PART 1PRELIMINARY

Citation and commencement

1.  This Order may be cited as the M4 Motorway (Junctions 3 to 12) (Smart Motorway) Development Consent Order 2016 and comes into force on 23rd September 2016.

Interpretation

2.-(1) In this Order-

"the 1961 Act" means the Land Compensation Act 1961(4);

"the 1965 Act" means the Compulsory Purchase Act 1965(5);

"the 1980 Act" means the Highways Act 1980(6);

"the 1981 Act" means the Compulsory Purchase (Vesting Declarations) Act 1981(7);

"the 1984 Act" means the Road Traffic Regulation Act 1984(8);

"the 1990 Act" means the Town and Country Planning Act 1990(9);

"the 1991 Act" means the New Roads and Street Works Act 1991(10);

"the 2008 Act" means the Planning Act 2008(11);

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

"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;

"the book of reference" means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

"building" includes any structure or erection or any part of a building, structure or erection;

"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(12);

"bridleway" has the same meaning as in the 1980 Act;

"carriageway" has the same meaning as in the 1980 Act;

"cycle track" has the same meaning as in section 329(1) (further provisions as to interpretation) of the 1980 Act(13);

"discharging authority" means a relevant planning authority, a highway authority, a street authority, a traffic authority or the owner of a watercourse, sewer or drain;

"electronic transmission" means a communication transmitted-

"the engineering drawings and sections" means the documents certified as the engineering drawings and sections by the Secretary of State for the purposes of this Order;

"environmental statement" means the document submitted under regulation 5(2)(a) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009(14), 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 the 1980 Act;

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

"land plans" means the plans certified by the Secretary of State as the land plans for the purposes of this Order;

"linear work" means those works shown on the works plans as "Linear Work Item Centreline";

"maintain" includes inspect, repair, adjust, alter, remove, clear, refurbish, reconstruct, decommission, demolish, replace and improve and any derivative of "maintain" is to be construed accordingly;

"non-linear work" means those scheduled works to be carried out in the locations shown on the works plans as "Non-linear Work Boundary";

"Order land" means the land shown on the land plans 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 shown on the works plans and the land plans, within which the authorised development 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(15);

"relevant planning authority" means the local planning authority for the land in question;

"requirements" means the requirements set out in Schedule 2 (requirements), and references to numbered requirements are references to the corresponding paragraph number in Schedule 2;

"the rights of way and access plans" means the plans certified by the Secretary of State as the rights of way and access plans for the purposes of this Order;

"scheduled works" means the numbered works specified in Schedule 1 (authorised development) and shown on the works plans, or any part of them;

"Secretary of State" means the Secretary of State for Transport;

"slip road" means any of the slip roads leading to or from the eastbound carriageway or the westbound carriageway of the M4 between Junctions 3 and 12;

"special road" means a highway which is a special road in accordance with section 16 (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 (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 of the 1991 Act;

"the tribunal" means the Lands Chamber of the Upper Tribunal;

"trunk road" means a highway which is a trunk road by virtue of-

"TSCS" means a thin surface course system as defined in the Manual of Contract Documents for Highway Works, Volume 1 Specification for Highway Works clause 942;

"undertaker" means Highways England Company Limited, company number 09346363, whose registered office is at Bridge House, 1 Walnut Tree Close, Guildford, Surrey, GU1 4LZ, which is the named undertaker, any statutory successor to Highways England, or any other person who has the benefit of this Order in accordance with article 7 (benefit of Order);

"watercourse", unless otherwise provided, 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

"the works plans" means the plans certified by the Secretary of State as the works plans 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 air-space above its surface.

(3) 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.

(4) All areas described in square metres in the book of reference are approximate.

(5) References in this Order to numbered plots of land are to plots identified on the land plans and in the book of reference.

(6) References in this Order to numbered works are references to the works as numbered in Schedule 1.

PART 2PRINCIPAL POWERS

Development consent etc. granted by the Order

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

(2) Subject to article 6 (power to deviate) the authorised development must be constructed in the lines or situations shown on the works plans and, subject to the provisions of the requirements, in accordance with the drawings specified in the requirements.

Maintenance of authorised development

4.  Without limitation on the scope of section 41 (duty to maintain highways maintainable at the public expense) of the 1980 Act and section 1 (appointment of strategic highways companies) of the Infrastructure Act 2015(16) the undertaker may at any time maintain the authorised development, except to the extent that this Order or an agreement made under this Order or the 1980 Act, provides otherwise.

Planning permission

5.  If planning permission is granted under the powers conferred by the 1990 Act for development any part of which is within the Order limits following the coming into force 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 use or operation of any part of the authorised development,

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.

Power to deviate

6.  In carrying out the scheduled works the undertaker may-

(a)deviate laterally from the lines or situations shown on the works plans within the Order limits in respect of any linear work and in respect of any non-linear work within the Non-linear Work Boundary for that work;

(b)deviate vertically from the levels shown or noted on the engineering drawings and sections, to a maximum of 0.5 metres upwards or downwards; and

(c)deviate vertically from the parapet heights stated on the engineering drawings and sections, to a maximum of 0.5 metres upwards.

Benefit of the Order

7.-(1) Subject to article 8 (consent to transfer benefit of the 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 the Order

8.-(1) The undertaker may with the consent of the Secretary of State-

(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; or

(b)grant to another person ("the lessee") for a period agreed between the undertaker and the lessee 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, except in paragraph (3), include references to the transferee or the lessee.

(3) The exercise by a person of any benefits or rights conferred in accordance with any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those benefits or rights were exercised by the undertaker.

PART 3STREETS

Application of the 1991 Act

9.-(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) (highway authorities, highways and related matters) of that Act (which defines what highway authority works are major highway works); or

(b)they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64(17) (dual carriageways and roundabouts) of the 1980 Act or section 184 (vehicle crossings over footways and verges)of that Act.

(2) In Part 3 of the 1991 Act references, in relation to major highway works, 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 (directions as to timing);

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

• section 58 (restrictions following substantial road works);

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

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

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

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

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

• Schedule 3A (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 stopping up, alteration or diversion of a street of a temporary nature by the promoter under the powers conferred by article 14 (temporary stopping up of streets) whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

(5) The provisions of the 1991 Act(18) referred to in paragraph (4) are-

• section 54(19) (advance notice of certain works), subject to paragraph (6);

• section 55(20) (notice of starting date of works), subject to paragraph (6);

• section 57(21) (notice of emergency works);

• section 59(22) (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 (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 stopping up, 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)-

(a)affects the operation of section 87 (prospectively maintainable highways) of the 1991 Act, and the undertaker is not 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

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

Power to alter layout etc. of streets

10.-(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, cycle track or verge within the street;

(b)alter the level or increase the width of any such kerb, footway, 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 end of the period of 6 weeks beginning with the date on which the application was made, 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 being carried out.

Street works

11.-(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;

(c)place apparatus in the street;

(d)maintain apparatus in the street or change its position; and

(e)execute any works required for, or incidental to, any works referred to in sub-paragraphs (a), (b), (c) and (d).

(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.

(3) The provisions of sections 54 to 106 of the 1991 Act apply to any street works carried out under paragraph (1).

Construction and maintenance of new, altered or diverted streets

12.-(1) Subject to paragraphs (3) and (4), any street (other than a trunk road or special road) to be constructed under this Order must be completed to the reasonable satisfaction of the local highway authority in whose area the street lies and, unless otherwise agreed with the local highway authority, must be maintained by and at the expense of the local highway authority from its completion.

(2) Subject to paragraphs (3) and (4), where a street (other than a trunk road or special road) is altered or diverted under this Order, the altered or diverted part of the street must, when completed to the reasonable satisfaction of the street authority, unless otherwise agreed with the street authority, be maintained by and at the expense of the street authority from its completion.

(3) In the case of a bridge constructed under this Order to carry a public right of way, the highway surface must be completed to the reasonable satisfaction of the street authority and maintained by and at the expense of the local highway authority and the structure of the bridge must be maintained by and at the expense of the undertaker.

(4) In the case of a bridge constructed under this Order to carry a private right of way, the surface and the structure of the bridge must be maintained by and at the expense of the undertaker.

(5) In any action against the undertaker in respect of loss or damage resulting from any failure by the undertaker to maintain a street under this article, it is a defence (without affecting 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.

(6) For the purposes of a defence under paragraph (5), 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 that the competent person had carried out those instructions.

Permanent stopping up of streets

13.-(1) Subject to the provisions of this article, the undertaker may, in connection with the carrying out of the authorised development, stop up each of the streets specified in columns (1) and (2) of Schedule 3 (permanent stopping up of streets for which a substitute is to be provided) to the extent specified and described in column (3) of that Schedule.

(2) No street specified in columns (1) and (2) of Schedule 3 is to be wholly or partly stopped up under this article unless-

(a)the new street to be constructed and substituted for it, specified in column (4) 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 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, until the completion and opening of the new street in accordance with sub-paragraph (a).

(3) Where a street has been stopped up under this article-

(a)all rights of way over or along the street 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 as is bounded on both sides by land owned by the undertaker.

(4) 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, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(5) This article is subject to article 31 (apparatus and rights of statutory undertakers in stopped up streets).

Temporary stopping up of streets

14.-(1) The undertaker, during and for the purposes of carrying out the authorised development, may temporarily stop up, alter or divert 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 temporarily stopped up 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 stopping up, alteration or diversion of a street under this article if there would otherwise be no such access.

(4) Without limitation on the scope of paragraph (1), the undertaker may temporarily stop up, alter or divert the streets specified in columns (1) and (2) of Schedule 4 (temporary stopping up of streets) to the extent specified in column (3) of that Schedule.

(5) The undertaker must not temporarily stop up, alter or divert any street for which the undertaker is not the street authority without the consent of the street authority, which may attach reasonable conditions to any consent.

(6) If a street authority which receives an application for consent under paragraph (5) fails to notify the undertaker of its decision before the end of the period of 6 weeks beginning with the date on which the application was made, it is deemed to have granted consent.

(7) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Access to works

15.  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.

Powers in relation to relevant navigations or watercourses

16.-(1) Subject to Schedule 9 (protection of interests), the undertaker may, for the purpose of or in connection with the carrying out and maintenance of the authorised development, regardless of any interference with any public or private rights-

(a)temporarily alter, interfere with, occupy and use the banks, bed, foreshores, waters and walls of a relevant navigation or watercourse;

(b)remove or relocate any moorings so far as may be reasonably necessary for the purposes of carrying out and of maintaining the authorised development;

(c)temporarily moor or anchor vessels and structures;

(d)construct, place, maintain and remove temporary works and structures within the banks, bed, foreshores, waters and walls of a relevant navigation or watercourse; and

(e)interfere with the navigation of any relevant navigation or watercourse,

in such manner and to such extent as may appear to it to be necessary or convenient.

(2) Except in the case of emergency, the undertaker must use reasonable endeavours to notify the owner of any mooring affected by the proposal to exercise the powers conferred by paragraph (1)(b) before the exercise of those powers.

(3) The undertaker must pay compensation to any person entitled to compensation under the 1961 Act who suffers any loss or damage from the exercise of the powers conferred by paragraph (1)(b).

(4) Any dispute as to a person's entitlement to compensation under paragraph (3), or as to the amount of compensation, is to be determined under Part 1 of the 1961 Act.

(5) In this article, "relevant navigation" means so much of-

(a)The Kennet and Holy River;

(b)The Kennet and Avon Canal;

(c)The River Thames;

(d)The River Crane;

(e)The Jubilee River;

(f)The Cut; and

(g)River Colne,

as the context requires.

(6) Nothing in this article overrides the requirement to obtain necessary consents under the Water Resources Act 1991(23), the Environmental Permitting (England and Wales) Regulations 2010(24) or the Thames Water Authority Land Drainage Byelaws 1981.

PART 4SUPPLEMENTAL POWERS

Discharge of water

17.-(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 or maintenance 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 the 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(25).

(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.

(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; and

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

(5) The undertaker must not, in carrying out or maintaining works under the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) 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 the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2010 (requirement for environmental permit).

(8) In this article-

(a)"public sewer or drain" means a sewer or drain which belongs to the Homes and Communities Agency, the Environment Agency, an internal drainage board, a joint planning board, a local authority, a sewerage undertaker or an urban development corporation; and

(b)other expressions, except watercourse and any other term defined in this Order, that are used both in this article and in the Environmental Permitting (England and Wales) Regulations 2010 have the same meaning as in those Regulations.

(9) If a person under paragraph (3) receives an application for consent and fails to notify the undertaker of its decision before the end of the period of 6 weeks beginning with the date on which the application was made, the person is deemed to have granted consent.

Protective work to buildings

18.-(1) Subject to the following provisions of this article, the undertaker may at the undertaker's own expense carry out such protective works to any building lying within the Order limits or 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, subject to paragraph (5), enter and survey any building falling within paragraph (1) and any land within its curtilage.

(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 intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specify 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 42 (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 (compensation in case where no right to claim in nuisance) of the 2008 Act.

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

(11) 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

19.-(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;

(b)without limitation on the scope of sub-paragraph (a), make trial holes in such positions on the land as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;

(c)without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land; 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 of trial holes.

(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) 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 authority to do so; and

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

(4) 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.

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

(6) If a highway authority under paragraph (4)(4)(a) or a street authority under paragraph (4)(4)(b) receives an application for consent and fails to notify the undertaker of its decision before the end of the period of 6 weeks beginning with the date on which the application was made, the highway authority or street authority, as relevant, is deemed to have granted consent.

PART 5POWERS OF ACQUISITION

Compulsory acquisition of land

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

(2) This article is subject to paragraph (2) of article 22 (compulsory acquisition of rights) and paragraph (8) of article 28 (temporary use of land for carrying out the authorised development).

Time limit for exercise of authority to acquire land compulsorily

21.-(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 (compulsory purchase under Acquisition of Land Act of 1946) 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 24 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

(2) The authority conferred by article 28 (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 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

22.-(1) Subject to paragraph (2), the undertaker may acquire such rights over the Order land as may be required for any purpose for which that land may be acquired under article 20 (compulsory acquisition of land) by creating them as well as acquiring rights already in existence.

(2) In the case of the Order land specified in column (1) of Schedule 5 (land in which only new rights etc. may be acquired) the undertaker's powers of compulsory acquisition are limited to the acquisition of such wayleaves, easements, new rights in the land as may be required for the purpose specified in relation to that land in column (2) of that Schedule.

