give such notification within this 21 business day period the Secretary of State is deemed to have sufficient information to consider the application and is not subsequently entitled to request further information without the prior agreement of the undertaker.

(3) Where further information is requested under this paragraph in relation to part only of an application, that part is treated as separate from the remainder of the application for the purposes of calculating the time periods referred to in paragraph 26 and in this paragraph.

(4) In this paragraph, “ business day” means a day other than Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971( 107).

Register of requirements

28.—(1) The undertaker must, as soon as practicable following the making of this Order, establish and maintain in an electronic form suitable for inspection by members of the public a register of those requirements contained in Part 1 of this Schedule that provide for further approvals to be given by the Secretary of State.

(2) The register must set out in relation to each such requirement the status of the requirement, in terms of whether any approval to be given by the Secretary of State has been applied for or given, providing an electronic link to any document containing any approved details.

(3) The register must be maintained by the undertaker for a period of 3 years following completion of the authorised development.

Anticipatory steps towards compliance with any requirement

29.  If before the coming into force of this Order the undertaker or any other person has taken any steps that were intended to be steps towards compliance with any provision of Part 1 of this Schedule, those steps may be taken into account for the purpose of determining compliance with that provision if they would have been valid steps for that purpose had they been taken after this Order came into force.

Articles 13 and 19

SCHEDULE 3 CLASSIFICATION OF ROADS, ETC.

PART 1 TRUNK ROADS

PART 2 CLASSIFIED ROADS

PART 3 UNCLASSIFIED ROADS

PART 4 SPEED LIMITS

Note 1:the naming conventions used in this Schedule to describe roads, junctions and structures relate to the naming conventions used in the labels on the permanent speed limit plans.

Note 2:References to the national speed limit in column (3) of the table in this Part of this Schedule are references to the maximum speed limits specified under the 1984 Act and to provision made, or deemed to have been made, under the 1984 Act.

PART 5 TRAFFIC REGULATION MEASURES (CLEARWAYS AND PROHIBITIONS)

In this Part of this Schedule, “ authorised vehicle” has the same meaning as that given in article 14(16).

PART 6 REVOCATIONS & VARIATIONS OF EXISTING TRAFFIC REGULATION ORDERS

PART 7 FOOTPATHS, CYCLE TRACKS, FOOTWAYS, BRIDLEPATHS AND BRIDLEWAYS

PART 8 ROADS TO BE DE-TRUNKED

Articles 17 and 28

SCHEDULE 4 PERMANENT STOPPING UP OF HIGHWAYS AND PRIVATE MEANS OF ACCESS AND PROVISION OF NEW HIGHWAYS AND PRIVATE MEANS OF ACCESS

In relating this Schedule to the streets, rights of way and access plans, the provisions described in this Schedule are shown on the streets, rights of way and access plans in the following manner—

(a) Existing highways which are to be stopped up, as described in column (2) of Parts 1 and 2 of this Schedule, are shown by thick black diagonal hatching (as shown in the key on the streets, rights of way and access plans) over the extent of the area to be stopped up, which is described in column (3) of Parts 1 and 2 of this Schedule and are given a reference label (an upper case letter and a number in a circle).

(b) New highways which are to be substituted for a highway to be stopped up (or which are otherwise to be provided), as are specified in column (4) of Part 2 of this Schedule, are shown by red cross-hatching (for trunk roads), blue cross-hatching (for other classified roads and highways) and solid blue shading (for footpaths, footways, cycle tracks, bridlepaths and bridleways) (as shown in the key on the streets, rights of way and access plans). New trunk roads, classified roads and unclassified roads) are given a reference label (two capital letters in a circle) and new footways, footpaths, cycle tracks or bridleways are given a reference label (two numbers in a circle) (as shown in the key on the streets, rights of way and access plans) with the specific type of way identified by the word “footpath”, “bridleway”, “bridlepath”, “footway” or “cycle track” beneath its reference letter shown in column (4) of Part 2 of this Schedule.

(c) Private means of access to be stopped up, as described in column (2) of Parts 3 and 4 of this Schedule, are shown by solid black shading (as shown in the key on the streets, rights of way and access plans) over the extent of stopping up described in column (3) of Parts 3 and 4 of this Schedule, and are given a reference label (a number and a lower case letter in a circle).

(d) New private means of access to be substituted for a private means of access to be stopped up (or which are otherwise to be provided), as are specified in column (4) of Part 4 of this Schedule, are shown by yellow crosshatching (as shown in the key on the streets, rights of way and access plans) and are given a reference label (a number in a circle).

PART 1 HIGHWAYS TO BE STOPPED UP FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

PART 2 HIGHWAYS TO BE STOPPED UP FOR WHICH A SUBSTITUTE IS TO BE PROVIDED AND NEW HIGHWAYS WHICH ARE OTHERWISE TO BE PROVIDED

PART 3 PRIVATE MEANS OF ACCESS TO BE STOPPED UP FOR WHICH A SUBSTITUTE IS TO BE PROVIDED AND NEW PRIVATE MEANS OF ACCESS WHICH ARE OTHERWISE TO BE PROVIDED

PART 4 PRIVATE MEANS OF ACCESS TO BE STOPPED UP FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

Article 27

SCHEDULE 5 LAND IN WHICH ONLY NEW RIGHTS AND RESTRICTIVE COVENANTS ETC. MAY BE ACQUIRED

Article 27

SCHEDULE 6 MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

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 imposition of a restrictive covenant as they apply in respect of compensation on the compulsory purchase of land and interests in land.

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

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

“(5A)  If—

(a) the acquiring authority enters on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 6 to the A428 Black Cat to Caxton Gibbet Development Consent Order 2022 (“ the A428 Black Cat to Caxton Gibbet Order ”));

(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 6 to the A428 Black Cat to Caxton Gibbet Order) to acquire an interest in the land; and

(c) the acquiring authority enter on and take possession of that land,

the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right. ”.

3.—(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973( 108) 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(3)—

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

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

Application of Part 1 of the 1965 Act

4.  Part 1 of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act (and modified by article 33 (modification of Part 1 of the 1965 Act)) to the acquisition of land under article 24 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant under article27(1)(compulsory acquisition of rights and imposition of restrictive covenants)—

(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, in the appropriate contexts, 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 restrictive covenant imposed or to be imposed; or

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

(3) For Section 7 (measure of compensation in case of severance) of the 1965 Act 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 restrictive 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 so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

(5) Section 11( 109) (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restrictive covenant, as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition under article 24), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A( 110) (powers of entry: further notices of entry). 11B( 111) (counter-notice requiring possession to be taken on specified date), 12( 112) (penalty for unauthorised entry) and 13( 113) (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.

(6) Section 20( 114) (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 the enforcement of the restrictive covenant in question.

(7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 33(4) is also modified so 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, subject to compliance with that section as respects compensation.

(8) For Schedule 2A of the 1965 Act substitute—

“SCHEDULE 2A COUNTER-NOTICE REQUIRING PURCHASE OF LAND NOT IN NOTICE TO TREAT

Introduction

1.— (1)  This Schedule applies where an undertaker serves a notice to treat in respect of a right over, or a restrictive covenant affecting, the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 34 (application of the 1981 Act) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022 in respect of the land to which the notice to treat relates.

(2)  But see article 35(3) (acquisition of subsoil or airspace only) of the A428 Black Cat to Caxton Gibbet Development Consent Order 2022 which excludes the acquisition of subsoil or airspace only from this Schedule.

2.   In this Schedule, “ house ” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land

3.   A person who is able to sell the house, building or factory (“ the owner ”) may serve a counter-notice requiring the acquiring 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.

Response to counter-notice

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 acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).

7.   If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.

8.   If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.

9.   If the acquiring 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 are included the owner’s interest in the house, building or factory.

Determination by the Upper Tribunal

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 the 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 acquiring authority ought to be required to take.

