PART 1 E+WPRELIMINARY

Citation and commencementE+W

1.  This Order may be cited as The Reinforcement to the North Shropshire Electricity Distribution Network Order 2020 and comes into force on 14th April 2020.

InterpretationE+W

2.—(1) In this Order—

“the 1961 Act” means the Land Compensation Act 1961 M8;

“the 1965 Act” means the Compulsory Purchase Act 1965 M9;

“the 1980 Act” means the Highways Act 1980 M10;

“the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981 M11;

“the 1984 Act” means the Road Traffic Regulation Act 1984 M12;

“the 1989 Act” means the Electricity Act 1989 M13;

“the 1990 Act” means the Town and Country Planning Act 1990 M14;

“the 1991 Act” means the New Roads and Street Works Act 1991 M15;

“the 2003 Act” means the Communications Act 2003 M16;

“the 2008 Act” means the Planning Act 2008 M17;

“the A5(T)” means the A5 Trunk Road between to the north, the junction with the A495 and the B4590, and, to the south, the junction with the A483;

“access and rights of way plans” means the plans certified as the access and rights of way plans by the Secretary of State under article 35 (certification of plans etc.) and Schedule 9 (documents to be certified) for the purposes of this Order;

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

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

“authorised development” means the development of a 132kV overhead line comprising the nationally significant infrastructure project (Work No.3) 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 of the 2008 Act (meaning of development);

“the book of reference” means the book of reference certified as the book of reference by the Secretary of State under article 35 and Schedule 9 for the purposes of this Order;

“the Canal & River Trust” means a company limited by guarantee (company registration number 07807276) whose registered office is at First Floor, North Station House, 500 Elder Gate, Milton Keynes MK9 1BB and a registered charity registered with the charity commission number 1146792;

“carriageway” has the same meaning as in the 1980 Act;

“compulsory acquisition notice” means a notice served in accordance with section 134 M18 of the 2008 Act (notice of authorisation of compulsory acquisition);

“construction report” means the construction report certified as the construction report by the Secretary of State under article 35 and Schedule 9 for the purposes of this Order;

“date of final commissioning” means the date on which the authorised development first comes into use by distributing electricity at 132kV on a commercial basis;

“electronic transmission” means a communication transmitted—

“the environmental statement” means the documents of that description listed in Schedule 9 and certified by the Secretary of State under article 35 and Schedule 9 as the environmental statement for the purposes of this Order;

“footpath” and “footway” have the same meaning as in the 1980 Act;

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

“Highways England” means Highways England Company Limited (company registration number 9346363) of Bridge House, 1 Walnut Tree Close, Guildford, GU1 4LZ;

“land plans” means the plans certified as the land plans by the Secretary of State under article 35 and Schedule 9 for the purposes of this Order;

“limits of deviation” means the limits of deviation referred to in article 4 (limits of deviation);

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

“Order land” means the land shown on the land plans and described in the book of reference within which the authorised development is taking place;

“the Order limits” means the limits shown on 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 of the Acquisition of Land Act 1981(interpretation) M19;

“plans of important hedgerows affected” means the plans certified as the plans of important hedgerows affected by the Secretary of State under article 35 and Schedule 9 for the purposes of this Order;

“relevant highway authority” means Shropshire Council, or Highways England in relation to the A5(T);

“relevant planning authority” means Shropshire Council;

“requirements” means those matters set out in Schedule 2 to this Order and any numbered requirement must be construed accordingly;

“SP Manweb PLC” means SP Manweb PLC (company registration number 02366937) whose registered office is at 3 Prenton Way, Prenton, CH43 3ET;

“statutory undertaker” means (except in Schedule 6, Part 2) any person falling within section 127(8) of the 2008 Act (statutory undertakers' land) or a public communications provider as defined in section 151 of the 2003 Act (interpretation of Chapter 1);

“street” means a street within the meaning of section 48 of the 1991 Act M20 (streets, street works and undertakers), together with land on the verge of a street or between two carriageways, and includes any footpath and “street” includes any part of a street;

“street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act M21;

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

“traffic authority” has the same meaning as in section 121A of the 1984 Act (traffic authorities); M22

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

“undertaker” means SP Manweb PLC or any other person who has the benefit of this Order in accordance with article 7 (benefit of the Order) or article 8 (consent to transfer benefit of the Order);

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

“the works plans” means the plans certified as the works plans by the Secretary of State under article 35 and Schedule 9 for the purposes of this Order.

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

(3) All distances, directions and lengths referred to in this Order are approximate and distances between points are taken to be measured between the referenced points.

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

(5) References in this Order to numbered works are references to the works comprising the authorised development as numbered in Schedule 1 and shown on the works plans.

PART 2 E+WPRINCIPAL POWERS

Development consent etc. granted by the OrderE+W

3.—(1) The undertaker is granted development consent for the authorised development as set out in Schedule 1 (authorised development), to be carried out within the Order limits and subject to the provisions of this Order including the requirements set out in Schedule 2 (requirements).

(2) Subject to article 4 (limits of deviation), each numbered work must be situated in the area shown on the works plans.

Limits of deviationE+W

4.  In carrying out or maintaining the authorised development the undertaker may—

(a)subject to requirements 3 and 4, deviate from the lines or situations of the authorised development shown on the works plans and carry out construction and maintenance for the purposes of the authorised development anywhere within the Order limits; and

(b)deviate vertically from the levels of the authorised development set out in column 3 of Table 1 of requirement 3—

(i)to any extent not exceeding 2 metres upwards; or

(ii)to any extent downwards as may be found necessary or convenient.

Operation of authorised developmentE+W

5.—(1) The undertaker is authorised to install and keep installed the authorised development.

(2) This article does not relieve the undertaker of obtaining any permit or licence under any other legislation that may be required from time to time authorising the installation, maintenance or use of the authorised development.

(3) The undertaker may use the authorised development as part of the electricity distribution system in England and Wales.

Maintenance of authorised developmentE+W

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

(2) This article only authorises the carrying out of maintenance works within the Order limits.

Benefit of the OrderE+W

7.—(1) Subject to article 8 (consent to transfer benefit of the Order), and paragraph (2), the provisions of this Order have effect solely for the benefit of the undertaker.

(2) Paragraph (1) does not apply where this Order provides an express benefit to owners and occupiers of land, statutory undertakers and other persons affected by the authorised development.

Consent to transfer benefit of the OrderE+W

8.—(1) Subject to paragraph (4), the undertaker may—

(a)transfer to another person (“the transferee”) any or all of the benefit of this Order and such related statutory rights as may be agreed in writing 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 this Order and such related statutory rights as may be so agreed.

(2) Where a transfer, or grant, 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.