(3) Subject to section 8 (other provisions as to divided land) of the 1965 Act, as substituted by paragraph 5 of Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights), where the undertaker acquires a right over land under paragraph (1) or (2), the undertaker is not required to acquire a greater interest in that land.

(4) Schedule 6 (modification of compensation and compulsory purchase enactments for creation of new rights) 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.

Private rights over land

23.-(1) Subject to the provisions of this article, all private rights over land subject to compulsory acquisition under this Order are extinguished-

(a)as from the date of acquisition of the land 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.

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

(a)as from the date of the acquisition of the right 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) 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 which are within the Order limits are extinguished on commencement of any activity authorised by this Order which 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 (compensation in case where no right to claim in nuisance) of the 2008 Act to be determined, in case of 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 (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) of the 2008 Act or article 30 (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 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 as is 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.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

24.-(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 person authorised to acquire land by means of a compulsory purchase order."

(4) In section 3 (preliminary notices) for subsection (1) substitute-

"(1) Before making a declaration under section 4 with respect to any land which is subject to a compulsory purchase order the acquiring authority must include the particulars specified in subsection (3) in a notice which is-

(a)given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession); and

(b)published in a local newspaper circulating in the area in which the land is   situated."

(5) In that section, in subsection (2), for "(1)(b)" substitute "(1)" and after "given" insert "and published".

(6) In that section, for subsections (5) and (6) substitute-

"(5) For the purposes of this section, a person has a relevant interest in land if-

(a)that person is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion; or

(b)that person holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month."

(7) In section 5 (earliest date for execution of declaration)-

(a)in subsection (1), after "publication" insert "in a local newspaper circulating in the area in which the land is situated"; and

(b)omit subsection (2).

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

(9) References to the 1965 Act in the 1981 Act are to be construed as references to the 1965 Act as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act to the compulsory acquisition of land under this Order.

Acquisition of subsoil or air-space only

25.-(1) The undertaker may acquire compulsorily so much of, or such rights in, the subsoil of or the air-space over the land referred to in paragraph (1) of article 20 (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 air-space over land referred to in paragraph (1), the undertaker is not required to acquire an interest in any other part of the land.

(3) Paragraph (2) does not prevent article 26 (acquisition of part of certain properties) from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

Acquisition of part of certain properties

26.-(1) This article applies instead of section 8(1)(26) (other provisions as to divided land) of the 1965 Act (as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act) where-

(a)a notice to treat is served on a person ("the owner") under the 1965 Act (as so applied) in respect of land forming only part of a house, building or manufactory or of land consisting of a house with a park or garden ("the land subject to the notice to treat"); and

(b)a copy of this article is served on the owner with the notice to treat.

(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the undertaker a counter-notice objecting to the sale of the land subject to the notice to treat and stating that the owner is willing and able to sell the whole ("the land subject to the counter-notice").

(3) If no such counter-notice is served within that period, the owner must sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner must sell only the land subject to the notice to treat is, unless the undertaker agrees to take the land subject to the counter-notice, to be referred to the tribunal.

(5) If on such a reference the tribunal determine that the land subject to the notice to treat can be taken-

(a)without material detriment to the remainder of the land subject to the counter-notice; or

(b)in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner must sell the land subject to the notice to treat.

(6) If on such a reference the tribunal determine that only part of the land subject to the notice to treat can be taken-

(a)without material detriment to the remainder of the land subject to the counter-notice; or

(b)in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat is deemed to be a notice to treat for that part.

(7) If on such a reference the tribunal determine that-

(a)the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b)the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land subject to the counter-notice, or if the tribunal determine that-

(a)none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b)the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat is deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the undertaker is authorised to acquire compulsorily under this Order.

(9) Where, by reason of a determination by the tribunal under this article a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the undertaker may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and in that event must pay the owner compensation for any loss or expense occasioned to the owner by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

(10) Where the owner is required under this article to sell only part of a house, building or manufactory or of land consisting of a house with a park or garden, the undertaker must pay the owner compensation for any loss sustained by the owner due to the severance of that part in addition to the value of the interest acquired.

Rights under or over streets

27.-(1) The undertaker may enter on and appropriate so much of the subsoil of, or air-space over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or air-space 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, under Part 1 of the 1961 Act.

(5) Compensation is not payable under paragraph (4) to any person who is an undertaker to whom section 85 (sharing 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

28.-(1) The undertaker may, in connection with the carrying out of the authorised development-

(a)enter on and take temporary 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(27) (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;

(b)remove any buildings and vegetation from that land; and

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

(2) Not less than 14 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.

(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 any 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 (land of which temporary possession may be taken); 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 (powers of entry) of the 1965 Act or made a declaration under section 4 (execution of declaration) 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; or

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

(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 under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(7) Nothing in this article affects any liability to pay compensation under section 152 (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).

(8) The undertaker may not compulsorily acquire under this Order the land referred to in paragraph (1)(a)(i) except that the undertaker is not precluded from-

(a)acquiring new rights over any part of that land under article 22 (compulsory acquisition of rights); or

(b)acquiring any part of the subsoil (or rights in the subsoil of or air-space over) that land under article 25 (acquisition of subsoil or air-space only).

(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(28) (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 (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 20 (compulsory acquisition of land) or any land specified in Schedule 5 (land in which only new rights etc. may be acquired).

Temporary use of land for maintaining the authorised development

29.-(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 on 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; and

(b)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 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.

(4) 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.

(5) 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.

(6) 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 rising from the exercise in relation to the land of the provisions of this article.

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

(8) Nothing in this article affects any liability to pay compensation under section 152 (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 maintenance of the authorised development, other than loss or damage for which compensation is payable under paragraph (6).

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

(10) 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.

(11) 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

30.-(1) Subject to the provisions of article 22(3) (compulsory acquisition of rights), Schedule 9 (protection of interests) and paragraph (2), the undertaker may-

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

(b)extinguish the rights of, 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 31 (apparatus and rights of statutory undertakers in stopped up streets).

Apparatus and rights of statutory undertakers in stopped up streets

31.-(1) Where a street is stopped up under article 13 (permanent stopping up of streets), 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 14 (temporary stopping up of streets) 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 (street works in England and Wales) 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-

"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) (interpretation) of the Communications Act 2003(29).

Recovery of costs of new connections

32.-(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 30 (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 30 (statutory undertakers), 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 31 (apparatus and rights of statutory undertakers in stopped up streets) or Part 3 (street works in England and Wales) of the 1991 Act applies.

(4) In this article-

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

"public utility undertaker" has the same meaning as in the 1980 Act.

Compulsory acquisition of land – incorporation of the mineral code

33.  Parts 2 and 3 of Schedule 2 (minerals) to the Acquisition of Land Act 1981(30) are incorporated in this Order subject to the modifications that-

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

(b)for "the acquiring authority" substitute "the undertaker"; and

(c)for "minerals" substitute "minerals and other substances".

Special category land

34.-(1) Subject to paragraph (2), so much of the special category land as is required for the purposes of the exercise by the undertaker of the Order rights is discharged from all rights, trusts and incidents to which it was previously subject.

(2) Plots 10-01a and 10-01b are not to be discharged from the rights, trusts and incidents to which they were previously subject until the Secretary of State has certified that a scheme for the provision of replacement land as common has been implemented to the Secretary of State's satisfaction.

(3) In this article-

"the Order rights" means rights exercisable over special category land by the undertaker under articles 19 (authority to survey and investigate land), 20 (compulsory acquisition of land), 22 (compulsory acquisition of rights), or 28 (temporary use of land for carrying out the authorised development);

"the special category land" means the land identified as forming open space and registered common land and numbered 10-01a, 10-01b, 18-19, 20-03, 20-27, 20-28, 20-32, 20-33, 20-34, 20-35, 20-36, 20-37a, 20-37c, 20-41a, 20-41c, 21-01, 21-02a, 21-02c, 21-02d, 21-12a, 21-13, 21-15, 21-16, 21-17, 22-12, 22-26, 23-04, 23-32, 23-33, 23-34, 23-35 in the book of reference and on the land plans; and

"the replacement land" means the land identified on the plan entitled "replacement land plan".

PART 6MISCELLANEOUS AND GENERAL

Felling or lopping of trees

35.-(1) The undertaker may fell or lop any tree or shrub within or overhanging land within the Order limits, or cut back its roots, 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 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.

(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 under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

Trees subject to tree preservation orders

36.-(1) The undertaker may fell or lop any tree described in Schedule 8 (trees subject to tree preservation orders), cut back its roots or undertake such other works described in column (2) of that Schedule if the undertaker 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)-

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

(b)the duty contained in section 206(1) (replacement of trees) of the 1990 Act is not to apply.

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

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

Operational land for purposes of the 1990 Act

37.  Development consent granted by this Order is to be treated as specific planning permission for the purposes of section 264(3)(a) (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

38.-(1) Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990(31) in relation to a nuisance falling within paragraphs (c), (d), (e), (fb), (g), (ga) and (h) of section 79(1) (statutory nuisances and inspections therefor) of that Act no order is to be made, and no fine may be imposed, under section 82(2) 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 site), or a consent given under section 61 (prior consent for work on construction site) of the Control of Pollution Act 1974(32); 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 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.

Protection of interests

39.  Schedule 9 (protection of interests) has effect.

Certification of plans, etc.

40.-(1) The undertaker must, as soon as practicable after the making of this Order, submit to the Secretary of State copies of-

(a)the land plans (Document Reference No. 2.2, dated January 2016) which are listed in full in Schedule 10 (documents subject to certification);

(b)the works plans (Document Reference No. 2.3, dated February 2016) which are listed in full in Schedule 10;

(c)the rights of way and access plans (Document Reference No. 2.4, dated March 2015;

(d)the engineering drawings and sections (Document Reference Nos. 2.5 - 2.9, dated March 2015) which are listed in full in Schedule 12 (engineering drawings, sections and other information);

(e)the book of reference (Document Reference No. 4.3, dated January 2016);

(f)the environmental statement (Document Reference No. 6.1, dated March 2015);

(g)the outline environmental management plan (Document Reference No. 6.3/4.2, dated March 2015);

(h)the outline construction environmental management plan (Document Reference No. 6.3/4.2, dated March 2016);

(i)the engineering and design report (Document Reference No. 7.3, dated March 2015);

(j)the environmental masterplan, being Annex A to the engineering and design report (Document Reference No. 7.4, dated February 2016);

(k)the drainage strategy report (Document Reference No. 7.5, dated January 2016);

(l)the replacement land plan (Document Reference 514451-MUH-ML-ZZ-SK-LR-301458, dated March 2015); and

(m)the flood risk assessment (Document Reference No. 5.3, dated February 2016),

for certification that they are true copies of the plans or documents referred to in this Order.

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

Service of notices

41.-(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(33) 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 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 will be 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

42.  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.

Traffic regulation

43.-(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 vehicular 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) Subject to paragraph (7), the power conferred by paragraph (2) must not be exercised after the expiry of 12 months from the opening of the authorised development for public use, but 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 to do so 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 to do so 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 the undertaker's 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 places) of the 1984 Act(34),

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(35).

(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 opening of the authorised development.

(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 a traffic authority which receives an application for consent under paragraph (2) fails to notify the undertaker of its decision before the end of the period of 6 weeks beginning with the date on which the application was made, it is deemed to have granted consent.

Procedure in relation to certain approvals etc.

44.-(1) Where an application is made to or a request is made of a discharging authority or the Secretary of State for any consent, agreement or approval required or contemplated by any of the provisions of the Order such consent, agreement or approval must, if given, be given in writing and must not be unreasonably withheld.

(2) Schedule 11 (procedure for discharge of certain approvals) has effect in relation to all consents, agreements or approvals granted, refused or withheld by a discharging authority, but does not apply to any decision of the Secretary of State to which the procedure under Part 2 of Schedule 2 (procedure for discharge of requirements) applies.

SCHEDULES

Article 2

SCHEDULE 1AUTHORISED DEVELOPMENT

In the administrative areas of West Berkshire Council, Wokingham Borough Council, Reading Borough Council, the Royal Borough of Windsor and Maidenhead, Bracknell Forest Council, Buckinghamshire County Council, South Bucks District Council, Slough Borough Council, the London Borough of Hillingdon, the London Borough of Hounslow and the Greater London Authority

Work No. 1a – The improvement of the eastbound carriageway of the M4 Motorway (51.3 kilometres in length) commencing at grid reference 465337E; 171339N and terminating at grid reference 510045E; 178287N; and

Work No. 1b – The improvement of the westbound carriageway of the M4 Motorway (51.3 kilometres in length) commencing at grid reference 510079E; 178265N and terminating at grid reference 465313E; 171333N;

such works including-

(a)conversion of the existing hard shoulder to a running lane;

(b)the provision of a hardened central reserve with a rigid concrete barrier dividing Works No. 1a and 1b;

(c)the construction of 18 no. super-span portal gantries above the M4 motorway each spanning both Works No. 1a and 1b, as shown on drawing 514451-MUH-ST-ZZ-DR-GN-301411 of the engineering drawings and sections, within the gantry siting locations shown as "Gantry Type 1" on the works plans, including gantry foundations, gantry structure, signs, signals, sign illumination, control cabinets, power and communication cable connections;

(d)the construction of 5 no. single carriageway portal gantries above the M4 motorway each spanning either Works No. 1a or 1b, as shown on drawing 514451-MUH-ST-ZZ-DR-GN-301412 of the engineering drawings and sections, within the gantry siting locations shown as "Gantry Type 2" on the works plans, including gantry foundations, gantry structure, signs, signals, sign illumination, control cabinets, power and communication cable connections;

(e)the construction of 24 no. super-span cantilever gantries above the M4 over either Works No. 1a or 1b, as shown on drawing 514451-MUH-ST-ZZ-DR-GN-301413 of the engineering drawings and sections, within the gantry siting locations shown as "Gantry Type 3" on the works plans, including gantry foundations, gantry structure, signs, signals, sign illumination, control cabinets, power and communication cable connections;

(f)the construction of 25 no. sign-only cantilever gantries above the M4 over either Works No. 1a or 1b, as shown on drawing 514451-MUH-ST-ZZ-DR-GN-301414 of the engineering drawings and sections, within the gantry siting locations shown as "Gantry Type 4" on the works plans, including gantry foundations, gantry structure, signs, sign illumination, control cabinets, power cable connections;

(g)the construction of 51 no. MS4 signal cantilever gantries above the M4 over either Works No. 1a or 1b, as shown on drawing 514451-MUH-ST-ZZ-DR-GN-301415 and 514451-MUH-ST-ZZ-DR-GN-301416 of the engineering drawings and sections, within the gantry siting locations shown as "Gantry Type 5" on the works plans, including gantry foundations, gantry structure, signals, control cabinets, power and communication cable connections;

(h)the construction of 7 no. MS3 signal cantilever gantries above the M4 over either Works No. 1a or 1b, as shown on drawing 514451-MUH-ST-ZZ-DR-GN-301417 of the engineering drawings and sections, within the gantry siting locations shown as "Gantry Type 6" on the works plans, including gantry foundations, gantry structure, signals, control cabinets, power and communication cable connections;

(i)the construction of new signs and signals on 7 no. re-used portal gantries above the M4 over either Works No. 1a or 1b, within the gantry siting locations shown as "Re-used Gantry Type 7" on the works plans, including removal of existing signs and signals, refurbishment of gantry structure, signs, signals, sign illumination, control cabinets and power and communication cable connections;

(j)the provision of new signals on 20 no. re-used cantilever gantries above the M4 over either Works No. 1a or 1b, within the gantry siting locations shown as "Re-used Gantry Type 8" on the works plans, including removal of existing signs and signals, refurbishment of gantry structure, signals, control cabinets and power and communication cable connections;

(k)the demolition of 41 no. existing gantries above the M4 within the gantry siting locations shown as "Demolish Gantry" on the works plans, including decommissioning, demolition to ground level and removal from site;

(l)the construction of 17 no. emergency refuge areas on the eastbound carriageway of the M4 motorway at the locations shown by "ERA" on the works plans, including the installation of emergency telephones;

(m)the construction of 16 no. emergency refuge areas on the westbound carriageway of the M4 motorway at the locations shown by "ERA" on the works plans, including the installation of emergency telephones;

(n)the construction of 5 no. police observation platforms on the eastbound carriageway of the M4 motorway at the locations shown by "POP" on the works plans;

(o)the construction of 4 no. police observation platforms on the westbound carriageway of the M4 motorway at the locations shown by "POP" on the works plans; and

(p)the construction and installation of 139 no. closed circuit television camera supports on the M4 motorway at the locations shown by a camera icon on the works plans.