13.   If the Upper Tribunal determines that the acquiring 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 acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes it determination withdraw the notice to treat in relation to that land.

(2)  If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawing of the notice.

15.   Any dispute as to the compensation is to be determined by the Upper Tribunal. ”.

Article 37

SCHEDULE 7 LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Articles 42 and 43

SCHEDULE 8 HEDGEROWS AND TREES

PART 1 REMOVAL OF HEDGEROWS

PART 2 TREES SUBJECT TO TREE PRESERVATION ORDERS

Articles 39 and 47

SCHEDULE 9 PROTECTIVE PROVISIONS

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

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.

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—

“ 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” 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 the works to be executed; and

“ utility undertaker” means—

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 18 (permanent stopping up and restriction of use 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 stopping up or diversion of any highway under the powers conferred by article 16 (temporary alteration, diversion, prohibition 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 22 (protective work to 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 (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 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 50 (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 50 (arbitration), 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. For the avoidance of doubt, any such “deemed consent” does not extend to the actual undertaking of the removal works, which shall remain the sole responsibility of the utility undertaker or its contractors.

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 50 (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), 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).

(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 50 (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 or 7(2), 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 utility 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.

Cooperation

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) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9, 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

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

15.  In this Part of this Schedule—

“ the 2003 Act” means the Communications Act 2003( 120);

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

“ the electronic communications code” has the same meaning as in Chapter 1 (electronic communications, networks and services) of Part 2 of the 2003 Act( 121);

“ electronic communications code network” means—

“ 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) of that code; and

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

16.  The exercise of the powers conferred by article 39 (statutory undertakers) is subject to Part 10 (undertakers 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 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 50 (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 THE ENVIRONMENT AGENCY AND DRAINAGE AUTHORITIES

Application

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

Interpretation

19.  In this Part of this Schedule—

“ the agency” means the Environment Agency;

“ access route” means an access route used by the drainage authority prior to the commencement of construction of a specified work for accessing a drainage work;

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

“ drainage authority” means—

“ drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence and any ancillary works constructed as a consequence of works carried out for drainage purposes;

“ emergency” means an occurrence which presents a risk of—

“ fishery” means any waters containing fish and fish in, or migrating to or from, such waters and the spawn, spawning ground, habitat or food of such fish;

“ main river” means all watercourses shown as such on the statutory main river maps held by the Environment Agency and the Department for Environment, Food and Rural Affairs including any structure or appliance for controlling or regulating the flow of water in or out of the channel;

“ maintenance” has the same meaning as in article 2(1) (interpretation);

“ ordinary watercourse” has the meaning given in the Land Drainage Act 1991( 123);

“ plans” includes all designs, sections, drawings, risk assessments, soil reports, drainage reports, specifications calculations and method statements and other documents that are reasonably necessary in the opinion of the undertaker to properly and sufficiently to describe the works to be executed;

“ specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 8 metres of a drainage work or is otherwise likely to—

“ watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, basins, sewers and passages through which water flows except a public sewer.

Construction of specified works

20.—(1) Before beginning to construct any 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 28 days of the receipt of the plans reasonably require.

(2) Any such 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 paragraph29.

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

(a) must not be unreasonably withheld or delayed;

(b) in relation to specified works to a main river is deemed to have been refused if it is neither given nor refused within 2 months of the submission of the plans, ignoring any time period commencing when the agency make a request for further particulars until those particulars have been provided and, in the case of a refusal, accompanied by a statement of the grounds of refusal;

(c) in relation to specified works to an ordinary watercourse is deemed to have been approved if it is neither given nor refused within 2 months of the submission of the plans or receipt of further particulars if such particulars have been requested by the drainage authority for approval and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and

(d) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, fishery or water resources or for the prevention of flooding or pollution or in the discharge of its environmental duties including those under the Environment Act 1995( 124), the Natural Environment and Rural Communities Act 2006( 125) and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017( 126).

(4) The drainage authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b) and(3)(c).

21.  Without limitation on the scope of paragraph20, but subject always to the provisions of that paragraph as to reasonableness, 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, before or during the construction of the specified works (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; or

(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

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;

(b) in accordance with the plans approved or deemed to have been approved or settled under this Schedule; and

(c) 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.

(2) The undertaker must give to the drainage authority not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is completed.

(3) If the drainage authority reasonably requires, the undertaker must construct all or part of the protective works so that they are in place prior to the construction of any 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 own expense to comply with the requirements of this Part of this Schedule or (if the undertaker so elects and the agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, 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 upon the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any expenditure reasonably incurred by the drainage authority 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 the case of an emergency exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined in accordance with paragraph29.

23.—(1) Subject to sub-paragraph (6), the undertaker must from the commencement of the construction of a specified work, maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the undertaker for the purposes 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 such 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 person liable for maintenance to repair and restore the work, or any part of such work, or (if the person liable for maintenance so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the 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 (5), 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 person liable for maintenance, that person 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 necessary for such compliance and any expenditure reasonably incurred by the drainage authority in so doing shall be recoverable from that person.

(4) If there is any failure by the undertaker to obtain consent or comply with conditions imposed by the drainage authority in accordance with these protective provisions the drainage authority may serve written notice requiring the undertaker to cease all or part of the specified works and the undertaker must cease the specified works or part of them until it has obtained the consent or complied with the condition unless the cessation of the specified works or part of them would cause greater damage than compliance with the written notice.

(5) 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 the case of an emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined in accordance with paragraph29.

(6) This paragraph does not apply to—

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

24.  Subject to paragraph27, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by the undertaker 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 any expenditure reasonably incurred by the drainage authority in doing so from the undertaker.

25.  If by reason of construction of a specified work the drainage authority’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, the undertaker must provide such alternative means of access that will allow the drainage authority to access the flood defence or equipment no less effectively than was possible before the obstruction within 24 hours of the undertaker becoming aware of such obstruction.

Works on the adopted highway

26.  Except in an emergency nothing in paragraphs22(5), 23(3) and24authorises the drainage authority to execute works on or affecting a highway maintainable at the public expense without the prior consent in writing of the undertaker or the relevant highway authority, whichever is the highways authority for the adopted highway in question, such consent is not to be unreasonably withheld or delayed.

Expenses

27.  The undertaker must pay to the drainage authority all costs, charges and expenses which the drainage authority may reasonably incur or which it may sustain in—

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

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

(c) the carrying out of any surveys or tests by the drainage authority which are reasonably required in connection with the construction of the specified works.

28.—(1) Without prejudice to the other provisions of this Part of this Schedule, the undertaker is responsible for and must make reasonable compensation to the drainage authority for all costs and losses not otherwise provided for in this Part of this Schedule which may be reasonably incurred or suffered by the drainage authority by reason of—

(a) the construction of any specified works comprised within the authorised works; or

(b) any act or omission of the Applicant, its employees, contractors or agents or others whilst engaged upon the construction of the authorised works.

(2) For the avoidance of doubt, in sub-paragraph(1), “ costs” includes—

(a) expenses and charges;

(b) staff costs and overheads;

(c) legal costs;

(d) liabilities, claims and demands;

and “ losses” includes physical damage.

(3) For the avoidance of doubt, in sub-paragraph (2), liabilities includes—

(a) contractual liabilities;

(b) tortious liabilities;

(c) liabilities to pay statutory compensation for breach of statutory duty;

(d) liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).

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

(5) The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved by the drainage authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the undertaker from any liability under the provisions of this Part of this Schedule.

(6) The drainage authority must not compromise or settle any such claim or make any admission which might be prejudicial to the claim without the agreement of the undertaker which agreement must not be unreasonably withheld or delayed.

(7) The drainage authority must, at all times take reasonable steps to prevent and mitigate any such claims, demands, proceedings, costs, damages, expenses or loss.