(4) The consent of the Secretary of State is required for the exercise of the powers of paragraph (1) except where—

(a)the transferee or lessee is a statutory undertaker;

(b)the transferee or lessee is a person who holds a licence issued under section 6(1) of the 1989 Act (licences authorising supply, etc) M23; or

(c)the time limits for all claims for compensation in respect of the acquisition of land or effects upon land under this Order have elapsed and—

(i)no such claims have been made;

(ii)any such claims that have been made have all been compromised or withdrawn;

(iii)compensation has been paid in final settlement of all such claims;

(iv)payment of compensation into court in lieu of settlement of all such claims has taken place; or

(v)it has been determined by a tribunal or court of competent jurisdiction in respect of all claims that no compensation is payable.

(5) Where an exception in paragraph (4) applies, the undertaker must notify the Secretary of State in writing before transferring or granting any benefit referred to in paragraph (1).

(6) The notification referred to in paragraph (5) must state—

(a)the name and contact details of the person to whom the benefit of the powers will be transferred or granted;

(b)subject to paragraph (7), the date on which the transfer will take effect;

(c)the powers to be transferred or granted;

(d)pursuant to paragraph (3), the restrictions, liabilities and obligations that will apply to the person exercising the powers transferred or granted; and

(e)where relevant, a plan showing the works or areas to which the transfer or grant relates.

(7) The date specified under paragraph (6)(b) must not be earlier than the expiry of five working days from the date of the receipt of the notice.

(8) The notice given under paragraph (6) must be signed by the undertaker and the person to whom the benefit of the powers will be transferred or granted as specified in that notice.

PART 3 E+WSTREETS

Power to alter layout, etc. of streetsE+W

9.—(1) Subject to paragraphs (2) and (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, without limitation on the scope of this paragraph, the undertaker may—

(a)permanently or temporarily alter the layout of any street or junction;

(b)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;

(c)alter the level or increase the width of any kerb, footpath, footway, cycle track or verge;

(d)reduce the width of the carriageway of the street;

(e)make and maintain crossovers and passing place(s);

(f)carry out works for the provision of parking places and unloading areas; and

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

(2) Unless otherwise agreed in writing with the street authority, 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) must not be exercised without the consent of the street authority.

(4) Paragraphs (1)(a), (2) and (3) do not apply where the undertaker is the street authority for a street in which the works are being carried out.

(5) The powers conferred by paragraph (1) do not apply to the A5(T).

Street worksE+W

10.—(1) The undertaker may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 3 (streets subject to street works) as is within the Order limits and may carry out the street works specified in column (3) of that Schedule.

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

(3) The powers conferred in paragraphs (1) and (2) are without prejudice to the powers of the undertaker under the 1989 Act.

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

Temporary prohibition or restriction of use of streets and public rights of wayE+W

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

(a)divert the traffic from the street or public right of way; and

(b)subject to paragraph (3), prevent all persons from passing along the street or public right of way.

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

(3) The undertaker must provide reasonable access for non-motorised users (including pedestrians) going to or from premises abutting a street or public right of way affected by the temporary alteration, diversion, prohibition of use or restriction of use of a street under this article if there would otherwise be no such access, and ensure that relevant provision is made for residents to park and for services to access properties which may be affected by the temporary alteration, diversion, prohibition of use or restriction of use of a street or public right of way under this article.

(4) The powers conferred by paragraph (1) must not be exercised without the consent of the street authority which may attach reasonable conditions to any consent.

(5) 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 of the 1961 Act.

(6) This article does not remove the requirement for the undertaker to obtain any order required under sections 1, 9 or 22BB of the 1984 Act (traffic regulation orders outside Greater London) (experimental traffic orders) (traffic regulation byways etc. on National Parks in England and Wales).

Traffic regulationE+W

12.—(1) Subject to the provisions of this article and the consent of the traffic authority in whose area the road concerned is situated, the undertaker may, in so far as may be expedient or necessary for the purposes of or in connection with construction of the authorised development, at any time prior to the date of final commissioning—

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

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

(c)make provision as to the direction or priority of vehicular traffic on any road either at all times or at times, on days or during such periods as may be specified by the undertaker.

(2) The undertaker must not exercise any prohibition, restriction or other provision under article 11 or paragraph (1) of this article unless it has—

(a)given not less than 4 weeks' notice in writing of its intention so to do to the traffic authority in whose area the road is situated; and

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

(3) Any prohibition, restriction or other provision made by the undertaker under article 11 or paragraph (1)—

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

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

(ii)by the local authority in whose area the road is situated as an order under section 32 of the 1984 Act (power of local authorities to provide parking places) M24,

and the instrument by which it is effected is deemed to be a traffic order for the purposes of Schedule 7 to the Traffic Management Act 2004 (road traffic contraventions subject to civil enforcement) M25.

(4) In this article—

(a)subject to sub-paragraph (b) expressions used in this article and in the 1984 Act have the same meaning; and

(b)a “road” means a road that is a public highway maintained by and at the expense of the traffic authority.

Access to worksE+W

13.—(1) The undertaker may, for the purposes of the authorised development and with the consent of the relevant planning authority, after consultation with the relevant highway authority, form and lay out such means of access or improve the existing means of access, at such locations within the Order limits as the undertaker reasonably requires for the purposes of the authorised development.

(2) The powers conferred by paragraph (1) do not apply to the A5(T).

Agreement with street authoritiesE+W

14.—(1) A street authority and the undertaker may enter into agreements with respect to—

(a)the construction of any new street (including any structure carrying the street under or over the authorised development) authorised by this Order;

(b)the strengthening, improvement, repair or reconstruction of any street under the powers conferred by this Order;

(c)any temporary closure, alteration or diversion of a street authorised by this Order;

(d)the carrying out in the street of any works.

(2) Such an agreement may, without prejudice to the generality of paragraph (1)—

(a)make provision for the street authority to carry out any function under this Order which relates to the street in question;

(b)include an agreement between the undertaker and street authority specifying a reasonable time for the completion of the works; and

(c)contain such terms as to payment and otherwise as the parties consider appropriate.

PART 4 E+WSUPPLEMENTAL POWERS

Discharge of waterE+W

15.—(1) Subject to paragraphs (2) to (8), the undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction, operation 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 pursuant to paragraph (1) is to be determined as if it were a dispute under section 106 of the Water Industry Act 1991 (right to communicate with public sewers) M26.

(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) Except as otherwise authorised under this Order, the undertaker must not, in carrying out or maintaining works, 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 pursuant to this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) This article does not authorise any water discharge activities or groundwater activities for which a licence is required pursuant to regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2016 (requirement for an environmental permit) M27.

(8) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker; and

(b)other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991 M28 have the same meaning as in that Act.

Authority to survey and investigate the landE+W

16.—(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 prejudice to the generality of sub-paragraph (a), make trial holes, boreholes or excavations 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 prejudice to the generality of sub-paragraph (a), carry out ecological or archaeological investigations on such land; and

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

(2) No land may be entered or equipment placed or left on 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 their authority to do so; and

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

(4) No trial holes, boreholes or excavations are to be made under this article—

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

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

(5) The undertaker must—

(a)make good any damage to the land where it has made a trial hole, boreholes or excavation;

(b)remove from the land any apparatus used in connection with the survey and investigation of land when no longer required; and

(c)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 of the 1961 Act (determination of questions of disputed compensation).