In the administrative area of West Berkshire Council

Work No. 2a – The realignment of the M4 Junction 12 (Theale) eastbound on-slip commencing at grid reference 465236E; 171427N and terminating at grid reference 465627E; 171163N.

Work No. 2b – The realignment of the M4 Junction 12 (Theale) westbound off-slip commencing at grid reference 465643E; 171122N and terminating at grid reference 465192E; 171383N.

Work No. 3a – The realignment of the Reading Motorway Service Area eastbound off-slip commencing at grid reference 467119E; 170000N and terminating at grid reference 467427E; 169953N.

Work No. 3b – The realignment of the Reading Motorway Service Area eastbound on-slip commencing at grid reference 467443E; 169947N and terminating at grid reference 467762E; 169738N.

Work No. 3c – The realignment of the Reading Motorway Service Area westbound off-slip commencing at grid reference 467783E; 169699N and terminating at grid reference 467432E; 469710N.

Work No. 3d – The realignment of the Reading Motorway Service Area westbound on-slip commencing at grid reference 467424E; 169713N and terminating at grid reference 467118E; 169965N.

In the administrative area of Wokingham Borough Council and Reading Borough Council

Work No. 4a – The realignment of the M4 Junction 11 (Three Mile Cross) eastbound off-slip commencing at grid reference 470765E; 169102N and terminating at grid reference 471343E; 168783N.

Work No. 4b – The realignment of the M4 Junction 11 (Three Mile Cross) eastbound on-slip commencing at grid reference 471807E; 168641N and terminating at grid reference 472477E; 168653N.

Work No. 4c – The realignment of the M4 Junction 11 (Three Mile Cross) westbound off-slip commencing at grid reference 472539E; 168637N and terminating at grid reference 471850E; 168576N.

Work No. 4d – The realignment of the M4 Junction 11 (Three Mile Cross) westbound on-slip commencing at grid reference 471298E; 168737N and terminating at grid reference 470873E; 169006N.

In the administrative area of Wokingham Borough Council

Work No. 5a – The realignment of the M4 Junction 10 (Winnersh) eastbound off-slip commencing at grid reference 478879E; 170222N and terminating at grid reference 479314E; 170512N.

Work No. 5b – The improvement of the M4 Junction 10 (Winnersh) eastbound on-slip (1) commencing at grid reference 479492E; 170769N and terminating at grid reference 479658E; 170850N.

Work No. 5c – The realignment of the M4 Junction 10 (Winnersh) eastbound on-slip (2) commencing at grid reference 479797E; 171075N and terminating at grid reference 480403E; 171420N.

Work No. 5d – The realignment of the M4 Junction 10 (Winnersh) westbound off-slip commencing at grid reference 480708E; 171550N and terminating at grid reference 480159E; 171151N.

Work No. 5e – The improvement of the M4 Junction 10 (Winnersh) westbound on-slip (1) commencing at grid reference 479941E; 170955N and terminating at grid reference 479741E; 170888N.

Work No. 5f – The realignment of the M4 Junction 10 (Winnersh) westbound on-slip (2) commencing at grid reference 479576E; 170692N and terminating at grid reference 479056E; 170283N.

In the administrative area of the Royal Borough of Windsor and Maidenhead

Work No. 6a – The realignment of the M4 Junction 8/9 (Holyport) eastbound off-slip commencing at grid reference 487916E; 178093N and terminating at grid reference 488542E; 178548N.

Work No. 6b – The realignment of the M4 Junction 8/9 (Holyport) eastbound on-slip commencing at grid reference 488854E; 178630N and terminating at grid reference 489729E; 178617N and widening of the eastbound carriageway of the M4 motorway at the location of Ascot Road overbridge.

Work No. 6c – The realignment of the M4 Junction 8/9 (Holyport) westbound off-slip commencing at grid reference 489576E; 178580N and terminating at grid reference 488851E; 178561N and widening of the westbound carriageway of the M4 motorway at the location of the existing Ascot Road overbridge.

Work No. 6d – The realignment of the M4 Junction 8/9 (Holyport) westbound on-slip commencing at grid reference 488563E; 178475N and terminating at grid reference 487980E; 178112N.

Work No. 7a – Construction of a new bridge over the M4 to the east of the existing Ascot Road overbridge, demolition of the existing bridge and the realignment of Ascot Road commencing at grid reference 489273E; 178303N and terminating at grid reference 489488E; 178831N.

Work No. 7b – The construction of a new retaining wall below grade at the eastern side of Ascot Road in the realigned section north of the M4 motorway at the location shown on the works plans.

Work No. 8a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Monkey Island Lane overbridge commencing at grid reference 490874E; 179161N and terminating at grid reference 491117E; 179361N.

Work No. 8b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Monkey Island Lane overbridge commencing at grid reference 491076E; 179284N and terminating at grid reference 490958E; 179189N.

Work No. 8c – The construction of a new bridge over the M4 to the west of the existing Monkey Island Lane overbridge, demolition of the existing Monkey Island Lane overbridge, the realignment of Monkey Island Lane commencing at grid reference 490815E; 179422N and terminating at grid reference 491158E; 179115N and the extension of 2 no. flood channel culverts under Monkey Island Lane at the locations shown on the works plans.

In the administrative areas of the Royal Borough of Windsor and Maidenhead and Buckinghamshire County Council, South Bucks District Council

Work No. 9a – The widening of the M4 motorway at the location of the existing Thames Bray underbridge commencing at grid reference 491117E; 179361N and terminating at grid reference 491608E; 179713N, including realignment of the M4 central reserve and realignment of the footway and cycle way along the motorway.

Work No. 9b – The widening of Thames Bray underbridge over the River Thames to the north of the existing bridge at the location shown on the works plans including widening of foundations, substructure and bridge deck and replacement of bridge expansion joints to accommodate Work 9a.

In the administrative area of Buckinghamshire County Council, South Bucks District Council

Work No. 10a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Marsh Lane overbridge commencing at grid reference 491720E; 179753N and terminating at grid reference 491879E; 179796N.

Work No. 10b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Marsh Lane overbridge commencing at grid reference 491890E; 179765N and terminating at grid reference 491599E; 179670N.

Work No. 10c – The realignment of Marsh Lane commencing at grid reference 491645E; 179930N and terminating at grid reference 491950E; 179567N, including construction of retaining walls, raising of earthworks, demolition of the existing Marsh Lane overbridge over the M4 and construction of a new bridge over the M4.

Work No. 11a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Lake End Road overbridge commencing at grid reference 492816E; 180033N and terminating at grid reference 492943E; 180064N.

Work No. 11b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Lake End Road overbridge commencing at grid reference 492932E; 180018N and terminating at grid reference 492820E; 179994N.

Work No. 11c – The construction of a new bridge over the M4 to the west of the existing Lake End Road overbridge, the demolition of the existing Lake End Road overbridge, the realignment of Lake End Road commencing at grid reference 492866E; 179741N and terminating at grid reference 492948E; 180346N, and the provision of a new junction between Lake End Road and Huntercombe Lane.

In the administrative area of Buckinghamshire County Council, South Bucks District Council and Slough Borough Council

Work No. 12a – The realignment of the M4 Junction 7 (Huntercombe) eastbound off-slip commencing at grid reference 493056E; 180075N and terminating at grid reference 493372E; 180147N.

Work No. 12b – The realignment of the M4 Junction 7 (Huntercombe) eastbound on-slip commencing at grid reference 493451E; 180142N and terminating at grid reference 493784E; 179933N.

Work No. 12c – The realignment of the M4 Junction 7 (Huntercombe) westbound off-slip commencing at grid reference 493474E; 180003N and terminating at grid reference 493210E; 179964N.

Work No. 12d – The realignment of the M4 Junction 7 (Huntercombe) westbound on-slip commencing at grid reference 493194E; 179963N and terminating at grid reference 492823E; 180002N.

Work No. 12e – The construction of a new bridge for the southbound carriageway of the Junction 7 Link Road (Huntercombe Spur) over the M4 to the east of the existing Huntercombe Spur overbridge, demolition of the existing Huntercombe Spur overbridge, construction of a new bridge for the northbound carriageway of the Junction 7 Link Road (Huntercombe Spur) over the M4 and the realignment of the Junction 7 Link Road (Huntercombe Spur) commencing at grid reference 493202E; 179964N and terminating at grid reference 493446E; 180749N together with the construction of a new super-span cantilever gantry above the south bound carriageway of the Junction 7 Link Road (Huntercombe Spur) within the gantry siting location shown as "Gantry Type 3" on the works plans, including gantry foundations, gantry structure, signs, signals, sign illumination, control cabinets, and power cable connections.

Work No. 12f – The construction of a new retaining wall between the Junction 7 Link Road (Huntercombe Spur) and the Junction 7 eastbound on-slip at the location shown on the works plans.

In the administrative area of Slough Borough Council

Work No. 13a – The realignment of the M4 Junction 7 (Huntercombe) eastbound off-slip commencing at grid reference 493056E; 180075N and terminating at grid reference 493372E; 180147N.

Work No. 13b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Oldway Lane overbridge commencing at grid reference 493986E; 179828N and terminating at grid reference 493883E; 179860N.

Work No. 13c – The realignment of Oldway Lane commencing at grid reference 493877E; 179650N and terminating at grid reference 494017E; 180130N, including construction of retaining walls, raising of earthworks, demolition of the existing Oldway Lane overbridge over the M4 and construction of a new bridge over the M4.

Work No. 14a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Wood Lane overbridge commencing at grid reference 494937E; 179555N and terminating at grid reference 495073E; 179510N.

Work No. 14b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Wood Lane overbridge commencing at grid reference 495079E; 179477N and terminating at grid reference 494941E; 179522N.

Work No. 14c – The construction of a new bridge over the M4 to the east of the existing Wood Lane overbridge, the demolition of the existing Wood Lane overbridge and the realignment of Wood Lane commencing at grid reference 494859E; 179384N and terminating at grid reference 495124E; 179765N.

Work No. 15 – The extension of Chalvey Culvert to both north and south at the location shown on the works plans to accommodate Works 16a and 16d.

Work No. 16a – The realignment of the M4 Junction 6 (Chalvey) eastbound off-slip commencing at grid reference 495259E; 179448N and terminating at grid reference 495873E; 179259N.

Work No. 16b – The realignment of the M4 Junction 6 (Chalvey) eastbound on-slip commencing at grid reference 496277E; 179133N and terminating at grid reference 497074E; 179076N.

Work No. 16c – The realignment of the M4 Junction 6 (Chalvey) westbound off-slip commencing at grid reference 496856E; 179034N and terminating at grid reference 496258E; 179070N, including widening of the M4 motorway to the south side at the location of the existing Windsor Branch Railway overbridge, realignment of the M4 central reserve to the south and widening the M4 earthworks embankment to the south using strengthened or retained earthworks.

Work No. 16d – The realignment of the M4 Junction 6 (Chalvey) westbound on-slip commencing at grid reference 495221E; 179428N and terminating at grid reference 495864E; 179204N.

Work No. 17 – The widening of Windsor Branch Railway underbridge to the south side of the existing bridge, at the location shown on the works plans, including widening of foundations, substructure and bridge deck to accommodate Works 16b and 16c.

Work No. 18 – The extension of the water and gas main subway under the M4 carriageway west of Datchet Road to both north and south at the location shown on the works plans including diversion of the utilities passing through the subway and closure of the existing access manholes in the hard shoulders of the M4 motorway.

In the administrative area of Slough Borough Council and the Royal Borough of Windsor and Maidenhead

Work No. 19a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Datchet Road overbridge commencing at grid reference 497855E; 178907N and terminating at grid reference 497983E; 178805N.

Work No. 19b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Datchet Road overbridge commencing at grid reference 497983E; 178764N and terminating at grid reference 497844E; 178877N.

Work No. 19c – The construction of a new bridge over the M4 to the east of the existing Datchet Road overbridge, utility diversion works, the demolition of the existing Datchet Road overbridge and the realignment of Datchet Road commencing at grid reference 497997E; 179140N and terminating at grid reference 498157E; 178357N.

In the administrative area of the Royal Borough of Windsor and Maidenhead

Work No. 20a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Recreation Ground overbridge commencing at grid reference 498117E; 178655N and terminating at grid reference 498210E; 178520N.

Work No. 20b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Recreation Ground overbridge commencing at grid reference 498182E; 178500N and terminating at grid reference 498089E; 178636N.