Arbitration

29.  Any dispute arising between the undertaker and the drainage authority under this Part of this Schedule, may if the parties agree, be determined by arbitration under article 50 (arbitration) but may otherwise be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly on a reference to them by the undertaker or the drainage authority, after notice in writing by one to the other.

PART 4 FOR THE PROTECTION OF NATIONAL GRID AS ELECTRICITY AND GAS UNDERTAKER

Application

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

(2) Subject to sub-paragraph (3) or to the extent otherwise agreed in writing between the undertaker and National Grid, where the benefit of this Order is transferred or granted to another person under article 11 (consent to transfer benefit of Order)—

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

(b) written notice of the transfer or grant must be given to National Grid 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 Grid (but see paragraph41(3)(b)).

Interpretation

31.  In this Part of this Schedule—

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

“ apparatus” means any electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by National Grid or any gas mains, pipes, pressure governors, ventilators, cathodic protections, cables or other apparatus belonging to or maintained by National Grid for the purposes of gas supply together with any replacement apparatus and such other apparatus constructed pursuant to the Order that becomes operational apparatus of National Grid for the purposes of transmission, distribution or supply and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“ authorised works” has the same meaning as is given to the term “authorised development” in article 2(1) 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 paragraph38,39and 38 of this Part of this Schedule includes 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, 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 Grid (such approval not to be unreasonably withheld or delayed) setting out the necessary measures (if any) for a ground subsidence event;

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

“ ground subsidence event” means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

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

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

“ National Grid” means National Grid Electricity Transmission Plc (company number 02366977) whose registered office is at 1-3 Strand, London, WC2N 5EH, or any successor as a licence holder within the meaning of Part 1 of the Electricity Act 1989 and National Grid Gas Plc (company number 02006000) whose registered office is at 1-3 Strand, London, WC2N 5EH or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986 as the context requires;

“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;

“ specified works” means any of the authorised works or activities undertaken in association with the authorised works which—

32.  Except for paragraphs33(apparatus of National Grid in stopped up streets),38(retained apparatus: protection of electricity undertaker) and39(retained apparatus: protection of gas undertaker),40(expenses) and41(indemnity) of this Schedule which will apply in respect of the exercise of all or any powers under the 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 Grid are regulated by the provisions of Part 3 of the 1991 Act.

Apparatus of National Grid in stopped up streets

33.—(1) Where any street is stopped up under article 17 (permanent stopping up and restriction of use of streets and private means of access), if National Grid has any apparatus in the street or accessed via that street National Grid has the same rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to National Grid, or procure the granting to National Grid of, legal easements reasonably satisfactory to National Grid in respect of such apparatus and access to it prior to the stopping up of any such street but nothing in this paragraph affects any right of the undertaker or National Grid to require the removal of that apparatus under paragraph36or the power of the undertaker, subject to compliance with this sub-paragraph, to carry out works under paragraph38.

(2) Notwithstanding the temporary alteration, diversion or prohibition or restriction of any highway under the powers of article 16 (temporary alteration, diversion, prohibition and restriction of the use of streets), National Grid 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 highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up, alteration, diversion or restriction was in that street.

Protective works to buildings

34.  The undertaker must exercise the powers conferred by article 21 (protective work to buildings) so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Grid (such consent not to be unreasonably withheld).

Acquisition of land

35.—(1) Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any interest in land or apparatus or override any easement or other interest of National Grid 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 Grid 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 Grid or affect the provisions of any enactment or agreement regulating the relations between National Grid and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as National Grid reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between National Grid and the undertaker acting reasonably and which must be no less favourable on the whole to National Grid unless otherwise agreed by National Grid, and it will be the responsibility of the undertaker to procure and 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) The undertaker and National Grid agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus (including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus) and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by National Grid or other enactments relied upon by National Grid as of right or other use in relation to the apparatus, then the provisions in this Schedule prevail.

(4) Any agreement or consent granted by National Grid under paragraph 9 or 10 or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

Removal of apparatus

36.—(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 Grid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in accordance with sub-paragraph (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 Grid advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its reasonable satisfaction (taking into account paragraph37(1)) the necessary facilities and rights—

(a) for the construction of alternative apparatus in other land of, or 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 Grid must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for National Grid to use its compulsory purchase powers to this end unless it elects to so do.

(4) Any alternative apparatus to be constructed in land of or land secured by 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 Grid and the undertaker.

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

Facilities and rights for alternative apparatus

37.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to or secures for National Grid 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 Grid and must be no less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed unless otherwise agreed by National Grid.

(2) If the facilities and rights to be afforded by the undertaker under paragraph 8(1) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the matter may be referred to arbitration in accordance with paragraph45(Arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of electricity undertaker

38.—(1) Not less than 56 days before the commencement of any specified works the undertaker must submit to National Grid a plan of the works to be executed and seek from National Grid details of the underground extent of their electricity tower foundations.

(2) In relation to works which will or may be situated on, over, under or within (i) 15 metres measured in any direction of any apparatus, or (ii) involve embankment works within 15 metres of any apparatus, the plan to be submitted to National Grid 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;

(d) the position of all apparatus;

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

(f) any intended maintenance regimes; and

(g) an assessment of risks of rise of earth issues.

(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, in addition to the matters set out in sub-paragraph (2), include a method statement describing—

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

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

(c) details of load bearing capacities of trenches;

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

(e) a written management plan for high voltage hazard during construction and ongoing maintenance of any cable route;

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

(g) assessment of earth rise potential if reasonably required by National Grid’s engineers; and

(h) evidence that trench bearing capacity is to be designed to support overhead line construction traffic of up to 26 tonnes in weight.

(4) The undertaker must not commence any works to which sub-paragraphs (2) or (3) apply until National Grid has given written approval of the plan so submitted.

(5) Any approval of National Grid required under sub-paragraphs (4)—

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

(b) must not be unreasonably withheld.

(6) In relation to any work to which sub-paragraphs (2) or (3) apply, National Grid 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-paragraphs (2) or (3) 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 Grid and in accordance with such reasonable requirements as may be made in accordance with sub-paragraphs (6) or (8) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(8) Where under sub-paragraph (6) National Grid 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 Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid 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).

(9) If National Grid in accordance with sub-paragraphs (6) or (8) 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, paragraphs30to32and35to37apply as if the removal of the apparatus had been required by the undertaker under paragraph36(2).

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

(11) The undertaker will not be required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (6), (7) and (8) insofar as is reasonably practicable in the circumstances.

(12) In sub-paragraph (11) “ emergency works” means works whose execution at the time when they are executed is required in order to put an end to or to prevent the occurrence of circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Retained apparatus: protection of gas undertaker

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

(2) The plan to be submitted to National Grid 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 not commence any specified works until National Grid has given written approval of the plan so submitted.

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

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

(b) must not be unreasonably withheld or delayed.

(5) National Grid 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.

(6) Specified works must only be executed in accordance with—

(a) the plan, submitted under sub-paragraph (1), as approved or as amended from time to time by agreement between the undertaker and National Grid; and

(b) such reasonable requirements as may be made in accordance with sub-paragraphs (5) or (7) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(7) Where under sub-paragraph (6) National Grid requires any protective works to be carried out by itself or by the undertaker such protective works (whether of a temporary or permanent nature) must be carried out to National Grid’s satisfaction prior to the commencement of any specified works for which protective works are required and National Grid 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).

(8) If National Grid in accordance with sub-paragraphs (5) or (7) 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, paragraphs30to32and35to37apply as if the removal of the apparatus had been required by the undertaker under paragraph36(2).

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

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised works—

(a) the undertaker must implement an appropriate ground mitigation scheme; and

(b) National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 11.

(11) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must comply with sub-paragraphs (5), (6) and (7) insofar as is reasonably practicable in the circumstances.