PART 5 E+WPOWERS OF ACQUISITION

Compulsory acquisition of rights: incorporation of the mineral codeE+W

17.  Parts 2 and 3 of Schedule 2 to the Acquisition of Land Act 1981 M29 (minerals) are incorporated into this Order subject to the modifications that—

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

(b)for the “acquiring authority” there is substituted “ the undertaker ”.

Compulsory acquisition of rightsE+W

18.—(1) The undertaker may create and acquire compulsorily the rights in, under or over the Order land and impose the restrictions affecting the Order land described in the book of reference and shown on the land plans.

(2) Subject to section 8 (other provisions as to divided land) and Schedule 2A (counter-notice requiring purchase of land not in notice to treat) of the 1965 Act M30 (as substituted by paragraph 5(8) of Schedule 4 (modification of compensation and compulsory purchase enactments for creation of new rights)) and section 12 of the 1981 Act (divided land) M31, where the undertaker creates or acquires a right over land under paragraph (1), the undertaker is not required to acquire a greater interest in that land.

(3) Schedule 4 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 in, under or over land by the creation of a new right or imposition of a restriction.

(4) In any case where the creation and acquisition of rights or the imposition of a restriction under paragraph (1) is required for the purposes of diverting, replacing or protecting the apparatus of a statutory undertaker, the undertaker may, with the consent of the Secretary of State, transfer the power to create and acquire such rights or impose such restrictions to the statutory undertaker in question.

(5) The exercise by a statutory undertaker of any power pursuant to a transfer under paragraph (4) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by the undertaker.

(6) Subject to the modifications set out in Schedule 4 of the 1965 Act the enactments for the time being in force with respect to compensation for the compulsory purchase of land are to apply in the case of a compulsory acquisition under this Order in respect of a right by the creation of a new right as they apply to the compulsory purchase of land and interests in land.

Statutory authority to override easements and other rightsE+W

19.—(1) The carrying out or use of the authorised development and the doing of anything else authorised by this Order is authorised for the purpose specified in section 158(2) of the 2008 Act (nuisance: statutory authority), despite it involving—

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

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

(2) The undertaker must pay compensation to any person whose land is injuriously affected by—

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

(b)a breach of a restriction as to use of land arising by virtue of contract,

caused by the carrying out or use of the authorised development and the operation of section 158 of the 2008 Act.

(3) The interests and rights to which this article applies are any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.

(4) Subsection (2) of section 10 of the 1965 Act (further provision as to compensation for injurious affection) applies to paragraph (2) by virtue of section 152(5) of the 2008 Act (compensation in case where no right to claim in nuisance).

(5) Any rule or principle applied to the construction of section 10 of the 1965 Act must be applied to the construction of paragraph (2) with any necessary modifications.

Time limit for exercise of authority to acquire rights compulsorilyE+W

20.—(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 may be served under Part 1 of the 1965 Act; and

(b)no declaration may be executed under section 4 of the 1981 Act M32 (execution of declaration) as applied by article 22 (application of the 1981 Act).

(2) The authority conferred by article 26 (temporary use of land for carrying out the authorised development) ceases at the end of the period referred to in paragraph (1), save 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.

Private rightsE+W

21.—(1) Subject to the provisions of this article, all private rights or restrictive covenants over land subject to compulsory creation and acquisition of rights or the imposition of restrictions under the Order are to be suspended as is necessary to ensure the operation of the Order and insofar as their continuance would be inconsistent with the exercise of the right created and acquired or the burden of the restriction imposed—

(a)as from the date of creation and acquisition of the right or the benefit of the restriction 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) M33 of the 1965 Act (power of entry) in pursuance of the right,

whichever is the earliest.

(2) Subject to the provisions of this article, all private rights and restrictive covenants save any such rights benefitting the undertaker over land of which the undertaker takes temporary possession under this Order are to be suspended and unenforceable for as long as the undertaker remains in lawful possession of the land and so far as their continuance would be inconsistent with the exercise of the temporary possession of that land.

(3) Any person who suffers loss by the extinguishment or suspension of any private right or restrictive covenant under this Order is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) This article does not apply in relation to any right to which section 138 of the 2008 Act M34 (extinguishment of rights, and removal of apparatus, of statutory undertakers etc.) or article 29 (statutory undertakers) applies.

(5) Paragraphs (1) to (3) have effect subject to—

(a)any notice given by the undertaker before—

(i)the completion of the creation and acquisition of rights or the imposition of restrictions over or affecting the land;

(ii)the undertaker's appropriation of that land;

(iii)the undertaker's entry onto that land; or

(iv)the undertaker's taking temporary possession of that land,

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 or restrictive covenant in question is vested or belongs.

(6) If any such agreement referred to in paragraph (5)(b)—

(a)is made with a person in or to whom the right or restrictive covenant 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.

(7) Reference in this article to private rights and restrictive covenants over land includes any trust, incident, easement, wayleave, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including natural right to support and personal covenants.

Application of the 1981 ActE+W

22.—(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) there is substituted—

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

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

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

(6) In section 5B(1) M35 (extension of time limit during challenge)—

(a)for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order)” substitute “ section 118 M36 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent) ”; and

(b)for “the three year period mentioned in section 5A” substitute “ the five year period mentioned in article 20 (time limit for exercise of authority to acquire rights compulsorily) of the Reinforcement to the North Shropshire Electricity Network Order 2020 ”.

(7) In section 6 M37 (notices after execution of declaration), in subsection (1)(b), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “ section 134 M38 (notice of authorisation of compulsory acquisition) of the Planning Act 2008 ”.

(8) In section 7 M39 (constructive notice to treat), in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(9) In Schedule A1 M40 (counter-notice requiring purchase of land not in general vesting declaration) for paragraph 1(2) substitute—

“(2) But see article 23(3) (acquisition of subsoil or airspace only) of the Reinforcement to the North Shropshire Electricity Distribution Network Order 2020 which excludes the acquisition of subsoil or airspace only from this Schedule.”

(10) References to the 1965 Act in the 1981 Act are to be construed as references to that Act as applied by section 125 M41 (application of compulsory acquisition provisions) of the 2008 Act as modified by article 24 (modification of Part 1 of the 1965 Act) to the compulsory acquisition of rights under this Order.

Acquisition of subsoil or airspace onlyE+W

23.—(1) The undertaker may acquire compulsorily such rights in the subsoil of, or the airspace over, the land referred to in article 18 (compulsory acquisition of rights) as may be required for any purpose for which rights or restrictions over that land may be created and acquired or imposed under that provision instead of acquiring any greater interest in that land.

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

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

(a)Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

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

(c)Section 153(4A) M42 (reference of objection to the Upper Tribunal: general - blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

(4) Paragraphs (2) and (3) do not apply where the undertaker acquires a cellar, vault, arch, or other construction forming part of a house, building or manufactory or airspace above a house building or manufactory.