Work No. 20c – The demolition of the existing Recreation Ground overbridge over the M4 and construction of a new bridge over the M4, and the realignment of Recreation Ground Road commencing at grid reference 498022E; 178486N and terminating at grid reference 498268E; 178648N.

Work No. 21 – The extension of the water main subway under the M4 carriageway east of Recreation Ground Road to both north and south at the location shown on the works plans including diversion of the utilities passing through the subway and closure of the existing access manholes in the hard shoulders of the M4 motorway.

Work No. 22a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Riding Court Road overbridge commencing at grid reference 499018E; 177547N and terminating at grid reference 499168E; 177475N.

Work No. 22b – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Riding Court Road overbridge commencing at grid reference 499178E; 177434N and terminating at grid reference 499022E; 177505N.

Work No. 22c – The construction of a new bridge over the M4 to the west of the existing Riding Court Road overbridge, demolition of the existing Riding Court Road overbridge, the realignment of Riding Court Road commencing at grid reference 499071E; 177252N and terminating at grid reference 499250E; 177481N, modification of a private means of access to Riding Court at its junction with Riding Court Road.

Work No. 23a – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Ashley's Arch Culvert commencing at grid reference 499916E; 177412N and terminating at grid reference 500069E; 177455N.

Work No. 23b – The extension of Ashley's Arch Culvert to the north at the location shown on the works plans to accommodate Work No. 23a.

In the administrative areas of the Royal Borough of Windsor and Maidenhead and Slough Borough Council

Work No. 24a – The realignment of the M4 Junction 5 (Langley) eastbound off-slip commencing at grid reference 500685E; 177740N and terminating at grid reference 501031E; 177926N.

Work No. 24b – The realignment of the M4 Junction 5 (Langley) eastbound on-slip commencing at grid reference 501461E; 178086N and terminating at grid reference 501971E; 178168N.

Work No. 24c – The realignment of the M4 Junction 5 (Langley) westbound off-slip commencing at grid reference 501906E; 178130N and terminating at grid reference 501560E; 178047N.

Work No. 24d – The realignment of the M4 Junction 5 (Langley) westbound on-slip commencing at grid reference 501147E; 177901N and terminating at grid reference 500662E; 177696N.

Work No. 24e – The widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing M4 Junction 5 (Langley) commencing at grid reference 501091E; 177937N and terminating at grid reference 501448E; 178064N.

Work No. 24f – The widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing M4 Junction 5 (Langley) commencing at grid reference 501462E; 178027N and terminating at grid reference 501111E; 177903N.

Work No. 24g – The widening of Langley underbridge (West) to the north and south side of the existing Langley underbridge (West), at the location shown on the works plans, including widening of foundations, substructure and bridge deck to accommodate Work Nos. 24e and 24f.

Work No. 24h – The extension of Langley subway to both north and south at the location shown on the works plans to accommodate Work Nos. 24e and 24f.

Work No. 24i – The widening of Langley underbridge (East) to the north and south side of the existing Langley underbridge (East), at the location shown on the works plans, including widening of foundations, substructure and bridge deck to accommodate Work Nos. 24e and 24f.

In the administrative areas of Buckinghamshire County Council, South Bucks District Council and Slough Borough Council

Work No. 25 – The demolition of the existing Old Slade Lane overbridge over the M4 and construction of a new bridge over the M4 and the realignment of Old Slade Lane commencing at grid reference 503720E; 178176N and terminating at grid reference 503729E; 178491N, including construction of retaining walls.

In the administrative area of Slough Borough Council

Work No. 26a – The realignment of the M4 Junction 4b (M25) eastbound off-slip and widening of the eastbound carriageway of the M4 motorway on the north side at the location of the existing Old Slade Lane overbridge commencing at grid reference 503425E; 178213N and terminating at grid reference 504178E; 178422N.

Work No. 26b – The realignment of the M4 Junction 4b (M25) westbound on-slip and widening of the westbound carriageway of the M4 motorway on the south side at the location of the existing Old Slade Lane overbridge commencing at grid reference 504295E; 178295N and terminating at grid reference 503420E; 178181N.

In the administrative area of the London Borough of Hillingdon

Work No. 27a – The realignment of the M4 Junction 4b (M25) eastbound on-slip commencing at grid reference 505255E; 178385N and terminating at grid reference 505643E; 178384N and the construction of a sign-only cantilever gantry above the on-slip within the gantry siting locations shown as "Gantry Type 4" on the works plans, including gantry foundations gantry structure, signs, sign illumination, control cabinets and power cable connections.

Work No. 27b – The realignment of the M4 Junction 4b (M25) westbound off-slip commencing at grid reference 505816E; 178360N and terminating at grid reference 505270E; 178321N.

Work No. 28 – The widening of Sipson Road Subway to the south at the location shown on the works plans to accommodate Work No. 29d.

Work No. 29a – The realignment of the M4 Junction 4 (Heathrow) eastbound off-slip commencing at grid reference 506647E; 178535N and terminating at grid reference 507266E; 178591N.

Work No. 29b – The realignment of the M4 Junction 4 (Heathrow) eastbound on-slip commencing at grid reference 507862E; 178539N and terminating at grid reference 508509E; 178440N.

Work No. 29c – The realignment of the M4 Junction 4 (Heathrow) westbound off-slip commencing at grid reference 508250E; 178441N and terminating at grid reference 507651E; 178502N.

Work No. 29d – The realignment of the M4 Junction 4 (Heathrow) westbound on-slip commencing at grid reference 507455E; 177820N and terminating at grid reference 506556E; 178467N and such works including-

(a)the construction of one no. MS3 signal cantilever gantry above the M4 over the M4 Heathrow spur northbound carriageway within the gantry siting location shown as "Gantry Type 6" on the works plans including gantry foundations, gantry structure, signals, control cabinets, power and communication cable connections; and

(b)the construction of new signs and signals on 2 no. re-used portal gantries over the M4 Heathrow spur northbound carriageway within the gantry siting locations shown as "Re-used Gantry Type 7" on the works plans, including removal of existing signs and signals, refurbishment of gantry structure, signs, signals, sign illumination, control cabinets and power and communication cable connections.

Work No. 30a – The realignment of the M4 Junction 3 (Hayes) eastbound off-slip commencing at grid reference 509823E; 178312N and terminating at grid reference 510070E; 178294N.

Work No. 30b – The realignment of the M4 Junction 3 (Hayes) westbound on-slip commencing at grid reference 510126E; 178245N and terminating at grid reference 509520E; 178311N

and in connection with such works and to the extent that they do not otherwise form part of any such work, and whether or not shown on the plans referred to in the requirements including-

(a)the provision of up to 9 no. construction compounds in the areas shown on the works plans;

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

(c)ramps, means of access, footpaths, bridleways, cycle tracks, embankments, aprons, abutments, shafts, foundations, retaining walls, wing walls, bunds, embankments, swales, fencing, boundary treatments and highway lighting including the mounting of lighting columns on the rigid concrete barrier, subject to requirement 19;

(d)street works, including breaking up or opening a street, or any sewer, drain or tunnel under it; tunnelling or boring under a street; works to place or maintain apparatus in a street; works to alter the position of apparatus, including mains, sewers, drains and cables;

(e)the provision of thin surface course and carriageway markings;

(f)diversion of utilities apparatus, including gas and water pipelines and electric cables;

(g)earthworks, including the extension of earthworks;

(h)retaining structures;

(i)barriers;

(j)refurbishment works to any existing bridge or gantry;

(k)works to alter or remove road furniture;

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

(m)water supply works, foul drainage provision, surface water management systems, and culverting;

(n)landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

(o)the provision of environmental mitigation;

(p)works for the benefit or protection of land affected by the authorised development;

(q)the demolition of buildings and structures within the Order limits;

(r)site preparation works, site clearance (including fencing, vegetation removal, demolition of existing structures and the creation of alternative footpaths); earthworks (including soil stripping and storage, site levelling);

(s)works required for the strengthening, improvement, maintenance or reconstruction of any streets; and

(t)such other works, including contractors' compounds, working sites, storage areas and works of demolition, as may be necessary or expedient for the purposes of or in connection with the construction of the authorised development.

Article 3

SCHEDULE 2

PART 1REQUIREMENTS

Interpretation

1.  In this Schedule-

"CEMP" means the construction environmental management plan to be submitted and approved under requirement 8;

"EMP" means the environmental management plan to be submitted and approved under requirement 7;

"European protected species" has the same meaning as in regulations 40 (European protected species of animals) and 44 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2010(36); and

"HEMP" means the handover environmental management plan, being the CEMP to be developed towards the end of the construction of the authorised development which is to contain-

Time limits

2.  The authorised development must not commence later than the expiration of 5 years beginning with the date on which this Order comes into force.

Detailed design

3.  Except where the authorised development is carried out in accordance with the plans listed in requirement 4, no part of the authorised development is to commence until details of the layout, scale, siting, design, dimensions and external appearance of Works Nos. 7a, 8c, 9b, 10c, 11c, 12e, 13c, 14c, 17, 19c, 20c, 22c, 24g, 24i and 25, earthworks and retaining structures comprised in the authorised development so far as they do not accord with the development shown in the plans listed in requirement 6 have been submitted to and approved by the Secretary of State, following consultation with the relevant planning authority and any relevant statutory authority. The authorised development must be carried out in accordance with the details shown in the plans listed in requirement 6 or approved under this requirement.

Gantry design

4.  The gantries to be constructed described as Gantry Type 5 in Schedule 1 (authorised development) are to be designed in accordance with drawing 514451-MUH-ST-ZZ-DR-GN-301415 or drawing 514451-MUH-ST-ZZ-DR-GN-301416 of the engineering drawings and sections, in accordance with details to be submitted to and approved by the Secretary of State following consultation with the relevant planning authority.

Carriageway surfacing

5.-(1) Where any carriageway comprised in Work No. 1a and 1b, or any slip road, is to be resurfaced as part of the authorised development, TSCS is to be provided unless otherwise approved by the Secretary of State. Any material approved by the Secretary of State as low noise surfacing must have similar noise reduction properties as TSCS.

(2) Any subsequent resurfacing of any carriageway or slip road referred to in sub paragraph (1) must be carried out using low noise surfacing material with similar (or improved) noise reduction properties to the TSCS unless otherwise approved by the Secretary of State following consultation with the relevant planning authority.

Engineering drawings, sections and other information

6.-(1) The authorised development must be carried out in accordance with the approved plans submitted with the application (unless otherwise approved by the Secretary of State, following consultation with the relevant planning authority and provided that the altered development accords with the principles of the engineering and design report (Application Document Reference No. 7.3) and falls within the Order limits) as listed in Schedule 12 (engineering drawings, sections and other information).

(2) Where any alternative details are approved under this requirement or requirements 3 (detailed design) or 20 (amendments to approved details), those details are deemed to be substituted for the corresponding details in the approved plans as listed in Schedule 12.

Environmental Management Plan

7.-(1) No part of the authorised development is to commence until an EMP, substantially in accordance with the outline EMP (Application Document Reference No. 6.3, Appendix 4.2), has been submitted to and approved by the Secretary of State, following consultation with the relevant planning authority and the Environment Agency.

(2) All construction work must be carried out in accordance with the approved EMP unless otherwise approved by the Secretary of State, following consultation with the relevant planning authority and the Environment Agency.

Construction Environmental Management Plan

8.-(1) No part of the authorised development is to commence until a CEMP, substantially in accordance with the outline CEMP (Application Document Reference No. 6.3, Appendix 4.2A), annexed to the outline EMP (Application Document Reference No. 6.3, Appendix 4.2) has been submitted to and approved by the Secretary of State, following consultation with the Environment Agency and the relevant planning authority.

(2) The construction of the authorised development must be carried out in accordance with the CEMP.

(3) Upon completion of construction of the authorised development the CEMP must be converted into the HEMP.

(4) The authorised development must be operated and maintained in accordance with the HEMP.

Implementation and maintenance of landscaping

9.-(1) No part of the authorised development is to commence until a landscaping scheme and programme has been submitted to and approved by the Secretary of State following consultation with the relevant planning authority.

(2) The landscaping scheme must reflect the mitigation measures included in the environmental masterplan annexed to the engineering and design report (Application Document Reference No. 7.3) and set out details of all proposed hard and soft landscaping works, including-

(a)location, number, species (which must be native species), size and planting density of any proposed planting;

(b)cultivation, importing of materials and other operations to ensure plant establishment;

(c)details of existing trees to be retained, with measures for their protection during the construction period; and

(d)a programme, which may relate to any part of the authorised development, or the whole, for the implementation of the landscaping scheme.

(3) 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.

(4) The authorised development must be landscaped in accordance with the scheme and programme approved under sub-paragraph (1).

(5) Any tree or shrub planted as part of the landscaping scheme that, within a period of 5 years after planting, dies or becomes, in the opinion of the Secretary of State, seriously 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 gives consent to any variation.

Fencing

10.  Any permanent and temporary fencing and other means of enclosure for the authorised development must be constructed and installed in accordance with Highways England's Manual of Contract Documents for Highway Works, Volume 1 – Specification for Highway Works (consolidated edition, November 2005, amended as at May 2014 or as subsequently amended), except where any departures from that manual are agreed by the Secretary of State, following consultation with the relevant planning authority.

Ecological mitigation

11.  Ecological mitigation of the authorised development with respect to protected species, including the provision of any mammal underpasses or tunnels, set out in the environmental masterplan (Application Document Reference No. 7.4, Annex A) and the CEMP, must be provided in accordance with the principles of guidance in Highways England's Design Manual for Roads and Bridges, Volume 10, Section 4 (Volume 10, October 1994, amended as at May 2014 or as subsequently amended), as supported by additional guidance from the Institute of Ecology and Environmental Management, published ecological literature, and consultation with statutory and non-statutory nature conservation bodies, except where any departures from that guidance are agreed by the Secretary of State, following consultation with Natural England and the relevant planning authority.

Contaminated land and groundwater

12.-(1) No part of the authorised development is to commence until a geotechnical design report has been produced based on and including the results of ground investigation, which are to inform (where and to the extent necessary) a written scheme to deal with contaminated groundwater due to landfill (if any is identified within the report) and which has been submitted to and approved by the Secretary of State following consultation with the Environment Agency, the relevant water undertaker and the relevant planning authority.

(2) Any scheme to deal with contaminated groundwater produced in accordance with sub-paragraph (1) must be implemented as part of the authorised development.

(3) 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, the undertaker must cease construction of the authorised development in the vicinity of that contaminated land and must report it immediately to the Environment Agency, the relevant water undertaker, the relevant planning authority and the Secretary of State, and the undertaker must complete a risk assessment of the contamination.