(12) In sub-paragraph (11), “ emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Expenses

40.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid within 30 days of receipt of an itemised invoice or claim from National Grid all charges, costs and expenses reasonably anticipated within the following three months or reasonably and properly incurred by National Grid in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised works including without limitation—

(a) any costs reasonably incurred by or compensation properly paid by National Grid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs incurred by National Grid as a consequence of National Grid—

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph36(3); or

(ii) exercising any compulsory purchase powers in the Order transferred to or benefitting National Grid;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus, where no written diversion agreement is otherwise in place;

(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d) the approval of plans;

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

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

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

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with paragraph45(arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to National Grid by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

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

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

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

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

Indemnity

41.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these 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 the authorised works) or property of National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—

(a) bear and pay on demand accompanied by an invoice or claim from National Grid the cost reasonably and properly incurred by National Grid in making good such damage or restoring the supply; and

(b) indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party as aforesaid other than arising from any default of National Grid.

(2) The fact that any act or thing may have been done by National Grid on behalf of the undertaker or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid or under its supervision will not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and workman 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 in respect of—

(a) any damage or interruption to the extent that it is attributable to the neglect or default of National Grid, its officers, servants, contractors or agents;

(b) any part of the authorised works carried out by National Grid in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 10 (consent to transfer benefit of Order).

(4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.

(5) National Grid must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.

(6) National Grid must use its reasonable endeavours to mitigate and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within National Grid’s reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of National Grid’s control and if reasonably requested to do so by the undertaker National Grid must provide an explanation of how the claim has been minimised, where relevant.

Enactments and agreements

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

Co-operation

43.—(1) Where in consequence of the proposed construction of any part of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph36(2)or National Grid makes requirements for the protection or alteration of apparatus under paragraph38or39, the undertaker must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and taking into account the need to ensure the safe and efficient operation of National Grid’s undertaking and National Grid must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever the undertaker’s or National Grid’s consent, agreement or approval is required in relation to plans, documents or other information submitted under this schedule, or agreement is required to be reached between the parties under this Part of this Schedule, it must not be unreasonably withheld or delayed.

Access

44.  If in consequence of the agreement reached in accordance with paragraph35(1)or the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative means of access to such apparatus as will enable National Grid to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

45.  Save for differences or disputes arising under paragraph36(2),36(4)and37(1), any difference or dispute arising between the undertaker and National Grid under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and National Grid, be determined by arbitration in accordance with article500 (arbitration).

Notices

46.  Notwithstanding article 49 (service of notices), any plans submitted to National Grid by the undertaker pursuant to paragraph 9 or 10 must be sent to National Grid Plant Protection at [email protected] or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 5 PROTECTION FOR NETWORK RAIL INFRASTRUCTURE LIMITED

47.  The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph61, any other person on whom rights or obligations are conferred by that paragraph.

48.  In this Part of the Schedule—

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

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

“ network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of his powers under section 8( 127) (licences) of the Railways Act 1993;

“ Network Rail” means Network Rail Infrastructure Limited (company number 02904587 whose registered office is at 1 Eversholtt 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 (meaning of “ subsidiary” etc.) of the Companies Act 2006( 128) 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 paragraph51(4);

“ 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 Network Rail Infrastructure Limited and—

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

49.—(1) Where under this Part of this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail 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 pursuant to this Order.

50.—(1) The undertaker must not exercise the powers conferred by articles 24 (compulsory acquisition of land) or 27 (compulsory acquisition of rights and imposition of restrictive covenants) or the powers conferred by section 11(3) (powers of entry) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.

(2) The undertaker must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the prior written consent of Network Rail.

(3) The undertaker must not exercise the powers conferred by sections 271 (extinguishment of rights of statutory undertakers: preliminary notices) or 272( 129) (extinguishment of rights of electronic communications code network operators: preliminary notices) of the 1990 Act, or article 39 (statutory undertakers), in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the prior written consent of Network Rail.

(4) The undertaker must not under the powers of this Order acquire or use or acquire new rights over any railway property except with the consent of Network Rail.

(5) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions.

51.—(1) The undertaker must before commencing construction of any specified work supply to Network Rail 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 in accordance with article 50 (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 Network Rail the engineer has not intimated his disapproval of those plans and the grounds of disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate his approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated his approval or disapproval, the engineer shall be deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay 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 his 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 Network Rail 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 Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without unnecessary delay 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.

52.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 5(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 paragraph51;

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

(c) in such manner as to cause as little damage as is possible to railway property; and

(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 Network Rail or the traffic thereon and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any 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 Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.

53.  The undertaker must—

(a) at all times afford reasonable facilities to the engineer for access to a specified 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 the method of constructing it.

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

55.—(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 during a period of 24 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 Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker reasonable written notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to Network Rail 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 reasonably incurred by Network Rail 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, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work or the protective work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work or the protective work is to be constructed, Network Rail must assume construction of that part of the specified work or the protective work and the undertaker must, regardless of any such approval of a specified work under paragraph51(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work or protective work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph56(a)provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(4) 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 must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

56.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph51(3)or in constructing any protective works under the provisions of paragraph51(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 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, signalmen, watchmen and other persons whom it shall be 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 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.

57.—(1) In this paragraph—

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

“ Network Rail’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 Network Rail 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 Network Rail’s apparatus carried out after approval of plans under paragraph51(1)for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(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 Network Rail (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 Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph51(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

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

(c) Network Rail must allow the undertaker reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail and in relation to such modifications paragraph51(1)has effect subject to this sub-paragraph.

(6) If at any time prior to the commencement of regular revenue-earning operations on the authorised railway comprised in the authorised development and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by Network Rail 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) forthwith 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 Network Rail’s apparatus.

(7) In the event of EMI having occurred—

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

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

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

(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—

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

(b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 6.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph61(1)applies to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph56(a)any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

58.  If at any time after the completion of a specified work or a protective work, not being a work vested in Network Rail, Network Rail gives written notice to the undertaker informing it that the state of maintenance of any part of the specified work or a protective work appears to be such as adversely affects the operation of railway property, the undertaker must (to the extent it is reasonable to do so), on receipt of such written notice, take such steps as may be necessary to put that specified work or a protective work in such state of maintenance as not adversely to affect railway property.

59.  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 Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’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.

60.  Any additional expenses which Network Rail may 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 not less than 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 Network Rail.

61.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by Network Rail—

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

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

and the undertaker must indemnify and keep indemnified Network Rail 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 Network Rail 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 shall not (if it was done without negligence on the part of Network Rail 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) Network Rail must give the undertaker reasonable written notice (and in any event not less than 7 days) of any such claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior written consent of the undertaker.

(3) The sums payable by the undertaker under sub-paragraph (1) shall include a sum equivalent to the relevant costs to the extent such costs result from the actions or omissions of the undertaker.

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

(5) The obligation under sub-paragraph (3) to pay Network Rail 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 pursuant to sub-paragraph (4).

(6) In this paragraph—

“ the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’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 subparagraph (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.

62.  Network Rail 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 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 paragraph61) 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 pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

63.  In the assessment of any sums payable to Network Rail 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 Network Rail 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.

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

(a) any railway property shown on the works plans or lands 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 Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

65.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I of the Railways Act 1993.

66.  The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 9 (benefit of Order) of this Order and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—

(a) the nature of the application to be made;

(b) the extent of the geographical area to which the application relates; and

(c) the name and address of the person acting for the Secretary of State to whom the application is to be made.

67.  The undertaker must no later than 28 days from the date that the plans and documents submitted to and certified by the Secretary of State in accordance with article 49 (certification of documents, etc.) are certified by the Secretary of State, provide a set of those plans and documents to Network Rail in an agreed electronic read only format.

PART 6 FOR THE PROTECTION OF EXOLUM PIPELINE SYSTEM LTD

Application

68.  For the protection of Exolum the following provisions, unless otherwise agreed in writing at any time between the undertaker and Exolum, have effect.