Modification of Part 1 of the 1965 ActE+W

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

(2) In section 4A(1) M43 (extension of time limit during challenge)—

(a)for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 4” substitute “ section 118 of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent), the five year period mentioned in article 20 (time limit for exercise of authority to acquire rights compulsorily) of the Reinforcement to the North Shropshire Electricity Distribution Network Order 2020 ”.

(3) In section 11A M44 (powers of entry: further notices of entry)—

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

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

(4) In section 22(2) (interests omitted from purchase), for “section 4 of this Act” substitute “ article 20 (time limited for exercise of authority to acquire rights compulsorily) of the Reinforcement to the North Shropshire Electricity Distribution Network Order 2020 ”.

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

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

“(2) But see article 23(3) (acquisition of subsoil or airspace only) of the Reinforcement to the North Shropshire Electricity Distribution Network Order 2020, which excludes the acquisition of subsoil or airspace only from this Schedule”

(b)after paragraph 29 insert—

“PART 4 E+WINTERPRETATION

30.  In this Schedule, references to entering on and taking possession of land do not include doing so under article 26 (temporary use of land for carrying out the authorised development) or article 27 (temporary use of land for maintaining the authorised development) of The Reinforcement to the North Shropshire Electricity Distribution Network Order 2020.”

Rights under or over streetsE+W

25.—(1) The undertaker may enter upon and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised development and may use the subsoil or airspace for those purposes.

(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) is not to 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 by the exercise of that power, is to be entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) Compensation is not to be payable under paragraph (4) to any person who is an undertaker to whom section 85 of the 1991 Act (sharing cost of necessary measures) 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 developmentE+W

26.—(1) Subject to article 20(2) (time limit for exercise of authority to acquire rights compulsorily) and subject to paragraphs (2) to (11), the undertaker may, in connection with the carrying out of the authorised development—

(a)enter on and take temporary possession of—

(i)so much of the land specified in columns (1) and (2) of Schedule 5 (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 of the 1965 Act (powers of entry) (other than in connection with the acquisition of rights only) and no declaration has been made under section 4 of the 1981 Act (execution of declaration);

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

(c)construct temporary works [F1and permanent works] (including the provision of means of access, gates, fences and other boundary structures) on that land and use that land as temporary laydown area, storage area and working area;

(d)construct any works specified in relation to that land in column (3) of Schedule 5; and

(e)carry out reinstatement works required pursuant to the requirements in Schedule 2 (requirements).

(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 after the end of the period of one year beginning with the date of final commissioning unless the undertaker has, before the end of that period, served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 M45 of the 1981 Act (execution of declaration) or has otherwise acquired the land subject to temporary possession.

(4) Unless the undertaker has served notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the 1981 Act or has otherwise acquired the rights over land subject to temporary possession, the undertaker must before giving up possession of land of which temporary possession has been taken under either paragraph (1)(a)(i) or (1)(a)(ii), remove all temporary [F2and permanent works] (including accesses to the public highway) and restore the land to the reasonable satisfaction of the owners of the land and any highway access to the reasonable satisfaction of the relevant highway authority; but the undertaker is not required to—

(a)replace any electric line, electrical plant, buildings, structures, poles and apparatus removed under this article; or

(b)restore the land on which any works have been carried out under paragraph (1)(d) insofar as the works relate to mitigation works identified in the environmental statement or required pursuant to the requirements in Schedule 2.

(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 any power conferred by 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 of the 1961 Act.

(7) Nothing in this article affects any liability to pay compensation under section 152 M46 of the 2008 Act (compensation in case where no right to claim in nuisance) 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) Nothing in this article precludes the undertaker from—

(a)acquiring new rights or imposing restrictions on any part of the Order land under article 18 (compulsory acquisition of rights); or

(b)acquiring any right in the subsoil or of airspace over the Order land under article 23 (acquisition of subsoil or airspace only).

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

(10) Section 13 M47 of the 1965 Act (refusal to give possession to acquiring authority) 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 of the 2008 Act (application of compulsory acquisition provisions).

(11) Nothing in this article prevents the taking of temporary possession more than once in relation to any land specified in Schedule 5.

(12) The provisions of Chapter 1 of Part 2 of the Neighbourhood Planning Act 2017 M48 do not apply insofar as they relate to temporary possession of land under this article.

(13) The undertaker may not rely on the power conferred by paragraph (1)(c) to construct any new means of access without the consent of Highways England where they are the relevant highway authority for the highway from which the access will be taken.

Temporary use of land for maintaining the authorised developmentE+W

27.—(1) Subject to article 20(2) (time limit for exercise of authority to acquire rights compulsorily) and subject to paragraphs (2) to (10), 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;

(b)construct such temporary works (including the provision of means of access) and structures on the land as may be reasonably necessary for that purpose; and

(c)enter on any land within the Order limits for the purpose of gaining access as is reasonably required for the purpose of maintaining the authorised development.

(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 (including accesses to the public highway) and restore the land to the reasonable satisfaction of the owners of the land and any highway access to the reasonable satisfaction of the relevant highway authority.

(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 arising 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 the compensation, is to be determined under Part 1 of the 1961 Act.

(8) Nothing in this article affects any liability to pay compensation under section 152 of the 2008 Act (compensation in case where no right to claim in nuisance) 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 any interest in it.

(10) Section 13 of the 1965 Act (refusal to give possession to acquiring authority) 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 of the 2008 Act (application of compulsory acquisition provisions).

(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 of final commissioning.

(12) Paragraph (1) does not authorise the undertaker to construct or provide any new means of access unless the undertaker has obtained the consent of Highways England where they are the highway authority for the highway from which the access will be taken.

(13) The provisions of Chapter 1 of Part 2 of the Neighbourhood Planning Act 2017 do not apply insofar as they relate to the temporary possession of land under this article.

Special category landE+W

28.—(1) Subject to the provisions of this article, so much of the special category land as will be required for the purposes of the exercising by the undertaker of the Order rights will be suspended from all rights, trusts and incidents to which it was previously subject—

(a)as from the date of creation and acquisition of the right or the benefit of the restriction 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 (power of entry) in pursuance of the right,

whichever is the earliest.

(2) So far as the temporary use of land under article 26 (temporary use of land for carrying out the authorised development) is concerned, the suspension in paragraph (1) is only for such time as the land is being used under that article.

(3) In this article—

“Order rights” means rights and powers exercisable over the special category land by the undertaker under article 18 (compulsory acquisition of rights), article 26 (temporary use of land for carrying out the authorised development); and

“the special category land” means the land numbered 2, 3 and 4 identified as forming part of a common, open space, or fuel or field allotment in the book of reference and on the land plans.

Statutory undertakersE+W

29.—(1) Schedule 6 (protective provisions) has effect.

(2) Subject to the provisions of Schedule 6, the undertaker may—

(a)extinguish or suspend the rights of, remove or reposition the apparatus belonging to, statutory undertakers shown on the land plans and described in the book of reference; and

(b)create and acquire compulsorily the rights or impose restrictions over land belonging to statutory undertakers shown on the land plans and described in the book of reference.