(4) Where the Secretary of State determines that remediation 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 by the Secretary of State, following consultation with the Environment Agency, the relevant water undertaker and the relevant planning authority.

(5) No remedial work constituting a material operation (as defined in section 155 (when development begins) of the 2008 Act) in respect of contamination of any land, including groundwater, within the Order limits is to be carried out until the scheme for remediation has been approved under sub-paragraph (4).

(6) Remediation must be carried out in accordance with the scheme approved under sub-paragraph (4).

(7) In this requirement ‘relevant water undertaker' means the water undertaker within the meaning of the Water Industry Act 1991(37) for the land in question.

Protected species

13.-(1) No part of the authorised development is to commence until final pre-construction survey work for that part has been undertaken to establish whether European or nationally protected species are present on any of the land affected, or likely to be affected, by that part of the authorised development or in any of the trees and shrubs to be lopped or felled as part of the authorised development.

(2) Where a protected species is shown to be, or where there is a reasonable likelihood of it being, present, the relevant part of the authorised development must not begin until a scheme of protection and mitigation measures or translocation of the relevant species has been submitted to and approved by the Secretary of State, following consultation with Natural England.

(3) The relevant part of the authorised development must be carried out in accordance with the approved scheme, or with any amended scheme that may be subsequently approved by the Secretary of State, following consultation with Natural England, and under any necessary protected species licence.

(4) Monitoring of impacts on protected species and habitats prior to, during and after construction, together with the monitoring and management of mitigation measures, must be carried out as far as required to meet the protected species licence requirements.

(5) In the event that any protected species are found at any time when carrying out the authorised development which were not previously identified in the environmental statement-

(a)the finding must be reported immediately to Natural England; and

(b)no activities requiring a protected species licence are to continue until a scheme of protection and mitigation measures for the protected species has been submitted to, and approved by, Natural England and the Secretary of State.

Surface water drainage

14.-(1) No part of the authorised development is to commence until a surface and foul water drainage scheme has been submitted to and approved by the Secretary of State, following consultation with the relevant lead local flood authority and South East Water Limited. The surface and foul water drainage scheme must-

(a)include a survey of the existing drainage system in the Order land to identify areas affected by the works where repair or replacement of existing drainage infrastructure is required; and

(b)reflect the mitigation measures in the drainage strategy report (Application Document Reference No. 7.5) and include means of pollution control.

(2) The surface and foul water drainage system must be constructed in accordance with the approved surface and foul water drainage scheme.

Archaeological remains

15.-(1) Any archaeological remains not previously identified which are revealed when carrying out the authorised development must be investigated and recorded and reported to the Secretary of State, Historic England and the relevant planning authority by means of a technical report identifying the location for the housing of any finds.

(2) No construction operations are to take place within 10 metres of such remains for a period of 14 days from the date of such notification unless otherwise agreed by the Secretary of State, following consultation with Historic England and the relevant planning authority.

(3) If the Secretary of State is of the view that the archaeological remains require further investigation, no construction operations are to take place within 10 metres of the remains until provision has been made for the further investigation and recording of the remains in accordance with details first submitted to, and approved by, the Secretary of State, following consultation with Historic England and the relevant planning authority.

Written scheme of investigation

16.-(1) No part of construction compound 5 is to be constructed or used until a programme of archaeological work including a written scheme of investigation has been submitted to and approved by the relevant planning authority. The written scheme of investigation must include-

(a)a programme and methodology of site investigation and recording;

(b)a programme for post investigation assessment;

(c)provision for analysis of the site investigation recording;

(d)provision for publication and dissemination of the analysis and records of the site investigation;

(e)provision to be made for archive deposition of the analysis and records of the site investigation; and

(f)nomination of a competent person or organisation to undertake the work set out within the written scheme of investigation.

(2) Construction compound 5 is not to be constructed or used other than in accordance with the written scheme of investigation approved under sub-paragraph (1).

(3) The site investigation and post investigation assessment is to be completed in accordance with the programme set out in the written scheme of investigation approved under sub-paragraph (1).

Buildings at risk

17.  No part of the authorised development is to be carried out in the vicinity of any buildings assessed to be at risk in the environmental statement or in the opinion of the relevant planning authority without first notifying the relevant planning authority.

Construction traffic management

18.-(1) No part of the authorised development is to commence until a construction traffic management plan, detailing traffic management measures during construction of the authorised development and substantially in accordance with the outline construction traffic management plan annexed to the outline CEMP (Application Document Reference No. 6.3, Appendix 4.2A, Annex E), has been submitted to and approved by the Secretary of State, following consultation with the relevant planning authority.

(2) The authorised development must be constructed in accordance with the approved details.

Permanent lighting

19.-(1) No permanent lighting forming part of the authorised development is to be installed until a written lighting scheme has been submitted to and approved by the Secretary of State, following consultation with the relevant planning authority.

(2) The authorised development must be constructed in accordance with the approved scheme.

(3) Lighting installed as part of the authorised development must not be more than 1 metre higher than the existing lighting columns.

Amendments to approved details

20.  With respect to any requirement which requires the authorised development to be carried out in accordance with any details or scheme approved under this Schedule, the approved details or scheme are to be taken to include any amendments that may subsequently be approved.

Control of noise during construction of the scheme

21.-(1) No part of the authorised development is to commence until a written scheme for noise management during construction of the authorised development has been submitted to and approved by the Secretary of State, following consultation with the relevant planning authority.

(2) The scheme is to set out the particulars of-

(a)the reasonable noise management measures to be taken in relation to noise resulting from the construction of the scheduled works; and

(b)measures for monitoring noise levels during construction of the scheduled works to ensure compliance with the scheme and the effectiveness of the management measures.

(3) The scheduled works must be undertaken in accordance with the approved noise management scheme.

Acoustic barriers

22.-(1) No part of the authorised development is to commence until details of a scheme to install or replace acoustic barriers in the locations shown on the environmental masterplan (Application Document Reference No. 7.4, Annex A) contained within the environmental statement has been submitted to and approved by the Secretary of State, following consultation with the relevant planning authority.

(2) The acoustic barriers installed in accordance with the scheme approved in sub-paragraph (1) must-

(a)match adjacent retained acoustic barriers so far as possible; and

(b)be compliant with any engineering requirements governing the form of acoustic barriers which may be installed.

(3) Where the barriers as shown on the environmental masterplan are found not to be fit for purpose as acoustic barriers of equivalent standard to the requirements for acoustic barriers set out in the Specification for Highway Works CI.2504, or as amended, whether by reason of-

(a)their state of repair; or

(b)their original design,

the scheme referred to in sub-paragraph (1) is to provide for their removal and replacement with acoustic barriers consistent with the requirements for acoustic barriers set out in the Specification for Highway Works CI.2504, or as amended.

(4) The scheme approved under sub-paragraph (1) must be implemented before operation of the authorised development commences and maintained in accordance with the details of the approved scheme, unless the Secretary of State agrees, following consultation with the relevant planning authority, that any acoustic barrier comprised in the approved scheme no longer needs to be maintained.

Flood risk

23.-(1) No scheduled works within Flood Zone 3 as shown on annex H to the flood risk assessment are to commence until a detailed scheme of compensation works for the effects of the authorised development upon flood risk in Flood Zone 3 ("flood compensation scheme") has been submitted to and approved by the Secretary of State, following consultation with the Environment Agency and the relevant planning authority.

(2) The flood compensation scheme must ensure that compensation works-

(a)are carried out in accordance with the outline flood compensation scheme shown on drawing TR010019-2.3-v-20 sheets 1 to 13; or

(b)where alternate mitigation works or measures not detailed in the flood risk assessment are proposed, demonstrate that the works or measures are at least as effective as those set out in paragraph (a).

(3) The flood compensation scheme must ensure that compensation works provide sufficient compensation to ensure that the authorised development will not increase flood risk for all events up to and including the 1% annual exceedance probability plus a 20 per cent allowance for climate change.

(4) The flood compensation scheme must provide for phasing of the provision of flood risk compensation in accordance with any phasing of the construction of the authorised development.

(5) The authorised development and the flood compensation scheme must be implemented in accordance with the details approved under sub-paragraph (1).

(6) No part of the Order land situated in Flood Zone 3 plus a 20 per cent allowance for climate change is to be used for storage, except as shown on annex H to the flood risk assessment.

Biodiversity management strategy

24.-(1) No part of the authorised development is to commence until a written strategy of biodiversity management measures has been submitted to and approved by the Secretary of State following consultation with the Environment Agency, Natural England and the relevant planning authority.

(2) The biodiversity management strategy is to include-

(a)provision of otter ledges within culverts affected by the authorised development;

(b)provision of otter fencing at those locations shown on the environmental masterplan (Application Document Reference No. 7.4, Annex A);

(c)provision of bat boxes at appropriate locations within the Order limits together with arrangements for their monitoring and maintenance by local bat groups or others;

(d)the removal or management of invasive non-native species within the Order limits; and

(e)maximising the biodiversity potential of any soft landscaping to be provided as part of the authorised development through detailed design.

(3) The approved strategy and any measures under it must be implemented during construction and operation of any part of the authorised development.

Road restraint standard

25.  Any verge mounted road restraints to be provided as part of the authorised development must be constructed and installed in accordance with Highways England's Requirement for Road Restraint Systems, TD 19/06 (Design Manual for Roads and Bridges, August 2006, or as amended) except where any departures from that standard are agreed by the Professional Technical Solutions directorate of Highways England.

Air quality monitoring and management

26.-(1) No part of the authorised development is to commence until the undertaker has prepared a monitoring scheme for Nitrogen Dioxide ("NO₂"). The monitoring scheme must-

(a)be prepared in consultation with the relevant local authorities ("the air quality authorities") for those Air Quality Management Areas in which the authorised development is located where both a change in air quality in excess of 0.4μg/m³ is predicted in the environmental statement, and where annual mean concentrations are above the national air quality objective value;

(b)set out the location and specification for operation and data provision for any monitors to be installed in line with guidance on air quality monitoring issued by the Department for Environment, Food and Rural Affairs from time to time (but the duplication of existing monitoring is not required where its data is available); and

(c)provide for the monitors to-

(i)be installed during the construction period of the authorised development;

(ii)be operated from the opening of the authorised development for public use; and

(iii)remain in place for a period of 3 years or until the monitoring shows a continuous period of 12 months in which there is no exceedance of the annual national air quality objective for the NO₂ monitored, whichever is the longer ("the monitoring period").

(2) During the monitoring period, the undertaker must make all data obtained from the monitors available to the air quality authorities.

(3) The monitoring data must be accompanied by a review undertaken by a firm of air quality experts appointed by the undertaker in consultation with the air quality authorities and submitted at 12-monthly intervals during the monitoring period. If any such review demonstrates in the opinion of the appointed firm of experts that the authorised development has materially worsened air quality where there are exceedances of national air quality objectives, the undertaker must-

(a)consult with the air quality authorities on a scheme of mitigation (including a programme for its implementation) within 6 months of the data review, taking into consideration any local air quality action plans adopted by each air quality authority as part of its local air quality management duties;

(b)submit the scheme of mitigation to the Secretary of State for approval within 1 month of concluding its consultation with the air quality authorities; and

(c)implement the scheme of mitigation in accordance with the programme contained in the scheme of mitigation following approval by the Secretary of State.

(4) Before considering whether to approve the scheme of mitigation, the Secretary of State must consult the air quality authorities and take into consideration any local air quality action plans adopted by an air quality authority as part of its local air quality management duties.

PART 2PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under requirement

27.-(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 the Order, the Secretary of State must give notice to the undertaker of its 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 2; or

(c)such longer period as may be agreed between the parties.

(2) Subject to sub-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; and

(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 statement that the subject matter of the application is likely to give rise to any materially new or materially worse environmental effects in comparison with those reported in the environmental statement,

then the application is taken to have been refused by the Secretary of State at the end of that period.

(4) With respect to any requirement that requires details to be submitted to the Secretary of State for approval under this Schedule, the details must be accompanied by a statement as to whether the subject matter of the application is likely to give rise to any new or materially worse environmental effects in comparison with those reported in the environmental statement.

Further information

28.-(1) In relation to any part of an application made under this Schedule, the Secretary of State may 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 27 and in this paragraph.

Register of requirements

29.-(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.

Details of consultation

30.-(1) With respect to any requirement which requires details to be submitted to the Secretary of State for approval under this Schedule, the details submitted must be accompanied by a summary report setting out the consultation undertaken by the undertaker to inform the details submitted and the undertaker's response to that consultation.

(2) At the time of submission to the Secretary of State for approval, the undertaker must provide a copy of the summary report referred to under sub-paragraph (1) to the relevant consultees referred to in the requirement in relation to which approval is being sought from the Secretary of State.

(3) The undertaker must ensure that any consultation responses are reflected in the details submitted to the Secretary of State for approval under this Schedule, but only where it is appropriate, reasonable and feasible to do so, taking into account considerations including, but not limited to, cost and engineering practicality.

(4) Where the consultation responses are not reflected in the details submitted to the Secretary of State for approval, the undertaker must state in the summary report referred to under sub-paragraph (1), the reasons why the consultation responses have not been reflected in the submitted details.

Article 13

SCHEDULE 3PERMANENT STOPPING UP OF STREETS FOR WHICH A SUBSITUTE IS TO BE PROVIDED

Article 14

SCHEDULE 4TEMPORARY STOPPING UP OF STREETS

Article 22(2)

SCHEDULE 5LAND IN WHICH ONLY NEW RIGHTS ETC. MAY BE ACQUIRED

Article 22(3)

SCHEDULE 6MODIFICATION 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 as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.-(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973(38) has effect subject to the modifications set out in sub-paragraphs (2) and (3).

(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 4-

(a)for "land is acquired or taken" substitute "a right over land is purchased"; and

(b)for "acquired or taken from him" substitute "over which the right is exercisable".

(3) For section 58(1)(39) (determination of material detriment where part of house etc. proposed for compulsory acquisition), as it applies to determinations under section 8 (other provisions as to divided land) of the 1965 Act as substituted by paragraph 5, substitute-

"(1) In determining under section 8(1) or 34(2) of the Compulsory Purchase Act 1965, or section 166(2) of the Town and Country Planning Act 1990 whether-

(a)a right over land consisting of a house, building or manufactory can be taken without material detriment or damage to the house, building or manufactory; or

(b)a right over affecting land consisting of a park or garden belonging to a house can be taken without seriously affecting the amenity or convenience of the house,

the Upper Tribunal must take into account not only the effect of the acquisition of the right but also the use to be made of the right proposed to be acquired, and, in a case where the right is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use to be made of the other land."