Interpretation

69.  In this Part of this Schedule—

“ alternative apparatus” means alternative apparatus adequate to enable Exolum to fulfil its functions as a pipe-line operator in a manner no less efficient than previously;

“ apparatus” means the pipe-line and storage system owned or maintained by Exolum and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“ Exolum” means Exolum Pipeline System Ltd (company number 09497223 whose registered office is 1st Floor 55 King William Street, London, England, EC4R 9AD) and any successor in title;

“ 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;

“ pipe-line” means the whole or any part of a pipe-line belonging to or maintained by Exolum and includes any ancillary works and apparatus; all protective wrappings, valves, sleeves and slabs, cathodic protection units, together with ancillary cables and markers; and such legal interest and benefit of property rights and covenants as are vested in Exolum in respect of those items;

“ 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;

“ specified work” means any work which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus; and

“ working day” means any day other than a Saturday, Sunday or English bank or public holiday.

Acquisition of apparatus

70.  Irrespective of any provision in this Order or anything shown on the land plans—

(a) the undertaker must not acquire any apparatus or obstruct or render less convenient the access to any apparatus, otherwise than by agreement with Exolum; and

(b) any right of Exolum to maintain, repair, renew, adjust, alter or inspect any apparatus must not be extinguished by the undertaker until any necessary alternative apparatus has been constructed and is in operation to the reasonable satisfaction of Exolum.

Removal of apparatus and rights for alternative apparatus

71.—(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 any apparatus is relocated or diverted, that apparatus must not be removed by the undertaker and any right of Exolum to maintain and use 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 Exolum.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give Exolum not less than 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 Exolum reasonably needs to remove any apparatus) the undertaker must, subject to subparagraph (3), afford to Exolum 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 undertaker must afford to and, if necessary, acquire for the benefit of Exolum the necessary facilities and rights (equivalent to those currently enjoyed by Exolum) for the construction, maintenance and use of the alternative apparatus and access to it.

(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 Exolum and the undertaker or in default of agreement settled by arbitration in accordance with article 50 (arbitration).

(5) Exolum must, after the alternative apparatus to be provided or constructed has been agreed or settled in accordance with article50, and after the grant to Exolum of any such facilities and rights as are referred to in sub-paragraphs (2) and (3), proceed as soon as reasonably practicable using all reasonable endeavours 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 Schedule.

(6) Irrespective of sub-paragraph (5), if the undertaker gives notice in writing to Exolum that it desires itself to execute any work, or part of any work in connection with the construction, removal or decommissioning of apparatus in the land of the undertaker or the construction of alternative apparatus, that work, instead of being executed by Exolum, must be executed by the undertaker without unnecessary delay under the superintendence, if required, and to the reasonable satisfaction of Exolum.

(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 3000 millimetres of the apparatus without Exolum’s consent.

Facilities and rights for alternative apparatus

72.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to Exolum 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 Exolum or in default of agreement settled by arbitration in accordance with article 50 (arbitration).

(2) In settling those terms and conditions in respect of alternative apparatus the arbitrator must—

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

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

(3) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to Exolum 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 Exolum as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection

73.—(1) Unless a shorter period is otherwise agreed in writing between the undertaker and Exolum, not less than 28 days before commencing any specified work in relation to apparatus the removal of which has not been required by the undertaker under sub-paragraph72(2), the undertaker must submit to Exolum a plan of the works to be executed.

(2) The specified work must be executed only in accordance with the plan submitted under subparagraph (1) and approved by Exolum in accordance with sub-paragraph (4) by Exolum for the alteration or otherwise for the protection of the apparatus, or for securing access to it; and Exolum is entitled to watch and inspect the execution of the specified work.

(3) Any requirements made by Exolum under sub-paragraph (2) must be made within a period of 14 days (unless a shorter period is otherwise agreed in writing between the undertaker and Exolum) beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

(4) If Exolum in accordance with sub-paragraph (2) 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, this Part of this Schedule applies as if the removal of the apparatus had been required by the undertaker under sub-paragraph 89(2).

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time but (unless otherwise agreed in writing between the undertaker and Exolum) in no case less than 28 days before commencing any specified work, 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 it must give to Exolum notice of the works it intends to carry out to remedy the emergency together with a plan as soon as is reasonably practicable and must comply with subparagraph (2) in so far as is reasonably practicable in the circumstances.

(7) In relation to any specified work, the plan to be submitted to Exolum under sub-paragraph (1) must include a material statement describing—

(a) the exact position of the work;

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

(c) the manner of its construction or renewal;

(d) the position of any apparatus; and

(e) by way of detailed drawings, every alteration proposed to be made to the apparatus.

Cathodic protection testing

74.  Where in the reasonable opinion of the undertaker—

(a) the authorised development might interfere with the existing cathodic protection forming part of a pipe-line; or

(b) a pipe-line might interfere with the proposed or existing cathodic protection forming part of the authorised development,

Exolum and the undertaker must co-operate in undertaking the tests which the undertaker considers reasonably necessary for ascertaining the nature and extent of such interference and measures for providing or preserving cathodic protection.

Expenses

75.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to Exolum the reasonable costs and expenses incurred by Exolum in, or in connection with—

(a) the inspection, removal, alteration or protection of any apparatus; or

(b) the construction of any new apparatus; or

(c) the watching and inspecting the execution of any specified work; or

(d) imposing reasonable requirements for the protection or alteration of apparatus,

which may reasonably be required in consequence of the execution of any such works as are required under this Schedule.

(2) The scrap value of any apparatus removed under the provisions of this Part of Schedule is to be deducted from any sum payable under sub-paragraph (1), 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 (except where this has been solely due to using the nearest currently available type); 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 50 (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 Exolum by virtue of sub-paragraph (1) is 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 must not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

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

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

Damage to property and other losses

76.—(1) Subject to the following provisions of this paragraph, the undertaker must—

(a) pay Exolum for all loss, damage, liability, costs and expenses reasonably suffered or incurred by Exolum for which Exolum is legally liable as a result of legally sustainable claims brought against Exolum by any third party solely arising out of the carrying out of any relevant works and any protective building works;

(b) pay the cost reasonably incurred by Exolum in making good any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) arising from or caused by the carrying out of any relevant works or protective building work; (2) The fact that any act or thing may have been done by Exolum on behalf of the undertaker or in accordance with a plan approved by Exolum or in accordance with any requirement of Exolum or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1);

(c) pay the cost reasonably incurred by Exolum in stopping, suspending and restoring the supply through its pipeline and make reasonable compensation to Exolum for any other expenses, losses, damages, penalty or costs incurred by Exolum by reason or in consequence of any such damage or interruption provided that the same arises in consequence of the carrying out of any relevant works and any protective building works.

(2) Irrespective of anything to the contrary elsewhere in this Part of this Schedule—

(a) the undertaker and Exolum must at all times take reasonable steps to prevent and mitigate any loss, damage, liability, claim, cost or expense (whether indemnified or not) which either suffers as a result of the other’s negligence or breach of this Part of this Schedule; and

(b) neither the undertaker nor Exolum are liable for any loss, damage, liability, claim, cost or expense suffered or incurred by the other to the extent that the same are incurred as a result of or in connection with the sole, partial or complete breach of this Part of this Schedule or negligence arising out of an act, omission, default or works of the other, its officers, servants, contractors or agents.

(3) Exolum must give to the undertaker reasonable notice of any claim or demand to which this paragraph76applies. The undertaker may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. Exolum must not compromise or settle any such claim or make any admission which might be prejudicial to the claim. Exolum must, at the request of the undertaker, afford all reasonable assistance for the purpose of contesting any such claim or action, and is entitled to be repaid all reasonable expenses incurred in so doing.