Recovery of costs of new connectionsE+W

30.—(1) Where any apparatus of a public utility undertaker or of a public communications provider is removed under article 29 (statutory undertakers) any person who is the owner or occupier of premises to which a supply was given from that apparatus is to be 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 29 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 to be 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) In this article—

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

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

PART 6 E+WOPERATIONS

Felling or lopping of trees and removal of hedgerowsE+W

31.—(1) The undertaker may fell or lop any tree or shrub or cut back its roots within or overhanging land within the Order limits, if it reasonably believes it to be necessary to do so to prevent the tree or shrub from—

(a)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)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 of the 1961 Act.

(4) The undertaker may, for the purposes of the authorised development—

(a)subject to paragraph (2), remove any hedgerows within the Order limits that may be required for the purposes of carrying out the authorised development; and

(b)remove the important hedgerows as are within the Order limits and specified in Schedule 8 (removal of important hedgerows).

(5) The power conferred by paragraph (4) removes any obligation upon the undertaker to secure any consent under the Hedgerows Regulations 1997 M49.

(6) In this article “hedgerow” and “important hedgerow” have the same meaning as in the Hedgerows Regulations 1997.

PART 7 E+WMISCELLANEOUS AND GENERAL

Application of landlord and tenant lawE+W

32.—(1) This article applies to—

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

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

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

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

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

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

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

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

Operational land for the purposes of the 1990 ActE+W

33.  Development consent granted by this Order must be treated as specific planning permission for the purposes of section 264(3)(a) of the 1990 Act (cases in which land is to be treated as not being operational land).

Defence to proceedings in respect of statutory nuisanceE+W

34.—(1) Where proceedings are brought under section 82(1) M50 of the Environmental Protection Act 1990 (summary proceedings by persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) M51 of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order is to be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that the nuisance—

(a)relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 M52 (prior consent for work on construction sites) of the Control of Pollution Act 1974 M53;

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

(c)is a consequence of the use of the authorised development and that it cannot reasonably be avoided.

(2) Section 61(9) of the Control of Pollution Act 1974 (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) is not to 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.

Certification of plans etc.E+W

35.—(1) The undertaker must, as soon as practicable after the date on which this Order is made, submit to the Secretary of State copies of the documents listed in Schedule 9 (documents to be certified) 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 plan or document of which it is a copy.

Service of noticesE+W

36.—(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 (6) 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 of the Interpretation Act 1978 M54 (references to service by post) 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 that body corporate, the registered or principal office of that body; and

(b)in any other case, the last known address of that person at that 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 an 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 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 the person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

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

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

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

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

(d)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 seven days of receipt that the recipient requires a paper copy of all or any 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 an electronic transmission by a person may be revoked by that person in accordance with paragraph (8).

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

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

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

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

Procedure in relation to certain approvals etc.E+W

37.—(1) Where an application is made to or request is made of the relevant planning authority, a relevant highway authority, a traffic authority, a street authority, or the owner of a watercourse, sewer or drain for any consent, agreement or approval required or contemplated by any of the provisions of the Order (not including the requirements), such consent, agreement or approval to be validly given, must be given in writing and must not be unreasonably withheld or delayed.

(2) Save for the applications made pursuant to Schedule 7 (procedure for discharge of requirements) and any application made to Highways England, if, within 42 days after the application or request has been submitted to an authority or an owner as referred to in paragraph (1) of this article (or such longer period as may be agreed in writing with the undertaker) it has not notified the undertaker of its decision (and if it is a disapproval the grounds of disapproval), it is deemed to have approved the application or request.

(3) Schedule 7 is to have effect in relation to all consents, agreements or approvals required from the relevant planning authority pursuant to the requirements.

(4) The powers conferred by paragraph (1) do not apply to an application to or request made of Highways England in relation to the A5(T).

ArbitrationE+W

38.  Subject to article 37 (procedure in relation to certain approvals etc.) and except where otherwise provided for in this Order any difference under any provision of this Order, is to 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 Secretary of State.

Article 3

SCHEDULE 1E+WAUTHORISED DEVELOPMENT

A nationally significant infrastructure project, as defined in sections 14(1)(b) and 16 M55 of the 2008 Act and associated development within the meaning of section 115(2) M56 of the 2008 Act comprising—

OSWESTRY SUBSTATION (Associated Development)E+W

Work No. 1 Works at Oswestry substation as shown on sheet 1 of the works plans comprising the installation of electrical switchgear and associated equipment (including 132kV cable sealing ends, isolator and associated busbar and 132kV outdoor circuit breaker) and 132kV underground cable.

132kV UNDERGROUND CABLE (Associated Development)E+W

Work No. 2 the construction and installation and keeping of a 132kV underground cable and fibre optic cable 1.2km in length from Oswestry substation connecting to Work No.3 at a terminal structure at Long Wood (grid reference: SJ 3113229877) comprising three 132kV single core cables together with a fibre optic cable installed in 200mm diameter polyethylene ducts laid in trefoil formation together with the installation of cable protection tiles above at a depth of approximately 1.4m to ensure a final minimum depth of 975mm and as shown on sheet 1 of the works plans; and

(a)site preparation works and site clearance (including fencing, felling and vegetation removal);

(b)earthworks (including soil stripping and storage and site levelling);

(c)carrying out surveys or taking soil samples;

(d)establishment of temporary laydown and storage areas, temporary vehicle parking and construction fencing;

(e)cutting down, uprooting, topping or lopping of trees or shrubs or cutting back their roots;

(f)reinstatement hedgerow planting;

(g)establishment of temporary means of access and trackways;

(h)drainage works;

(i)ramps, means of access, footpaths and bridleways;

(j)works to alter the position of apparatus, including mains, sewers, drains and cables;

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

(l)works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

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

(n)the removal, disposal or re-siting of apparatus;

(o)open trench excavations and directional drilling.

132kV OVERHEAD LINE (Nationally Significant Infrastructure Project)E+W

Work No. 3 the construction and installation and keeping of a 132kV electric line above ground of 21.3 km in length commencing in the vicinity of Long Wood (grid ref: SJ 3113229877) and following an easterly direction passing to the south of Whittington, north of Rednal, to the north of Lower Hordley, south of Cockshutt, and passing to the south of Loppington terminating at a gantry at Wem substation more particularly shown on sheets 1 to 16 of the works plans. This comprises a three phase 132kV line (three wires/conductors and fibre optic cable) mounted on 176 trident wood pole structures extending up to 18m high and terminal ends and cable sealing ends at terminal poles and all modifications required and any support to facilitate a change in angle of the electric line; and—

(a)site preparation works and site clearance (including fencing, felling and vegetation removal);

(b)earthworks (including soil stripping and storage and site levelling);

(c)carrying out surveys or taking soil samples;

(d)establishment of temporary laydown and storage areas, temporary vehicle parking and construction fencing;

(e)cutting down, uprooting, topping or lopping of trees or shrubs or cutting back their roots;

(f)reinstatement hedgerow planting;

(g)establishment of temporary means of access and trackways;

(h)drainage works;

(i)works to alter ramps, means of access, footpaths and bridleways;

(j)works to alter the position of apparatus, including mains, sewers, drains and cables;

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

(l)works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

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

(n)the provision of overhead electricity cables underground ducting and placing electricity cables below ground to connect to Work No.2 and Work No.5;

(o)establishment of winching points and the installation of scaffolding; and

(p)a welfare unit and a security cabin at laydown area number 7.