Application of the 1965 Act

3.-(1) The 1965 Act has effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are 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

(b)the land over which the right is or is to be exercisable.

(2) Without limitation on the scope of sub-paragraph (1), Part 1 (compulsory purchase under the Acquisition of Land Act of 1946) of the 1965 Act applies in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

4.  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 is to be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right 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."

5.  For section 8 (provisions as to divided land) of the 1965 Act substitute-

"8.-(1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house ("the relevant land")-

(a)a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Upper Tribunal ("the tribunal"); and

(b)before the tribunal has determined that question the tribunal is satisfied that the person has an interest in the whole of the relevant land and is able and willing to sell that land and-

(i)where that land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land; or

(ii)where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs,

the M4 Motorway (Junctions 3 to 12) (Smart Motorway) Development Consent Order 2016(40) ("the Order"), in relation to that person, ceases to authorise the purchase of the right and is deemed to authorise the purchase of that person's interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice is deemed to have been served in respect of that interest on such date as the tribunal directs.

(2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section is to be determined by the tribunal.

(3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of 6 weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of the authority to withdraw the notice."

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

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

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

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

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

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 is vested absolutely in the acquiring authority.

7.  Section 11(41) (powers of entry) of the 1965 Act is modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right (which is deemed for this purpose to have been created on the date of service of the notice); and sections 12(42) (penalty for unauthorised entry) and 13(43) (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

8.  Section 20(44) (protection for interests of 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 in question.

9.  Section 22 (interests omitted from purchase) of the 1965 Act is 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.

Article 28

SCHEDULE 7LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Article 36

SCHEDULE 8TREES SUBJECT TO TREE PRESERVATION ORDERS

Article 39

SCHEDULE 9PROTECTION OF INTERESTS

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

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

2.  In this Part of this Schedule-

"alternative apparatus" means alternative apparatus adequate to enable the protected person in question to fulfil its statutory functions in a manner no less efficient than previously;

"apparatus" means-

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

"functions" includes powers and duties;

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

"oil apparatus" means any pipe-line, apparatus and works as described in section 65(2) (meaning of "pipe-line") of the Pipe-lines Act 1962(49) and all protective wrappings, sleeves and slabs, together with ancillary cables and markers; and such legal interest, and benefit of property rights and covenants as are vested in the Oil and Pipelines Agency in respect of such 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;

"protected person" means-

for the area of the authorised development, and in relation to any apparatus, means the 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 protected person 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 13 (permanent stopping up of streets), any protected person 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 protected person legal easements reasonably satisfactory to the protected person in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the protected person 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 14 (temporary stopping up of streets), a protected person 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 18 (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 over which access to any apparatus is enjoyed or requires that the protected person's apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a protected person to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the protected person 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 protected person in question 56 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 the protected person 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 protected person 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 protected person in question and the undertaker or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

(5) The protected person in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42 (arbitration), and after the grant to the protected person 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 protected person in question that the undertaker intends 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 protected person, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the protected person.

(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-

(a)300 millimetres of apparatus other than oil apparatus; and

(b)3000 millimetres of oil apparatus.

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 protected person 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 protected person in question or in default of agreement settled by arbitration in accordance with article 42 (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 the protected person 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 protected person 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 protected person 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 protected person for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the protected person is entitled to watch and inspect the execution of those works.

(3) Any requirements made by a protected person 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 protected person 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 protected person 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 (2) 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 protected person all expenses reasonably incurred by that protected person 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), including any costs reasonably incurred in connection with the acquisition of rights under paragraph 7(3), and in watching and inspecting the execution of works under paragraph 9(2) and in making reasonable requirements under paragraph 9(3).

(2) The value of any apparatus removed under the provisions of this Part of this 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; 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 42 (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 protected person in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; 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 protected person 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 protected person 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 the authorised development or any such works referred to in paragraphs 5, 7(2), or 9(1), 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 protected person, or there is any interruption in any service provided or of any access to any apparatus, or in the supply of any goods, by any protected person, the undertaker must-

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

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

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

(2) The fact that any act or thing may have been done by a protected person on behalf of the undertaker or in accordance with a plan approved by a protected person or in accordance with any requirement of a protected person or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

(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 protected person, its officers, servants, contractors or agents.

(4) A protected person 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.

(5) Any difference arising between the undertaker and the protected person under this Part of this Schedule must be referred to and settled by arbitration under article 42 (arbitration).

Co-operation

12.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or a protected person requires the removal of apparatus under paragraph 7(2) or a protected person 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 protected person's undertaking and each protected person 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 protected person in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 2FOR 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(50);

"conduit system" has the same meaning as in the electronic communications code and references to providing a conduit system are to be construed in accordance with paragraph 1(3A)(51) (interpretation of code) of that code;

"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(52);

"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; and

"operator" means the operator of an electronic communications code network.

16.  The exercise of the powers conferred by article 30 (statutory undertakers) is subject to paragraph 23 of Schedule 2 (undertaker's works) to the Telecommunication Act 1984(53).

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 who, if such consent is withheld, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

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

18.  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.

19.  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 already laid or erected in land belonging to the undertaker on the date on which this Order is made.

PART 3FOR THE PROTECTION OF RAILWAY INTERESTS

20.  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 paragraph 34, any other person on whom rights or obligations are conferred by that paragraph.

21.  In this Part of this 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 undertaker in exercise of powers under section 8 (licences) of the Railways Act 1993(54);

"Network Rail" means Network Rail Infrastructure Limited (company number 02904587, whose registered office is at 1 Eversholt Street, London NW1 2DN) and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes and for the purpose of this definition "associated company" means any company which is (within the meaning of section 1159 (meaning of "subsidiary" etc.) of the Companies Act 2006(55)) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

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

"protective works" means any works specified by the engineer under paragraph 24;

"railway operational procedures" means procedures specified under any access agreement (as defined in the Railways Act 1993(56)) or station lease;

"railway property" means any railway belonging to Network Rail and-

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

22.-(1) Where under this Part of this Schedule Network Rail is required to give its consent, agreement or approval in respect of any matter, that consent, agreement or approval is subject to the condition that 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 or rights over 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 under this Order.

23.-(1) The undertaker must not exercise the powers conferred by articles 19 (authority to survey and investigate land), 20 (compulsory acquisition of land), 22 (compulsory acquisition of rights), 23 (private rights over land), 25 (acquisition of subsoil or air-space only), 27 (rights under or over streets), 28 (temporary use of land for carrying out the authorised development), 29 (temporary use of land for maintaining the authorised development), 30 (statutory undertakers), 35 (felling or lopping of trees) or the powers conferred by section 11(3) (powers of entry) of the 1965 Act or by section 203 (power to override easements and rights) of the Housing and Planning Act 2016(57) 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 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 (extinguishment of rights of telecommunications code system operators: preliminary notices) of the 1990 Act, or article 30 (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 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 or agreement under this paragraph, such consent or agreement must not be unreasonably withheld but may be given subject to reasonable conditions.

24.-(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 arbitration under article 42 (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 disapproval of those plans and the grounds of disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 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 approval or disapproval, the engineer is 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 with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer's 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 with all reasonable dispatch and the undertaker must not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer's reasonable satisfaction.

25.-(1) Any specified work and any protective works to be constructed by virtue of paragraph 24(4) must, when commenced, be constructed-

(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 24;

(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 on it and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work or a protective work, the undertaker must, regardless of any such approval, make good such damage and must pay to 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 the undertaker's employees, contractors or agents.

26.-(1) The undertaker must-

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

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

27.  Network Rail must at all reasonable times afford reasonable facilities to the undertaker and the undertaker's 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 the undertaker may reasonably require with regard to such works or the method of constructing them.

28.-(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work or a protective work, or during a period of 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 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 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 protective work is to be constructed, Network Rail must assume construction of that part of the specified work or protective work and the undertaker must, regardless of any such approval of a specified work or protective work under paragraph 24(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) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be set off against any sum payable by the undertaker to Network Rail under this paragraph.

(4) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 29(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

29.  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 paragraph 24(3) or in constructing any protective works under the provisions of paragraph 24(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, signallers, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work or a protective work;

(d)in respect of any special traffic working resulting from any speed restrictions which may in the 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.

30.-(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;

"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 paragraph 24(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 must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 24(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 under sub-paragraph (a); and

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

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to 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 may be selected at the reasonable discretion of Network Rail, and in relation to such modifications paragraph 24(1) has effect subject to this sub-paragraph.

(6) If at any time prior to the completion of the authorised development and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the authorised development causes EMI then the undertaker must immediately upon receipt of notification by 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) 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 under 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; and

(b)any modifications to Network Rail's apparatus approved under those sub-paragraphs must be carried out and completed by the undertaker in accordance with paragraph 25.

(9) To the extent that it would not otherwise do so, paragraph 34(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 paragraph 29(a) any modifications to Network Rail's apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article 42 (arbitration) to a single arbitrator to be agreed between the parties is to be read as a reference to an arbitrator being a member of the Institution of Engineering and Technology to be agreed.

31.  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 notice to the undertaker informing it that the state of maintenance of any part of the specified work or protective work appears to be such as adversely affects the operation of railway property, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work or protective work in such state of maintenance as to not adversely affect railway property.

32.  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 the undertaker has first consulted Network Rail and the undertaker 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.

33.  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 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.

34.-(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 of it; or

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

and the undertaker must indemnify and keep indemnified 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 will 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 notice of any such claim or demand and no settlement or compromise of such a claim or demand is to be made without the prior written consent of the undertaker.

(3) The sums payable by the undertaker under sub-paragraph (1) may include a sum equivalent to the relevant costs.

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

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

(b)the existence of that agreement and the extent of Network Rail's liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the undertaker,

but not otherwise.

(5) 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.

(6) 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 under sub-paragraph (5).

(7) 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 sub-paragraph (1); and

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

35.  Network Rail must, on receipt of a request from the undertaker, at a frequency to be agreed between the undertaker and Network Rail, provide the undertaker free of charge with written estimates of the costs, charges, expenses, future cost forecasts and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 34) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made under this Part of this Schedule (including any claim relating to those relevant costs).

36.  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.

37.  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 land plans and described in the book of reference;

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

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

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

39.  The undertaker must give written notice to Network Rail where any application is required and is proposed to be made for the Secretary of State's consent under article 8 (consent to transfer benefit of the 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 decision-maker to whom the application is to be made.

40.  The undertaker must no later than 28 days from the date that the documents referred to in article 40(1) (certification of plans, etc.) are submitted to and certified by the Secretary of State in accordance with article 40, provide a set of those documents to Network Rail in the form of a computer disc with read only memory.

PART 4FOR THE PROTECTION OF NATIONAL GRID

Application

41.  For the protection of National Grid as referred to in this Part of this Schedule the following provisions will, unless otherwise agreed in writing between the undertaker and National Grid, have effect.

Interpretation

42.  In this Part of this Schedule-

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

"apparatus" means-

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 "authorised development" in article 2 (interpretation) 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 Part of this Schedule;

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

"functions" includes powers and duties;

"ground mitigation scheme" means a scheme approved by National 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, is to require the undertaker to submit for National Grid's approval a ground mitigation scheme;

"ground subsidence event" means any ground subsidence identified by the monitoring activities set out in the ground monitoring scheme that has exceeded the level described in the ground monitoring scheme as requiring a ground mitigation scheme;

"in" in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over, across, along or upon such land;

"maintain" and "maintenance" is to include the ability and right to do any of the following in relation to any apparatus or alternative apparatus of the National Grid including construct, use, repair, alter, inspect, renew or remove the apparatus;

"National Grid" means National Grid Electricity Transmission Plc, (company number 02366977), and National Grid Gas Plc, (company number 02006000), both companies registered at 1-3 Strand, London WC2N 5EH;

"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-

43.  Except for paragraphs 44 (apparatus of undertakers in stopped up streets), 49 (retained apparatus: protection gas undertakers), 50 (retained apparatus: protection electricity undertakers), 51 (expenses) and 52 (indemnity) 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 Part 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

44.-(1) Without limitation on the scope of any other protection afforded to National Grid elsewhere in the Order, where any street is stopped up under article 13 (permanent stopping up of streets), if National Grid has any apparatus in the street or accessed via that street National Grid 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 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 or highway.

(2) Regardless of the temporary stopping up or diversion of any highway under the powers of article 14 (temporary stopping up of streets), National Grid 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

45.-(1) The undertaker, in the case of the powers conferred by article 18 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus without the written consent of National Grid and, if by reason of the exercise of those powers any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of National Grid or any interruption in the supply of electricity or gas, as the case may be, by National Grid is caused, the undertaker must bear and pay on demand the cost reasonably incurred by National Grid in making good such damage or restoring the supply, and, subject to sub-paragraph (2), must-

(a)pay compensation to National Grid for any loss sustained by it; and

(b)indemnify National Grid against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by National Grid, by reason of any such damage or interruption.

(2) Nothing in this paragraph imposes any liability on the undertaker with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of National Grid or its contractors or workmen; and National Grid will give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise of such a claim is to be made by National Grid, except in respect of any payment required under a statutory compensation scheme, without first consulting the undertaker and giving the undertaker an opportunity to make representations as to the claim or demand.

Acquisition of land

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

(2) As a condition of 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 are 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 affects 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 is 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 works.

(3) 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 Part of this Schedule prevail.

(4) No agreement or consent granted by National Grid under any other provision of this Part of this Schedule constitutes agreement under sub-paragraph (1).

Removal of apparatus

47.-(1) If, in the exercise of the agreement reached in accordance with paragraph 46 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of National Grid to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed, and is in operation to the reasonable satisfaction of National Grid in question in accordance with sub-paragraphs (2) to (5).

(2) If, for the purpose of executing any works in, on, under or over any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to National Grid 56 days' advance written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order National Grid reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to National Grid to its satisfaction (taking into account paragraph 48(1) below) the necessary facilities and rights-

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

(b)subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, National 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 except that this obligation is not to 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-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.

Facilities and rights for alternative apparatus

48.-(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 and agreed with National Grid 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 National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject in the matter must be referred to arbitration in accordance with paragraph 56 of this Part of this Schedule and the arbitrator is to 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 for gas undertakers

49.-(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 works to which sub-paragraphs (1) and (2) apply 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-paragraph (5) or (7); and,

(b)must not be unreasonably withheld.