(4) In this paragraph—

“ protective building works” means the exercise by the undertaker of the powers conferred by article 22 (protective works to buildings); and

“ relevant works” means such of the authorised development as—

Co-operation and reasonableness

77.—(1) Where in consequence of the proposed construction of any of the authorised development, the undertaker requires the removal of apparatus under this Part of this Schedule or Exolum makes requirements for the protection or alteration of apparatus under this Part of this Schedule, the undertaker must use its 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 Exolum’s undertaking and Exolum must use its best endeavours to co-operate with the undertaker for that purpose.

(2) The undertaker and Exolum must act reasonably in respect of any given term of this Part of this Schedule and, in particular, (without prejudice to generality) where any consent or expression of satisfaction is required by this Part of this Schedule it must not be unreasonably withheld or delayed.

Miscellaneous

78.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Exolum in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made provided that the terms of the relevant enactment or agreement are not inconsistent with the provisions of this Order, including this Part of this Schedule. In the case of any inconsistency, the provisions of this Order, including this Part of this Schedule, prevail.

Emergency Circumstances

79.—(1) The Promoter acknowledges that Exolum provides services to Her Majesty’s Government, using its apparatus, which may affect any works to be carried under this Order.

(2) In the following circumstances, Exolum may on written notice to the Promoter immediately suspend all works that necessitate the stopping or suspending of the supply of product through any apparatus under this Order and Exolum shall not be in breach of its obligations to proceed—

(a) circumstances in which, in the determination of the Secretary of State, there subsists a material threat to national security, or a threat or state of hostility or war or other crisis or national emergency (whether or not involving hostility or war); or

(b) circumstances in which a request has been received, and a decision to act upon such request has been taken, by Her Majesty’s Government for assistance in relation to the occurrence or anticipated occurrent of a major accident, crisis or natural disaster; or

(c) circumstances in which a request has been received from or on behalf of NATO, the EU, the UN, the International Energy Agency (or any successor agency thereof) or the government of any other state for support or assistance pursuant to the United Kingdom’s international obligations and a decision to act upon such request has been taken by Her Majesty’s Government or the Secretary of State; or

(d) any circumstances identified as such by the COBRA committee of Her Majesty’s Government (or any successor committee thereof); or

(e) any situation, including where the United Kingdom is engaged in any planned or unplanned military operations within the United Kingdom or overseas, in connection with which the Secretary of State requires fuel capacity.

(3) The parties agree to act in good faith and in all reasonableness to agree any revisions to any schedule, programme or costs estimate (which shall include costs of demobilising and remobilising any workforce, and any costs to protect Exolum’s apparatus “mid-works”) to account for the suspension.

(4) Exolum shall not be liable for any costs, expenses, losses or liabilities the Promoter incurs as a result of the suspension of any activities under this paragraph or delays caused by it.

PART 7 FOR THE PROTECTION OF ANGLIAN WATER SERVICES LIMITED

Application

80.  For the protection of Anglian Water the following provisions have effect, unless otherwise agreed in writing between the undertaker and Anglian Water.

Interpretation

81.  In this Part of this Schedule—

“ alternative apparatus” means alternative apparatus adequate to enable Anglian Water to fulfil its statutory functions in a manner no less efficient than previously;

“ Anglian Water” means Anglian Water Services Limited (company number 02366656 whose registered address is Lancaster House Lancaster Way, Ermine Business Park, Huntingdon, Cambridgeshire, United Kingdom, PE29 6XU;

“ apparatus” means:

and for the purpose of this definition, where words are defined by section 219 of the Water Industry Act 1991 they shall be taken to have the same meaning;

“ 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;

On street apparatus

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

Apparatus in stopped up streets

83.—(1) Where any street is stopped up under article 18 (permanent stopping up and restriction of use of streets and private means of access), where Anglian Water has apparatus in the street or accessed by virtue of that street, it 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 Anglian Water legal easements reasonably satisfactory to Anglian Water in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of Anglian Water to require the removal of that apparatus under paragraph86or the power of the undertaker to carry out works under paragraph88.

(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 17 (temporary alteration, diversion, prohibition and restriction of the use of streets), Anglian Water 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

84.  The undertaker, in the case of the powers conferred by article 22 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

85.  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

86.—(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 Anglian Water’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of Anglian Water to maintain that apparatus in that land must not (without the prior written consent of Anglian Water) be extinguished, until—

(a) alternative apparatus has been constructed and is in operation to the reasonable satisfaction of Anglian Water in accordance with sub-paragraphs (2) to (8); and

(b) facilities and rights have been secured for that alternative apparatus in accordance with paragraph 87.

(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 Anglian Water 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 an undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to Anglian Water 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 Anglian Water 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 Anglian Water and the undertaker or in default of agreement settled by arbitration in accordance with article 50 (arbitration).

(5) Anglian Water must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 50, and after the grant to Anglian Water 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 Anglian Water gives notice in writing to the undertaker that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker or to the extent that Anglian Water fails to proceed with that work in accordance with sub-paragraph (5) or the undertaker and Anglian Water otherwise agree, that work, instead of being executed by Anglian Water, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of Anglian Water.

(7) Notice under sub-paragraph (6) that Anglian Water desires the undertaker to execute any work, or part of any work, must be given within 14 days of agreement under sub-paragraph (4) or, in default of agreement, within 14 days of the date of settlement by arbitration under sub-paragraph (4).

(8) If Anglian Water 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. For the avoidance of doubt, any such “deemed consent” does not extend to the actual undertaking of the removal works, which shall remain the sole responsibility of Anglian Water or its contractors.

(9) Whenever alternative apparatus is to be or is being substituted for existing apparatus, the undertaker shall, before taking or requiring any further step in such substitution works, use best endeavours to comply with Anglian Water’s reasonable requests for a reasonable period of time to enable Anglian Water to—

(a) make network contingency arrangements; or

(b) bring such matters as it may consider reasonably necessary to the attention of end users of the utility in question.

Facilities and rights for alternative apparatus

87.—(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 Anglian Water or in default of agreement settled by arbitration in accordance with article 50 (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 Anglian Water 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 Anglian Water as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

(3) Such facilities and rights as are set out in this paragraph are deemed to include any statutory permits granted to the undertaker in respect of the apparatus in question, whether under the Environmental Permitting Regulations 2016( 133) or other legislation.

Retained apparatus

88.—(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 (or any means of access to it) the removal of which has not been required by the undertaker under paragraph 86(2), the undertaker must submit to Anglian Water 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 Anglian Water for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and Anglian Water is entitled to watch and inspect the execution of those works.

(3) Any requirements made by Anglian Water 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 Anglian Water 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 80 to 82 and 85 to 87 apply as if the removal of the apparatus had been required by the undertaker under paragraph 86(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 Anglian Water 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 and will keep the impact of those emergency works on Anglian Water’s apparatus, on the operation of its water and sewerage network and on end-users of the services Anglin water provides to a minimum.

(7) For the purposes of sub-paragraph (1), works are deemed to be in land near Anglian Water’s apparatus (where it is a pipe) if those works fall within the following distances measured from the medial line of such apparatus—

(a) 2.25 metres where the diameter of the pipe is less than 150 millimetres;

(b) 3 metres where the diameter of the pipe is between 150 and 450 millimetres

(c) 4.5 metres where the diameter of the pipe is between 451 and 750 millimetres; and

(d) 6 metres where the diameter of the pipe exceeds 750 millimetres.

Expenses and costs

89.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to Anglian Water all expenses reasonably incurred by Anglian Water 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 this Part of the Schedule.

(2) There must be deducted from any sum payable under subparagraph (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 50 (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 Anglian Water 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 Anglian Water 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 Anglian Water 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.

90.—(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 84 or 86(2), 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 Anglian Water, or there is any interruption in any service provided, or in the supply of any goods, by Anglian Water, the undertaker must—

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

(b) make reasonable compensation to Anglian Water 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 Anglian Water on behalf of the undertaker or in accordance with a plan approved by Anglian Water or in accordance with any requirement of Anglian Water or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless Anglian Water 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 Anglian Water, its officers, servants, contractors or agents.