LOWER VOLTAGE DIVERSIONS (Associated Development)E+W

Work No.4A the removal of existing 11kV and 33kV overhead lines between Oswestry and Wem as shown on sheets 2, 3, 7, 8, 12, 13, 14 and 16 of the works plans and all associated wood poles, conductors, insulators and fittings and—

(a)site preparation works and site clearance (including fencing, felling and vegetation removal);

(b)earthworks (including soil stripping and storage and site levelling);

(c)carrying out surveys or taking soil samples;

(d)establishment of temporary laydown and storage areas, temporary vehicle parking and construction fencing;

(e)cutting down, uprooting, topping or lopping of trees or shrubs or cutting back their roots;

(f)reinstatement hedgerow planting;

(g)establishment of temporary means of access and trackways;

(h)drainage works;

(i)works to alter ramps, means of access, footpaths and bridleways;

(j)works to alter the position of apparatus, including mains, sewers, drains and cables;

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

(l)works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

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

(n)establishment of winching points and the installation of scaffolding.

Work No.4B the undergrounding of 11kV and 33kV cables between Oswestry and Wem as shown on sheets 1, 2, 3, 7, 8, 9, 12, 13, 14 and 16 of the works plans and—

(a)site preparation works and site clearance (including fencing, felling and vegetation removal);

(b)earthworks (including soil stripping and storage and site levelling);

(c)carrying out surveys or taking soil samples;

(d)establishment of temporary laydown and storage areas, temporary vehicle parking and construction fencing;

(e)cutting down, uprooting, topping or lopping of trees or shrubs or cutting back their roots;

(f)reinstatement hedgerow planting;

(g)establishment of temporary means of access and trackways;

(h)drainage works;

(i)works to alter ramps, means of access, footpaths and bridleways;

(j)works to alter the position of apparatus, including mains, sewers, drains and cables;

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

(l)works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

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

(n)establishment of winching points and the installation of scaffolding;

(o)works to install the means to connect the lower voltage overhead line (Work No.4A) with the new section of lower voltage underground cable.

WEM SUBSTATION (Associated Development)E+W

Work No.5 —Works at Wem substation as shown on sheet 16 of the works plans comprising the installation of a 132kV gantry, isolator, associated busbar, a 132kV to 33kV transformer, 33kV cable and a 33kV circuit breaker and—

(a)site preparation works and site clearance (including fencing);

(b)levelling;

(c)creation of hard stoned area.

Article 3

SCHEDULE 2E+WREQUIREMENTS

InterpretationE+W

1.  In this Schedule—

“bank holiday” means a holiday as defined under section 1 of the Banking and Financial Dealings Act 1971 M57;

“commencement” means the carrying out of a material operation, as defined in section 155 of the 2008 Act (when development begins), comprised in or carried out for the purposes of the authorised development and the words “commence” and “commenced” are to be construed accordingly;

“construction environmental management plan” means the document certified under article 35 (certification of plans etc.) and Schedule 9 (documents to be certified) by the Secretary of State;

“felling” means any felling or lopping undertaken pursuant to article 31 (felling or lopping of trees and removal of hedgerows) of this Order;

“planning consent” means any of the following—

“Pole Type Diagram” means Diagram 3.2 Illustration of Pole Types (July 2019) certified under article 35 and Schedule 9 by the Secretary of State;

“reinstatement planting” means the reinstatement of the vegetation that has been removed to enable the construction of the authorised development; and

“working hours” means Monday to Friday between 0700 and 1900 hours during the months of March to October and between 0730 and 1730 hours or during daylight hours, whichever is the shorter, during the months of January to February and November to December and between 0700 and 1300 hours on Saturdays, with no works to take place on Sundays or bank or public holidays.

Time limitsE+W

2.  The authorised development must be commenced within 5 years of the date that this Order is made.

Compliance with approved detailsE+W

3.  The construction of the pole structures forming part of the authorised development comprised in Work No.3 must take place in accordance with the approved drawings listed in Table 1 below and within the limits of deviation as set out in article 4(a) (limits of deviation) as limited by requirement 4—

Restriction on the limits of deviationE+W

4.  No pole structure as set out in Table 1 of requirement 3 is authorised to move—

(a)more than 5 metres in any direction from its location as shown on the works plans; or

(b)within 1 metre of the outside edge of any hedgerow.

PlansE+W

5.  Subject to article 4 (limits of deviation) and requirements 3, 4, 8 and 10 the authorised development must be carried out in accordance with the plans or other documents certified in accordance with article 35 (certification of plans etc.) and Schedule 9 (documents to be certified).

FellingE+W

6.—(1) All felling must be undertaken in accordance with the relevant guidance specified in paragraph (2).

(2) The relevant guidance is The UK Forestry Standard (“UKFS”) (2017).

Construction hoursE+W

7.—(1) Subject to sub-paragraph (2), construction work must not take place other than during the working hours.

(2) The following operations may take place outside the working hours—

(a)the installation and removal of scaffolding and protective netting across railways, highways and watercourses;

(b)stringing of the 132kV overhead line across the highway subject to the prior written approval of the relevant planning authority;

(c)the completion of construction works commenced during working hours which cannot be safely stopped.

Contaminated land and groundwaterE+W

8.—(1) In the event that contamination is found at any time when carrying out the authorised development, it must be reported in writing immediately to the relevant planning authority and the constructing of that part of the authorised development affected by such contamination must cease immediately. An investigation and risk assessment must be completed in accordance with a scheme to assess the nature and extent of any contamination within the Order limits and whether or not it originates within the Order limits, such scheme must be submitted to and approved by the relevant planning authority. The investigation and risk assessment must be undertaken by competent persons and a written report of the findings must be produced and submitted to and approved by the relevant planning authority.

(2) Where remediation is required pursuant to the approved investigation and risk assessment, a detailed remediation scheme to bring the relevant land to a condition suitable for the intended use must be prepared and submitted for the written approval of the relevant planning authority.

(3) The remediation scheme must be carried out as approved.

(4) Following completion of measures identified in the approved remediation scheme, a verification report that demonstrates the effectiveness of the remediation carried out must be produced and approved in writing by the relevant planning authority.

(5) Where the carrying out of any part of the authorised development has ceased pursuant to sub-paragraph (1) the undertaker may only recommence the carrying out of that part of the authorised development following—

(a)where remediation is required pursuant to the approved investigation and risk assessment for contamination affecting that part, the completion of measures pursuant to sub-paragraph (4); or

(b)in all other cases the approval of the investigation and risk assessment pursuant to sub-paragraph (2).