(5) In relation to any work to which sub-paragraphs (1) and (2) 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 or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (9), 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-paragraph (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 is entitled to watch and inspect the execution of those works.

(7) Where 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 under this paragraph, must be carried out to National Grid's satisfaction prior to the commencement of any authorised works (or any relevant part of them) for which protective works are required; and National Grid must give 56 days' notice of such protective works from the date of submission of a plan under this paragraph (except in an emergency).

(8) If National Grid in accordance with sub-paragraph (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, paragraphs 41 to 43 and 46 to 48 apply as if the removal of the apparatus had been required by the undertaker under paragraph 47(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 authorised 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.

(10) The undertaker is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must-

(a)comply with sub-paragraphs (5), (6) and (7) in so far as is reasonably practicable in the circumstances; and

(b)comply with sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under the Order National Grid must comply with National Grid's policies for safe working in proximity to gas apparatus "Specification for safe working in the vicinity of National Grid, High pressure Gas pipelines and associated installation requirements for third parties T/SP/SSW22" and HSE's "HS(~G)47 Avoiding Danger from underground services".

(12) As soon as reasonably practicable after any ground subsidence event attributable to the authorised development the undertaker must implement an appropriate ground mitigation scheme except that National Grid retains the right to carry out any further necessary protective works for the safeguarding of its apparatus and can recover any such costs in line with paragraph 51.

Retained apparatus: protection for electricity undertakers

50.-(1) Not less than 56 days before the commencement of any authorised works that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 47(2) or otherwise, 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-

(a)15 metres(58) measured in any direction of any apparatus; or

(b)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-

(i)the exact position of the works;

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

(iii)the manner of their construction or renewal including details of excavation, positioning of plant;

(iv)the position of all apparatus;

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

(vi)any intended maintenance regimes.

(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)(i) to (2)(vi), include a method statement describing-

(a)details of any cable trench design including route, dimensions, clearance to pylon foundations;

(b)how pylon foundations will not be affected prior to, during and post construction;

(c)details of load bearing capacities of trenches;

(d)details of 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 the cable route;

(f)written details of the operations and maintenance regime for the cable, including frequency and method of access;

(g)assessment of earth rise potential if reasonably required by National Grid's engineers; and

(h)how trench bearing capacity is to be designed to 26 tonnes to take the weight of overhead line construction traffic.

(4) The undertaker must not commence any works to which sub-paragraph (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-paragraph (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-paragraph (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 or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(7) Works to which this paragraph applies must only be executed in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub-paragraph (10), 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 is entitled to watch and inspect the execution of those works.

(8) Where 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 under this paragraph, must be carried out to National Grid's satisfaction prior to the commencement of any authorised works (or any relevant part of them) for which protective works are required and National Grid must give 56 days' notice of such protective works from the date of submission of a plan under this paragraph (except in an emergency).

(9) If National Grid in accordance with sub-paragraph (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, paragraphs 41 to 43 and 46 to 48 apply as if the removal of the apparatus had been required by the undertaker under paragraph 47(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 authorised 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 is not required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it must give to National Grid notice as soon as is reasonably practicable and a plan of those works and must-

(a)comply with sub-paragraphs (6), (7) and (8) in so far as is reasonably practicable in the circumstances; and

(b)comply with sub-paragraph (12) at all times.

(12) At all times when carrying out any works authorised under the Order, the undertaker must comply with National Grid's policies for development near overhead lines EN43-8 and HSE's guidance note 6 "Avoidance of Danger from Overhead Lines".

Expenses

51.-(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid on demand all charges, costs and expenses reasonably anticipated or 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 as are referred to in this Part of this Schedule 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 paragraph 47(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;

(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; and

(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) 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 will 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; 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 42 (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 except where 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 are to 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 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 National Grid 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 National Grid any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, must be reduced by the amount which represents that benefit.

Indemnity

52.-(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 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 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 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 must-

(a)bear and pay on demand the cost reasonably 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 does not (unless sub-paragraph (3) applies), excuse the undertaker from liability under the provisions of 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 professional 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; and

(b)any authorised works or any other works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of the undertaker with the benefit of the Order in accordance with section 156 of the 2008 Act or article 8 (consent to transfer benefit of the Order) subject to the condition that once such works become apparatus ("new apparatus"), any authorised works yet to be executed and not falling within this sub-section are to be subject to the full terms of this Part of this Schedule including this paragraph.

(4) National Grid must give the undertaker reasonable notice of any such third party claim or demand and no settlement or compromise, unless payment is required in connection with a statutory compensation scheme, is to be made without first consulting the undertaker and considering their representations.

Enactments and agreements

53.  Except to the extent provided for to the contrary elsewhere in this Part of this Schedule or by agreement in writing between National Grid 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 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

54.-(1) Where in consequence of the proposed construction of any of the authorised works, the undertaker or National Grid requires the removal of apparatus under paragraph 47(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 49 or 50, 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 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 National Grid's consent, agreement or approval is required in relation to plans, documents or other information submitted by the undertaker or the taking of action by the undertaker, it must not be unreasonably withheld or delayed.

Access

55.  If in consequence of the agreement reached in accordance with paragraph 46(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

56.  Except for differences or disputes arising under paragraph 47(2), 47(4), 48(1), 49, 50 and 52(4) 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 article 42 (arbitration).

PART 5FOR THE PROTECTION OF UNITED KINGDOM OIL PIPELINES LIMITED AND WEST LONDON PIPELINE AND STORAGE LIMITED

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

58.  In this Part of this Schedule-

"alternative apparatus" means alternative apparatus adequate to enable the protected person in question to fulfil its functions in relation to transporting oil, gas and fuel 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;

"oil apparatus" means any pipe-line, apparatus and works as described in section 65(2) (meaning of "pipe-line") of the Pipe-lines Act 1962(62) and all protective wrappings, sleeves and slabs, together with ancillary cables, protection equipment and markers; and such legal interest, and benefit of property rights and covenants as are vested in United Kingdom Oil Pipelines Limited or West London Pipeline and Storage Limited in respect of such 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;

"protected person" means-

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

On street apparatus

59.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the protected person are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Apparatus in stopped up streets

60.-(1) Where any street is stopped up under article 13 (permanent stopping up of streets), any protected person 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 protected person legal easements reasonably satisfactory to the protected person in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the protected person to require the removal of that apparatus under paragraph 63 or the power of the undertaker to carry out works under paragraph 65.

(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 14 (temporary stopping up of streets), a protected person 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

61.  The undertaker, in the case of the powers conferred by article 18 (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

62.  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

63.-(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the protected person's apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a protected person to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the protected person 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 protected person in question 56 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 the protected person 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 protected person must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use all reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

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

(5) The protected person in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42 (arbitration), and after the grant to the protected person 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 protected person in question that the undertaker intends 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 protected person, can if reasonable in the circumstances be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the protected person.

(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-

(a)300 millimetres of apparatus other than oil, gas or fuel apparatus; and

(b)3000 millimetres of oil, gas or other fuel apparatus.

Facilities and rights for alternative apparatus

64.-(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a protected person 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 protected person both acting reasonably in question or in default of agreement settled by arbitration in accordance with article 42 (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;

(b)give effect to all reasonable requirements of the protected person for ensuring the safety and efficient operation of the relevant apparatus and alternative apparatus; and

(c)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 the protected person 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 protected person as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

65.-(1) Not less than 56 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 63(2), the undertaker must submit to the protected person 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 protected person for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the protected person is entitled to watch and inspect the execution of those works and they must be carried out to the reasonable satisfaction of the protected person.

(3) Any requirements made by a protected person 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 protected person 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 57 to 59 and 62 to 64 apply as if the removal of the apparatus had been required by the undertaker under paragraph 63(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 56 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 protected person 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 (1) in so far as is reasonably practicable in the circumstances.

Expenses and costs

66.-(1) Subject to the following provisions of this paragraph, the undertaker must repay to a protected person all expenses reasonably incurred by that protected person 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 63(2) or 63(4), including legal and professional costs and any costs reasonably incurred in connection with the acquisition of rights under paragraph 63(3), and in watching and inspecting the execution of works under paragraph 65(2) and in making reasonable requirements under paragraph 65(3).

(2) The value of any apparatus removed under the provisions of this Part of this 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; 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 42 (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 protected person in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

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

67.-(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of the authorised development or any such works referred to in paragraphs 61, 63(2), or 65(1), 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 protected person, or there is any interruption in any service provided or of any access to any apparatus, or in the supply of any goods, by any protected person, the undertaker must-

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

(b)make reasonable compensation to that protected person for any other expenses, loss, damages, penalty or costs incurred by the protected person, by reason or in consequence of any such damage or interruption; and

(c)make reasonable compensation to that protected person in respect of any claim or demand made by a third party in respect of any damage by reason or in consequence of the construction of the authorised development or any such works referred to in paragraphs 61, 63(2), or 65(1).

(2) The fact that any act or thing may have been done by a protected person on behalf of the undertaker or in accordance with a plan approved by a protected person or in accordance with any requirement of a protected person or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

(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 protected person, its officers, servants, contractors or agents.

(4) A protected person 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.

Co-operation

68.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or a protected person requires the removal of apparatus under paragraph 63(2) or a protected person makes requirements for the protection or alteration of apparatus under paragraph 65, 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 protected person's undertaking and each protected person must use its best endeavours to co-operate with the undertaker for that purpose.

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

PART 6FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

70.-(1) The following provisions apply for the protection of the Agency unless otherwise agreed in writing between the undertaker and the Agency.

(2) In this Part of this Schedule-

"the Agency" means the Environment Agency;

"emergency" means a situation which-

"Flood Protection Work" means work to or creation of any watercourse, any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment, outfall or other structure, or any appliance, constructed or used for land drainage or flood defence; and

"relevant navigation" has the same meaning as in article 16 (powers in relation to relevant navigations or watercourses).

71.-(1) Where, in the exercise of the powers conferred by this Order, the undertaker proposes to interfere with or obstruct access by the Agency to a relevant navigation or other main river, it must give the Agency 56 days' written notice of that requirement.

(2) .Except in cases of emergency where the undertaker interferes with or obstructs access by the Agency to a relevant navigation or other main river and it is not possible for the undertaker to give the Agency the notice required under sub-paragraph (1), a suitable alternative access must be provided prior to and for the duration of any such interference.

72.  If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest of the Agency in any land or proposes to interfere with, or remove, any of the Agency's apparatus, it must give the Agency 56 days' written notice before any such interest is acquired or any apparatus is interfered with or removed.

73.  The undertaker must maintain, inspect and retain any Flood Protection Work comprised in or affected by the authorised development in accordance with a retention, inspection and maintenance plan to be prepared by the undertaker as part of the flood compensation scheme to be approved under requirement 23 in Part 1 (requirements) of Schedule 2.

74.  The undertaker must allow the Agency reasonable access to any Flood Protection Work comprised in or affected by the authorised development at all reasonable times for the purposes of ascertaining whether the undertaker is complying with the provisions of paragraph 73.

75.-(1) Where maintenance of any Flood Protection Work specified in the approved retention, inspection and maintenance plan is not carried out to the reasonable satisfaction of the Agency, the Agency may by notice require the undertaker to carry out the maintenance in question to such extent as the Agency reasonably requires.

(2) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any Flood Protection Work is served under sub-paragraph (1) the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.

(3) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (1), the Agency must not, except in a case of urgency, exercise the powers of sub-paragraph (2) until the dispute has been finally determined.

76.  If by reason of the construction of the authorised development or of the failure of any such works the efficiency of any Flood Protection Work is impaired, or any such Flood Protection Work is otherwise damaged, so as to require remedial action, such impairment or damage must be made good by the undertaker to the reasonable satisfaction of the Agency and if the undertaker fails to do so, the Agency may make good the same and recover the expenditure reasonably incurred by it in doing so from the undertaker.

77.  The undertaker must indemnify the Agency in respect of all costs, charges and expenses which it may reasonably incur or which it may sustain-

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

(b)in the inspection of the construction of any Flood Protection Work required by the Agency under this Part of this Schedule.

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

79.  Any dispute arising between the undertaker and the Agency under this Part of this Schedule is to be determined in accordance with article 42 (arbitration) of the Order.

PART 7FOR THE PROTECTION OF THAMES WATER

Access to Slough Sewage Treatment Works

80.-(1) Except where it has complied with sub-paragraph (2), the undertaker must not in the exercise of the powers conferred by this Order unreasonably prevent Thames Water's access via Wood Lane to the Slough Sewage Treatment Works.

(2) Not less than 56 days prior to undertaking any works in connection with Work No. 14c (including traffic management measures, diversions, road closures and stopping up) that would affect Thames Water's access the undertaker must submit to Thames Water details of the proposed location and duration of those works and must comply with its reasonable requirements for ensuring its continued access to the Slough Sewage Treatment Works.

Iver South Sludge Dewatering Centre

81.  The undertaker must not in the exercise of the powers conferred by this Order do any works to the security fence to the Iver South Sludge Dewatering Centre.

82.-(1) The undertaker must not in the exercise of the powers conferred by this Order unreasonably prevent Thames Water's access over plots 26-11 and 26-12 shown on the land plans and listed in the book of reference.

(2) Not less than 56 days prior to undertaking any works in connection with Work No. 25 (including traffic management measures, diversions, road closures and stopping up) that would affect Thames Water's access over plots 26-11 and 26-12 the undertaker must submit to Thames Water details of the proposed location and duration of those works and must comply with its reasonable requirements for ensuring its continued access over plots 26-11 and 26-12.

PART 8FOR THE PROTECTION OF SOUTH EAST WATER

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

84.  In this Part of this Schedule-

"alternative apparatus" means alternative apparatus adequate to enable the protected person in question to fulfil its statutory functions in a manner no less efficient than previously;

"apparatus" means mains, pipes, well, boreholes, tanks, service reservoirs, pumping stations (and any accessories to those items) or other apparatus, structure or treatment works belonging to or maintained by that undertaker for the purposes of water supply;

"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;

"protected person" means South East Water Limited, (company number 02679874), whose registered office is at Rocfort Road, Snodland, Kent, ME6 5AH, for the area of the authorised development, and in relation to any apparatus, means the protected person to whom it belongs or by whom it is maintained.

On street apparatus

85.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the protected person are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Apparatus in stopped up streets

86.-(1) Where any street is stopped up under article 13 (permanent stopping up of streets), any protected person 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 protected person legal easements reasonably satisfactory to the protected person in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the protected person to require the removal of that apparatus under paragraph 89 or the power of the undertaker to carry out works under paragraph 91.