(4) Anglian Water 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 (such consent not to be unreasonably withheld or delayed) 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.

Cooperation

91.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or Anglian Water requires the removal of apparatus under paragraph 86(2) or Anglian Water makes requirements for the protection or alteration of apparatus under paragraph 88, the undertaker must use all reasonable 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 Anglian Water’s undertaking and Anglian Water must use all reasonable endeavours to co-operate with the undertaker for that purpose.

92.  Where the undertaker identifies any apparatus which may belong to or be maintainable by Anglian Water but which does not appear on any statutory map kept for the purpose by Anglian Water, it shall inform Anglian Water of the existence and location of the apparatus as soon as reasonably practicable.

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

94.  Any time period in which an action must be taken in this part of the Schedule may be amended by written agreement between the undertaker and Anglian Water.

PART 8 FOR THE PROTECTION OF CADENT GAS LIMITED

Application

95.  For the protection of Cadent the following provisions will, unless otherwise agreed in writing between the undertaker and Cadent, have effect.

Interpretation

96.  In this Part of the Schedule—

“ alternative apparatus” means appropriate alternative apparatus to the reasonable satisfaction of Cadent to enable Cadent 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 Cadent for the purposes of Cadent’s undertaking together with any replacement apparatus and such other apparatus constructed pursuant to this Order that becomes operational apparatus of Cadent for the purposes of Cadent’s undertaking and includes any structure in which apparatus is or will be lodged or which gives or will give access to apparatus;

“ authorised development” shall have the same meaning as in the Order;

“ Cadent” means Cadent Gas Limited and includes its successors in title or any successor as a gas transporter within the meaning of Part 1 of the Gas Act 1986;

“ Cadent’s undertaking” means the rights, duties and obligations of Cadent Gas Limited as a public gas transporter within the meaning of Section 7 (licensing of public gas transporters)( 134) of the Gas Act 1986 (as amended by the Gas Act 1995);

“ commence” has the same meaning as in article 2(1) of the Order and “ commencement” shall be construed to have the same meaning save that for the purposes of this Part of the Schedule the terms “ commence” and “ commencement” include any below ground 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;

“ 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 Cadent’s approval a ground monitoring 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” for the purposes of this Part of the Schedule shall have effect as if Cadent’s existing apparatus was authorised development and as if the term maintain includes protect and use, improve, landscape, preserve, decommission, refurbish or replace;

“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;

“ rights” includes restrictive covenants and, in relation to decommissioned apparatus, the surrender of rights, release of liabilities and transfer of decommissioned apparatus; and

“ specified works” means any of the authorised development or activities (including maintenance) undertaken in association with the authorised development which—

On Street apparatus

97.—(1) This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and Cadent are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act, except for—

(a) paragraphs 98 (apparatus of Cadent in stopped up streets), 103 (retained apparatus: protection of Cadent, 104 (expenses) and 105 (indemnity); and

(b) where sub-paragraph (2) applies, paragraphs 101 (removal of apparatus) and 102 (facilities and rights for alternative apparatus).

(2) This sub-paragraph applies where any apparatus is diverted from an alignment within the existing adopted public highway but not wholly replaced within the existing adopted public highway, notwithstanding that any diversion may be carried out under the provisions of Part 3 of the 1991 Act.

(3) Paragraph 104 does not apply where the authorised development constitutes major highway works, major bridge works or major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and

(b) the allowable costs are to be borne by the undertaker and Cadent in such proportions as may be prescribed by any such regulations.

Apparatus of Cadent in stopped up streets

98.—(1) Where any street is stopped up under article 18 (permanent stopping up and restriction of use of streets and private means of access), if Cadent has any apparatus in the street or accessed via that street Cadent is entitled to the same rights in respect of such apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to Cadent, or procure the granting to Cadent of legal easements reasonably satisfactory to Cadent in respect of such apparatus and access to it prior to the stopping up of any such street or highway, but nothing in this paragraph shall affect any right of the undertaker or of Cadent to require the removal of that apparatus under paragraph 101 (removal of apparatus).

(2) Notwithstanding the temporary alteration, diversion or restriction of use of any street under the powers of article 17 (temporary alteration, diversion, prohibition and restriction of use of streets), Cadent will be 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 it would have been entitled to do immediately before such temporary alteration, diversion or restriction of use in respect of any apparatus which at the time of the stopping up or diversion was in that street.

Protective works to buildings

99.  The undertaker must exercise the powers conferred by article 21 (protective work to building) so as not to obstruct or render less convenient the access to any apparatus without the written consent of Cadent (such consent not to be unreasonably withheld or delayed).

Acquisition of land

100.—(1) Regardless of any provision in this Order or anything shown on the land plans of contained in the book of reference to the Order, the undertaker may not appropriate or acquire any interest in land or appropriate, acquire, extinguish, interfere with or override any easement or other interest in land of Cadent otherwise than by agreement.

(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out or maintenance of any part of the authorised development (or in such other timeframe as may be agreed between Cadent 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 Cadent or affect the provisions of any enactment or agreement regulating the relations between Cadent and the undertaker in respect of any apparatus laid or erected in land belonging to or secured by the undertaker, the undertaker must as Cadent reasonably requires enter into such deeds of consent upon such terms and conditions as may be agreed between Cadent and the undertaker acting reasonably and which must be no less favourable on the whole to Cadent unless otherwise agreed by Cadent, and it will be the responsibility of the undertaker to procure or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised development or maintenance thereof.

(3) The undertaker and Cadent agree that where there is any inconsistency or duplication between the provisions set out in this Part of this Schedule relating to the relocation or removal of apparatus, including but not limited to the payment of costs and expenses relating to such relocation or removal of apparatus and the provisions of any existing easement, rights, agreements and licences granted, used, enjoyed or exercised by Cadent and other enactments relied upon by Cadent as of right or other use in relation to the apparatus, then the provisions in this Schedule prevail.

(4) Any agreement or consent granted by Cadent under paragraph 103 (retained apparatus: protection of Cadent) or any other paragraph of this Part of this Schedule, is not to be taken to constitute agreement under sub-paragraph (1).

(5) As a condition of an agreement under sub-paragraph (1) that involves de-commissioned apparatus being left in situ the undertaker must accept a surrender of any existing easement or other interest of Cadent in such decommissioned apparatus from the date of such surrender.

(6) Where an undertaker acquires land which is subject to any Cadent right or interest (including, without limitation, easements and agreements relating to rights or other interests) and the provisions of paragraph 101 (removal of apparatus) do not apply, the undertaker must, unless Cadent agrees otherwise—

(a) retain any notice of Cadent’s easement, right or other interest on the title to the relevant land when registering the undertaker’s title to such acquired land; and

(b) (where no such notice of Cadent’s easement, right or other interest exists in relation to such acquired land or any such notice is registered only on the Land Charges Register) include (with its application to register title to the undertaker’s interest in such acquired land at the Land Registry) a notice of Cadent’s easement, right or other interest in relation to such acquired land.

Removal of apparatus

101.—(1) If, in the exercise of the powers conferred by this Order, including pursuant to any agreement reached in accordance with paragraph 100 (acquisition of land), the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be decommissioned or removed under this Part of this Schedule and any right of Cadent to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, is in operation, and the facilities and rights referred to in sub-paragraph (2) have been provided, to the reasonable satisfaction of Cadent and in accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to Cadent advance 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 Cadent reasonably needs to move or remove any of its apparatus) the undertaker must afford to Cadent to its satisfaction (taking into account paragraph 102(1) (facilities and rights for alternative apparatus)) the necessary facilities and rights—

(a) for the construction of alternative apparatus; and

(b) subsequently for the maintenance of that apparatus.

(3) If 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, Cadent must, on receipt of a written notice to that effect from the undertaker in obtaining the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for Cadent to use its compulsory purchase powers to this end unless it (in its absolute discretion) elects to do so.

(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 Cadent and the undertaker.