Construction environmental management planE+W

9.—(1) No authorised development is to commence until, following consultation with the relevant highway authority and the Environment Agency, a detailed construction environmental management plan, which is substantially in accordance with the construction environmental management plan certified under article 35 (certification of plans etc.) and Schedule 9 (documents to be certified), has been submitted to and approved by the relevant planning authority. The detailed construction environmental management plan must include measures to minimise impacts of construction works.

(2) The detailed construction environmental management plan must include a canal crossing plan detailing the measures to manage the risks of overhead power lines to anglers, bird collisions and tree works which has been agreed with the Canal & River Trust.

[F3(3) The authorised development must be carried out in accordance with the detailed construction environmental management plan.]

[F4Approved plans and amendments to approved plans]E+W

10.—(1) Where a requirement requires the authorised development to be carried out in accordance with a plan, scheme, statement, strategy or details (the “plan”) approved by the relevant planning authority, the plan must be taken to include any amendments that may be approved subsequently by the relevant planning authority (after consulting every person required to be consulted before approval of the original plan).

(2) The relevant planning authority must not approve the plan or an amendment to the plan unless it is satisfied that the plan or the amendment is unlikely to give rise to any new or materially different environmental effects from those assessed in the environmental statement.

A5(T) Traffic Management CrossingE+W

11.  No authorised development is to commence until, following consultation with Highways England, details of the construction traffic management for the temporary use of the existing A5(T) access (as shown in the Construction Accesses Location Plan, Environmental Statement: Appendix 1.4 Traffic and Transport Technical Note (July 2019)) and of the construction method for the installation of the underground cable (Work No. 2) under the A5(T) have been submitted to and approved by the relevant planning authority following written confirmation of approval of them by Highways England. The authorised works must be carried out in accordance with the details approved under this requirement.

Article 10

SCHEDULE 3E+WSTREETS SUBJECT TO STREET WORKS

Article 18

SCHEDULE 4E+WMODIFICATION OF THE COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

COMPENSATION ENACTMENTSE+W

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 set out in this Schedule, in the case of a compulsory acquisition under this Order of a right by the creation of a new right or the imposition of a restriction as they apply as respects compensation on the compulsory purchase of land and interests in land.E+W

MODIFICATION OF THE LAND COMPENSATION ACT 1973E+W

2.—(1) Without limitation on the scope of paragraph (1), the Land Compensation Act 1973 M59 has effect subject to the modification set out in sub-paragraph (2).E+W

(2) In section 44(1) M60 (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act (measure of compensation in case of severance) as substituted by paragraph 5(3)—

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

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

3.—(1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).E+W

(2) For section 5A(1) M61 of the 1961 Act, (relevant valuation date) after “if” substitute—

“(a)the acquiring authority enters on the land for the purpose of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 4 to The Reinforcement to the North Shropshire Electricity Distribution Network Order 2020); and

(b)the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 4 to the Reinforcement to The North Shropshire Electricity Distribution Network Order 2020) to acquire an interest in the land; and

(c)the acquiring authority enters on and takes possession of that land,

the authority is deemed for the purposes of subsection (3)(a) to have entered on that land where it entered on that land for the purpose of exercising that right.”

APPLICATION OF PART 1 OF THE 1965 ACTE+W

4.  Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied by section 125 (application of compulsory acquisition provisions) of the 2008 Act and modified by article 24 (modification of Part 1 of the 1965 Act)) applies to the compulsory acquisition of a right by the creation of a new right or to the imposition of a restrictive covenant under article 18 (compulsory acquisition of rights)—E+W

(a)with the modifications specified in paragraph 5; and

(b)with such other modifications as may be necessary.

5.—(1) The modifications referred to in paragraph 4(1)(a) are as follows—E+W

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

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

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

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

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

(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land)—

(a)section 9(4) (refusal to convey, failure to make title etc.);

(b)paragraph 10(3) of Schedule 1 (persons without power to sell their interests);

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

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

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

(5) Section 11 of the 1965 Act (powers of entry) is modified to secure that, where the acquiring authority has served notice to treat in respect of any right or restriction, as well as the notice of entry required by subsection (1) of that section, it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A (powers of entry: further notices of entry) M62, 11B (counter-notice requiring possession to be taken on specified date) M63, 12 (unauthorised entry) M64 and 13 (refusal to give possession to acquiring authority) M65 of the 1965 Act are modified correspondingly.

(6) Section 20 M66 of the 1965 Act (of tenants at will, etc.) applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

(7) Section 22 of the 1965 Act (interests omitted from purchase) as modified by article 24(4) is also modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or enforce the restriction imposed, subject to compliance with that section as respects compensation.

(8) For Schedule 2A to the 1965 Act substitute—

“SCHEDULE 2AE+WCOUNTER-NOTICE REQUIRING PURCHASE OF LAND

Introduction

1.—(1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and have not executed a general vesting declaration under section 4 of the 1981 Act as applied by article 22 (application of the Compulsory Purchase (Vesting Declarations) Act 1981) of The Reinforcement to the North Shropshire Electricity Distribution Network Order 2020 in respect of the land to which the notice to treat relates.

(2) But see article 23 (acquisition of subsoil or airspace only) of the Reinforcement to the North Shropshire Electricity Distribution Network Order 2020 which excludes the acquisition of subsoil or airspace only from this Schedule.

2.  In this Schedule, “house” includes any park or garden belonging to a house, except where the context otherwise requires.

Counter-notice requiring purchase of land

3.  A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner's interest in the house, building or factory.

4.  A counter-notice under paragraph 3 must be served within the period of twenty-eight days beginning with the day on which the notice to treat was served.

Response to counter-notice

5.  On receiving a counter-notice, the acquiring authority must decide whether to—

(a)withdraw the notice to treat,

(b)accept the counter-notice, or

(c)refer the counter-notice to the Upper Tribunal.

6.  The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).

7.  If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.

8.  If the authority do not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period.

9.  If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in the house, building or factory.

Determination by Upper Tribunal

10.  On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—

(a)in the case of a house, building or factory, cause material detriment to the house, building or factory, or

(b)in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.

11.  In making its determination, the Upper Tribunal must take into account—

(a)the effect of the acquisition of the right or the imposition of the covenant,

(b)the use to be made of the right or covenant proposed to be acquired or imposed, and

(c)if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.

12.  If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take.

13.  If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in that land.

14.—(1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.

(2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.

(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.”

Article 26

SCHEDULE 5E+WLAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Article 29

SCHEDULE 6E+WPROTECTIVE PROVISIONS

PART 1 E+WFOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

1.—(1) For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.E+W

(2) In this Part of this Schedule—

“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) 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 section 106(1) of the 2003 Act (application of the electronic communications code) M67;

“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.