(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 14 (temporary stopping up of streets), a protected person 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

87.  The undertaker, in the case of the powers conferred by article 18 (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

88.  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

89.-(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the protected person's apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a protected person to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the protected person 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 protected person in question 56 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 the protected person 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 protected person 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 protected person in question and the undertaker or in default of agreement settled by arbitration in accordance with article 42 (arbitration).

(5) The protected person in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42 (arbitration), and after the grant to the protected person 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 protected person in question that the undertaker intends 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 protected person, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the protected person.

(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-

(a)300 millimetres of apparatus other than oil apparatus; and

(b)3000 millimetres of oil apparatus.

Facilities and rights for alternative apparatus

90.-(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a protected person 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 protected person in question or in default of agreement settled by arbitration in accordance with article 42 (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 the protected person 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 protected person as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

91.-(1) Not less than 56 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 89(2), the undertaker must submit to the protected person in question a plan of the works to be executed together with such method statement(s) as are sufficient to allow the protected person acting reasonably to assess the potential impact of the works on the performance of its functions.

(2) Those works must be executed only in accordance with the plan and method statement(s) submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the protected person for the alteration or otherwise for the protection of the apparatus and of its operation, or for securing access to it, and the protected person is entitled to watch and inspect the execution of those works.

(3) Any requirements made by a protected person 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 protected person 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 83 to 85 and 88 to 90 apply as if the removal of the apparatus had been required by the undertaker under paragraph 89(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 protected person in question notice as soon as is reasonably practicable and a plan of those works and sufficient method statement(s) as soon as reasonably practicable subsequently and must comply with sub-paragraph (1) in so far as is reasonably practicable in the circumstances.

Expenses and costs

92.-(1) Subject to the following provisions of this paragraph, the undertaker must repay to a protected person all expenses reasonably incurred by that protected person 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 89(2), including any costs reasonably incurred in connection with the acquisition of rights under paragraph 89(3), and in watching and inspecting the execution of works under paragraph 91(2) and in making reasonable requirements under paragraph 91(3).

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

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

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

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was 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 42 (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 protected person in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

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

93.-(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of the authorised development or any such works referred to in paragraphs 87, 89(2), or 91(1), 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 protected person, or there is any interruption in any service provided or of any access to any apparatus, or in the supply of any goods or services by any protected person or the performance of that protected person's functions, or any disruption to the normal operation of the apparatus of a protected person resulting in an increase in the costs incurred by that protected person in performing its functions or in any loss, damages or penalty, the undertaker must-

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

(b)make reasonable compensation to that protected person for any other expenses, loss, damages, penalty or costs incurred by the undertaker, by reason or in consequence of any such damage, interruption or disruption.

(2) The fact that any act or thing may have been done by a protected person on behalf of the undertaker or in accordance with a plan approved by a protected person or in accordance with any requirement of a protected person or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

(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 protected person, its officers, servants, contractors or agents.

(4) A protected person must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker who, if withholding such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Co-operation

94.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or a protected person requires the removal of apparatus under paragraph 89(2) or a protected person makes requirements for the protection or alteration of apparatus under paragraph 91, 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 protected person's undertaking and each protected person must use its best endeavours to co-operate with the undertaker for that purpose.

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

PART 9FOR THE PROTECTION OF HEATHROW AIRPORT LIMITED

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

97.  In this Part of this Schedule-

"Heathrow Airport" means Heathrow Airport Limited (Company number: 01991017) and Heathrow Airport Holdings Limited (Company number 05757208), both of whose registered offices are at Compass Centre, Nelson Road, Hounslow, London TW6 2GW;

"the Heathrow Express railway" means the railway from Heathrow airport to the east of the tunnel portal, just west of the junction with the Railway at Airport Junction, authorised by the Heathrow Express Railway Act 1991(63), the Heathrow Express Railway (No. 2) Act 1991(64), and the Heathrow Express Railway Extension Order 2002(65), including the railway stations and all other works, apparatuses and conveniences constructed or provided by Heathrow Airport in connection with, or for the purposes of, that railway; and

"Heathrow Airport property" means any land belonging to Heathrow Airport and-

98.-(1) The undertaker must not exercise the powers conferred by articles 19 (authority to survey and investigate land), 20 (compulsory acquisition of land), 22 (compulsory acquisition of rights), 23 (private rights over land), 25 (acquisition of subsoil or air-space only), 27 (rights under or over streets), 28 (temporary use of land for carrying out the authorised development), 29 (temporary use of land for maintaining the authorised development), 30 (statutory undertakers), or the powers conferred by section 11(3) (powers of entry) of the 1965 Act in respect of any Heathrow Airport property unless the exercise of such powers is with the consent of Heathrow Airport Limited.

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

(3) The undertaker must not under the powers conferred by this Order acquire or use, or acquire new rights over, any Heathrow Airport property except with the consent of Heathrow Airport.

(4) Where Heathrow Airport is asked to give its consent or agreement under this paragraph, such consent or agreement must not be unreasonably withheld but may be given subject to reasonable conditions which may include the requirement to give indemnities or undertake protective works necessary to protect Heathrow Airport property.

99.  Any difference or dispute arising between the undertaker and Heathrow Airport under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Heathrow Airport, be determined by arbitration in accordance with article 42 (arbitration).

PART 10FOR THE PROTECTION OF SSE SERVICES PLC AND SOUTHERN ELECTRIC POWER DISTRIBUTION PLC

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

101.  In this Part of this Schedule-

"alternative apparatus" means alternative apparatus adequate to enable the protected person in question to fulfil its statutory functions in a manner no less efficient than previously;

"apparatus" means electric lines or electrical plant (as defined in the Electricity Act 1989(66)), belonging to or maintained by a protected person;

"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; and

"protected person" means SSE Services plc (company number 02366879, whose registered office is at 55 Vastern Road, Reading, Berkshire, RG1 8BU) or Southern Electric Power Distribution plc (company number 04094290 whose registered office is at 55 Vastern Road, Reading, Berkshire, RG1 8BU).

On street apparatus

102.  This Part of this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the protected person are regulated by the provisions of Part 3 (street works in England and Wales) of the 1991 Act.

Apparatus in stopped up streets

103.-(1) Where any street is stopped up under article 13 (permanent stopping up of streets), any protected person 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 protected person legal easements reasonably satisfactory to the protected person in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the protected person to require the removal of that apparatus under paragraph 106 or the power of the undertaker to carry out works under paragraph 108.

(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 14 (temporary stopping up of streets), a protected person 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

104.  The undertaker, in the case of the powers conferred by article 18 (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

105.  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

106.-(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or over which access to any apparatus is enjoyed or requires that the protected person's apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a protected person to maintain that apparatus in that land and to gain access to it must not be extinguished, until alternative apparatus has been constructed and is in operation, and access to it has been provided, to the reasonable satisfaction of the protected person 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 protected person in question 56 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 the protected person 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 protected person 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 except that this obligation is not to extend to the requirement for the protected person to use its compulsory purchase powers to this end unless it elects to so do.

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

(5) The protected person in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 42 (arbitration), and after the grant to the protected person of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the protected person in question that the undertaker intends 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 protected person, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the protected person.

(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 6000 millimetres of apparatus, unless otherwise agreed between the undertaker and the protected person.

Facilities and rights for alternative apparatus

107.-(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a protected person 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 protected person in question or in default of agreement settled by arbitration in accordance with article 42 (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 the protected person 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 protected person as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

108.-(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 106(2), the undertaker must submit to the protected person 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 protected person for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the protected person is entitled to watch and inspect the execution of those works.

(3) Any requirements made by a protected person 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 protected person 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 100 to 102 and 105 to 107 apply as if the removal of the apparatus had been required by the undertaker under paragraph 106(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 protected person 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 (2) in so far as is reasonably practicable in the circumstances.

Expenses and costs

109.-(1) Subject to the following provisions of this paragraph, the undertaker must repay to a protected person all expenses reasonably incurred by that protected person 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 106(2), including any costs reasonably incurred in connection with the acquisition of rights under paragraph 106(3), and in watching and inspecting the execution of works under paragraph 108(2) and in making reasonable requirements under paragraph 108(3).

(2) The value of any apparatus removed under the provisions of this Part of this 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 at the election of the protected person; 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 at the election of the protected person and is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 42 (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 protected person in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

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

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

110.-(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of the authorised development or any such works referred to in paragraphs 104, 106(2) or 108(1), 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 protected person, or there is any interruption in any service provided or of any access to any apparatus, or in the supply of any goods, by any protected person, the undertaker must-

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

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

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 protected person on behalf of the undertaker or in accordance with a plan approved by a protected person or in accordance with any requirement of a protected person or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

(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 protected person, its officers, servants, contractors or agents.

(4) A protected person 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.

(5) Any difference arising between the undertaker and the protected person under this Part of this Schedule must be referred to and settled by arbitration under article 42 (arbitration).

Co-operation

111.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or a protected person requires the removal of apparatus under paragraph 106(2) or a protected person makes requirements for the protection or alteration of apparatus under paragraph 108, 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 protected person's undertaking and each protected person must use its best endeavours to co-operate with the undertaker for that purpose.

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

Article 40

SCHEDULE 10DOCUMENTS SUBJECT TO CERTIFICATION

The land plans (Document Reference No. 2.2, dated January 2016)-

The works plans (Document Reference No. 2.3, dated January 2016)-

Article 44

SCHEDULE 11PROCEDURE FOR DISCHARGE OF CERTAIN APPROVALS

Applications made for certain approvals

1.-(1) Where an application has been made to a discharging authority for any consent, agreement or approval required or contemplated by any of the provisions of this Order the discharging authority must give notice to the undertaker of their decision on the application before the end of the decision period.

(2) For the purposes of sub-paragraph (1), the decision period is-

(a)where no further information is requested under paragraph 2, 5 weeks from the day immediately following that on which the application is received by the authority;

(b)where further information is requested under paragraph 2, 5 weeks from the day immediately following that on which further information has been supplied by the undertaker under paragraph 2; or

(c)such longer period as may be agreed by the undertaker and the discharging authority in writing before the end of the period in paragraph (a) or (b).

Further information

2.-(1) In relation to any application to which this Schedule applies, the discharging authority has the right to request such further information from the undertaker as is necessary to enable it to consider the application.

(2) If the discharging authority considers such further information to be necessary it must, within 7 business days of receipt of the application, notify the undertaker in writing specifying the further information required.

(3) If the discharging authority does not give such notification as specified in sub-paragraph (2) it is to be 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.

Fees

3.-(1) Where an application is made to the discharging authority for consent, agreement or approval in respect of a requirement, a fee of £97.00 is to be paid to that authority.

(2) Any fee paid under this Schedule must be refunded to the undertaker within 8 weeks of-

(a)the application being rejected as invalidly made; or

(b)the discharging authority failing to determine the application within the decision period as determined under paragraph 1,

unless within that period the undertaker agrees, in writing, that the fee is to be retained by the discharging authority and credited in respect of a future application.

Appeals

4.-(1) The undertaker may appeal in the event that-

(a)the discharging authority refuses an application for any consent, agreement or approval required or contemplated by any of the provisions of this Order or grants it subject to conditions;

(b)the discharging authority does not give notice of its decision to the undertaker within the decision period as determined under paragraph 1;

(c)on receipt of a request for further information under paragraph 2 the undertaker considers that either the whole or part of the specified information requested by the discharging authority is not necessary for consideration of the application; or

(d)on receipt of any further information requested, the discharging authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.

(2) The appeal process is to be as follows-

(a)any appeal by the undertaker must be made within 42 days of the date of the notice of the decision or determination, or (where no determination has been made) expiry of the decision period as determined under paragraph 1;

(b)the undertaker must submit the appeal documentation to the Secretary of State, a copy of the application submitted to the discharging authority and any supporting documentation which the undertaker may wish to provide ("the appeal documentation");

(c)the undertaker must on the same day provide copies of the appeal documentation to the discharging authority;

(d)as soon as is practicable after receiving the appeal documentation, the Secretary of State must appoint a person to determine the appeal ("the appointed person") and must notify the appeal parties of the identity of the appointed person and the address to which all correspondence for that person's attention should be sent;

(e)the discharging authority must submit written representations to the appointed person in respect of the appeal within 10 business days of the date on which the appeal parties are notified of the appointment of a person under paragraph (d) and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

(f)the appeal parties must make any counter-submissions to the appointed person within 10 business days of receipt of written representations under paragraph (e).

(3) The appointed person must make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable.

(4) If the appointed person considers that further information is necessary to enable consideration of the appeal the appointed person must, as soon as practicable, notify the appeal parties in writing specifying the further information required, the appeal party from whom the information is sought, and the date by which the information is to be submitted.

(5) Any further information required under sub-paragraph (4) is to be provided by the party from whom the information is sought to the appointed person and to other appeal parties by the date specified by the appointed person. Any written representations concerning matters contained in the further information must be submitted to the appointed person, and made available to all appeal parties within 10 business days of that date.

(6) On an appeal under this paragraph, the appointed person may-

(a)allow or dismiss the appeal; or

(b)reverse or vary any part of the decision of the discharging authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to the appointed person in the first instance.

(7) The appointed person may proceed to a decision on an appeal taking into account only such written representations as have been sent within the time limits prescribed, or set by the appointed person, under this paragraph.

(8) The appointed person may proceed to a decision even though no written representations have been made within those time limits, if it appears to the appointed person that there is sufficient material to enable a decision to be made on the merits of the case.

(9) The decision of the appointed person on an appeal is to be final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.

(10) If an approval is given by the appointed person under this Schedule, it is deemed to be an approval for the purpose of any consent, agreement or approval required under the Order or for the purpose of Schedule 2 (requirements) as if it had been given by the discharging authority. The discharging authority may confirm any determination given by the appointed person in identical form in writing but a failure to give such confirmation (or a failure to give it in identical form) is not to be taken to affect or invalidate the effect of the appointed person's determination.

(11) Except where a direction is given under sub-paragraph (12) requiring the costs of the appointed person to be paid by the discharging authority, the reasonable costs of the appointed person are to be met by the undertaker.

(12) On application by the discharging authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to the Planning Practice Guidance published by the Department for Communities and Local Government on 6th March 2014 or any circular or guidance which may from time to time replace it.

Interpretation of Schedule 11

5.  In this Schedule-

"the appeal parties" means the discharging authority and the undertaker.

Article 40

SCHEDULE 12ENGINEERING DRAWINGS, SECTIONS AND OTHER INFORMATION