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

Facilities and rights for alternative apparatus

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

(2) If the facilities and rights to be afforded by the undertaker and agreed with Cadent under sub-paragraph (1) 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 Cadent than the facilities and rights enjoyed by it in respect of the apparatus to be decommissioned or removed, then the terms and conditions to which those facilities and rights are subject in the matter may be referred to arbitration in accordance with paragraph 109 (arbitration) of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to Cadent as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection of Cadent

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

(2) The plan to be submitted to Cadent 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 not commence any specified works until Cadent has given written approval of the plan so submitted (and the ground monitoring scheme if required).

(4) Any approval of Cadent given under sub-paragraph (3)—

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

(b) must not be unreasonably withheld or delayed and Cadent must meaningfully engage with the undertaker within 28 days of the date of submission of the plan under sub-paragraph (1).

(5) Cadent may require such modifications to be made to the plan as may be reasonably necessary for the purpose of securing its apparatus against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Specified works must only be executed in accordance with—

(a) the plan submitted under sub-paragraph (1) (and ground monitoring scheme if required), as approved or as amended from time to time by agreement between the undertaker and Cadent; and

(b) all conditions imposed under sub-paragraph (4)(a), and Cadent will be entitled to watch and inspect the execution of those works.

(7) Where Cadent 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 Cadent’s satisfaction prior to the commencement of any specified works (or any relevant part thereof) for which protective works are required prior to commencement.

(8) If Cadent, 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 95 to 97 and 100 to 102 apply as if the removal of the apparatus had been required by the undertaker under sub-paragraph 101(2) (removal of apparatus).

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

(10) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development (including such an event attributable to its maintenance)—

(a) the undertaker must implement an appropriate ground mitigation scheme; and

(b) Cadent retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 104 (expenses).

(11) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works but in that case it must give to Cadent notice as soon as it reasonably practicable and a plan of those works and must comply with the conditions imposed under sub-paragraph (4)(a) insofar as it reasonably practicable in the circumstances.

(12) In this paragraph, “ emergency works” means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

Expenses

104.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to Cadent on demand, all charges, costs and expenses reasonably anticipated or reasonably incurred by Cadent in, or in connection with, the inspection, removal, relaying or replacing, alteration or protection of any apparatus or the construction of any new or alternative apparatus which may be required in consequence of the execution of any authorised development without limitation—

(a) any costs reasonably incurred by or compensation properly paid by Cadent in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation all costs (including professional fees) incurred by Cadent as a consequence of Cadent—

(i) using its own compulsory purchase powers to acquire any necessary rights under paragraph 101(3) (removal of apparatus) if it elects to do so; or

(ii) exercising any compulsory purchase powers under this Order transferred to or benefitting Cadent;

(b) in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;

(c) the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;

(d) the approval of plans;

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

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

(g) any watching brief pursuant to sub-paragraph 103(6) (retained apparatus: protection of Cadent).

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

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

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

(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration on accordance with paragraph 109 (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 Cadent by virtue of sub-paragraph (1) will be reduced by the amount of that excess save to the extent that it is not possible in the circumstances (or it would be unlawful due to a statutory or regulatory change) to obtain the existing type of apparatus at the same capacity and dimensions or place at the existing depth in which case full costs will be borne by the undertaker.

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

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

(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole will 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 Cadent in respect of works by virtue of sub-paragraph (1) will, 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 Cadent any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Indemnity

105.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works authorised by this Part of this Schedule (including without limitation relocation, diversion, decommissioning, construction and maintenance of apparatus or alternative apparatus) or in consequence of the construction, use, maintenance or failure of any of the authorised development (including works carried out under article 21 (protective work to buildings)) by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by the undertaker) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these 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 the authorised development) or property of Cadent, or there is any interruption in any service provided, or in the supply of any good, by Cadent, or Cadent becomes liable to pay any amount to any third party, the undertaker will—

(a) bear and pay on demand accompanied by an invoice or claim from Cadent, the cost reasonably incurred by Cadent in making good such damage or restoring the supply; and

(b) indemnify Cadent for any other expenses, loss, demands, proceedings, damages, claims, penalty, compensation or costs property incurred by, paid by or recovered from Cadent, by reason or in consequence of any such damage or interruption or Cadent becoming liable to any third party as aforesaid other than arising from any default of Cadent.

(2) The fact that any act or thing may have been done by Cadent on behalf of the undertaker or in accordance with a plan approved by Cadent or in accordance with any requirement of Cadent or under its supervision including under any watching brief will not (unless sub-paragraph (3) applies) excuse the undertaker from liability under the provisions of this sub-paragraph (1) unless Cadent fails to carry out and execute the works properly with due care and attention and in a skilful and workman 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 in respect of—

(a) any damage or interruption to the extent that it is attributable to the neglect or default of Cadent, its officers, servants, contractors or agents;

(b) any part of the authorised development carried out by Cadent in the exercise of any functions conferred by this Order pursuant to a grant or transfer under article 11 (consent to transfer benefit of the Order); and

(c) any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption, which is not reasonably foreseeable at the commencement of the relevant works referred to in sub-paragraph (1).

(4) Cadent must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission or liability or compromise must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering their representations.

Enactments and agreements

106.  Except where this Part of this Schedule provides otherwise or by agreement in writing between Cadent and the undertaker, nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and Cadent in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Co-operation

107.—(1) Where in consequence of the proposed construction of any part of the authorised development, the undertaker or Cadent requires the removal of apparatus under paragraph 101(2) (removal of apparatus) or Cadent makes requirements for the protection or alteration of apparatus under paragraph 103 (retained apparatus: protection of Cadent), the undertaker must use its 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 Cadent’s undertaking and Cadent must use its best endeavours to co-operate with the undertaker for that purpose.

(2) For the avoidance of doubt whenever Cadent’s consent, agreement or approval is required in relation to plans, documents or other information submitted by Cadent or the taking of action by Cadent, it must not be unreasonably withheld or delayed.

Access

108.  If in consequence of any agreement reached in accordance with paragraph 100(1) (acquisition of land) or the powers conferred by this Order the access to any apparatus is materially obstructed, the undertaker must provide such alternative rights and means of access to such apparatus as well enable Cadent to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

109.  Save for differences or disputes arising under sub-paragraphs 101(2) and 101(4) (removal of apparatus) and 103(11) (retained apparatus: protection of Cadent) any difference or dispute arising between the undertaker and Cadent under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Cadent, be determined by arbitration in accordance with article 50 (arbitration).

Notices

110.  Notwithstanding article 53 (service of notices) any plans submitted to Cadent by the undertaker pursuant to sub-paragraph 103(1) (retained apparatus: protection of Cadent) must be sent by email to Cadent Gas Limited Plant Protection at[email protected]as well as by post to Plant Protection, Cadent Gas Limited, Brick Kiln Street, Hinckley, Leicestershire, LE10 0NA, or such other address as Cadent may from time to time appoint instead for that purpose and notify to the undertaker in writing.

Articles 2 and 48

SCHEDULE 10 DOCUMENTS TO BE CERTIFIED

EXPLANATORY NOTE

(This note is not part of the Order)

This Order authorises National Highways to construct a new 10 mile (16km) dual 2-lane carriageway from the Black Cat roundabout to Caxton Gibbet roundabout, to be known as the A421 (defined in the Order as the “new dual carriageway”) and in addition approximately 1.8 miles (3km) of tie-in works.

The Order permits National Highways to acquire, compulsorily or by agreement, land and rights in land and to use land for this purpose.

The Order also makes provision in connection with the maintenance of the authorised development.

A copy of the plans, engineering section drawings, book of reference and environmental statement mentioned in this Order and certified in accordance with article 48 (certification of documents, etc.) may be inspected free of charge during working hours at National Highways, Woodlands, Manton Industrial Estate, Manton Lane, Bedford MK41 7LW.