2.  The exercise of the powers of article 29 (statutory undertakers) is subject to Part 10 of Schedule 3A M68of the 2003 Act.E+W

3.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction 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, the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage and make reasonable compensation to that operator for any other expenses, loss, or costs incurred by it, by reason, of any such damage, provided that the operator is not entitled to recover any indirect or consequential losses or losses of profits from the undertaker.E+W

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

(3) The operator must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of the undertaker which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between the undertaker and the operator under this Part of this Schedule must be referred to and settled by arbitration under article 38 (arbitration).

4.  This Part of this Schedule does not apply to—E+W

(a)any apparatus in respect of which the relations between the undertaker and an operator are regulated by the provisions of Part 3 of the 1991 Act; or

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

5.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between the undertaker and an operator in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.E+W

PART 2 E+WFOR THE PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

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

7.  In this Part of this Schedule—E+W

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

“apparatus” means—

and in each case 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;

“relevant statutory undertaker” means, in relation to any apparatus, the statutory undertaker that owns the apparatus or is responsible for its maintenance; and

“statutory undertaker” means—

for the area of the authorised development.

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

9.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker may not acquire any apparatus otherwise than by agreement with the relevant statutory undertaker.E+W

10.—(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, that apparatus must not be removed under this Part of this Schedule and any right of a statutory undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the relevant statutory undertaker.E+W

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the relevant statutory undertaker written notice of that requirement, together with a plan and section of the work proposed.

(3) If alternative apparatus or any part of such apparatus is to be constructed as a consequence of the removal of apparatus placed on the land referred to in sub-paragraph (2), the relevant statutory undertaker, must on receipt of a written notice to that effect from the undertaker, use its best endeavours to obtain the necessary facilities and rights in other land in which the alternative apparatus is to be constructed.

(4) The relevant statutory undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 38 (arbitration), and after the grant to the statutory undertaker of any such facilities and rights as are referred to in sub-paragraph (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.

(5) Regardless of anything in sub-paragraph (4), if the undertaker gives notice in writing to the relevant statutory undertaker that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus, that work, instead of being executed by the statutory undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the statutory undertaker.

(6) Nothing in sub-paragraph (5) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

11.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 10(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 10(2), the undertaker must submit to the relevant statutory undertaker a plan, section and description of the works to be executed.E+W

(2) Those works must be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the statutory undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, (declaring that these must be on land held or controlled by the relevant statutory undertaker or the undertaker and subject to them being authorised by the Order or being development permitted by an Act of Parliament or general development order made under the 1990 Act) and the statutory undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by a statutory undertaker under sub-paragraph (2) must be made within a period of 28 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If a statutory undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 4 apply as if the removal of the apparatus had been required by the undertaker under paragraph 10(2).

(5) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the relevant statutory undertaker notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

12.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to the relevant statutory undertaker the proper and reasonable expenses reasonably incurred by that statutory undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus provided that the relevant statutory undertaker is not entitled to recover any indirect or consequential losses or losses of profits from the undertaker.E+W

(2) The value of any apparatus removed under the provisions of this Part of the 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,

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 38 (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 relevant statutory undertaker 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 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 statutory undertaker in respect of works by virtue of sub-paragraph (1) 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 relevant statutory undertaker 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.

PART 3 E+WFOR THE PROTECTION OF NETWORK RAIL

13.  The following provisions of this Part have effect, unless otherwise agreed in writing between the undertaker and Network Rail.E+W

14.  In this Part—E+W

“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 amended from time to time, granted to Network Rail by the Secretary of State in exercise of the powers in section 8 M74 of the Railways Act l993;

“Network Rail” means Network Rail Infrastructure Limited (company registration number 02904587) whose registered office is at 1 Eversholt Street, London, NW1 2DN and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006 M75 (meaning of “subsidiary” etc)) 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 dates of, extent, timing and duration of any proposed occupation of railway property;

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

“railway property” means—

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

15.—(1) Where under this Part Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.E+W

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

(a)co-operate with the undertaker with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

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

16.—(1) The undertaker must not exercise the powers conferred by article 16 (authority to survey and investigate the land), article 18 (compulsory acquisition of rights), article 19 (statutory authority to override easements and other rights), article 23 (acquisition of subsoil or airspace only), article 26 (temporary use of land for carrying out the authorised development), article 27 (temporary use of land for maintaining the authorised development) and article 31 (felling or lopping of trees and removal of hedgerows) or the powers conferred by section 11(3) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.E+W

(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 under the powers of this Order extinguish any rights over any railway property except with the consent of Network Rail.

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

17.—(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 38 (arbitration).E+W

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed and if by the end of the period of 35 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 his or her 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 will be deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail must construct it 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 reasonable opinion of the engineer must be carried out before the commencement of the construction of a specified work (declaring that such protective works must be on land held or controlled by Network Rail and subject to such works being authorised by the Order or being development permitted by an Act of Parliament or general development order made under the 1990 Act) 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 work), and such protective works as may be reasonably necessary for those purposes are to be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works must be carried out at the expense of the undertaker in either case without reasonable delay, and the undertaker must not commence the construction of the specified work until the engineer has notified the undertaker that the protective works have been completed to the engineer's reasonable satisfaction.

18.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 17(3) must, when commenced, be constructed—E+W

(a)without reasonable delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 17;

(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;

(d)so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property; and

(e)so as not to interfere with the safe use of any railway of Network Rail or the traffic thereon or the safety of passengers using 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, the undertaker must, notwithstanding any such approval, make good such damage and must pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

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

19.  The undertaker must—E+W

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

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

20.  Network Rail must at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by Network Rail under this Part during their construction and must supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them.E+W

21.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction of a specified work, or during a period of 12 months after the completion of that work, in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail; and if Network Rail gives to the undertaker 56 days' 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.E+W

(2) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 22(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

(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 the saving must be set off against any sum payable by the undertaker to Network Rail under this paragraph.

22.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—E+W

(a)in constructing any part of a specified work on behalf of the undertaker as provided by any protective works under the provisions of paragraph 17(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;

(c)in respect of the employment or procurement of the services of any inspectors, signallers, watchperson 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;

(d)in respect of any special traffic working resulting from any speed restrictions which are in their opinion of the engineer, required to be imposed by reason or in consequence of the constructions or failure of a specified work 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.

23.—(1) In this paragraph—E+W

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

“Network Rail's apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised works) 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 17(1) for the relevant part of the authorised works 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 works take all reasonable measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

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

(a)the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail's apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 17(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b)Network Rail must make available to the undertaker all information in the possession of Network Rail reasonably requested by the undertaker in respect of Network Rail's apparatus identified pursuant to sub-paragraph (a); and

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

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail's apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail's apparatus, but the means of prevention and the method of their execution must be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 17(1) have effect subject to the sub-paragraph.

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

(7) In the event of EMI having occurred–

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

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

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

(8) Where Network Rail approves modifications to Network Rail's apparatus pursuant to sub-paragraphs (5) or (6) –

(a)Network Rail must allow the undertaker reasonable facilities for the inspection of the relevant part of Network Rail's apparatus;

(b)any modifications to Network Rail's apparatus approved pursuant to those sub-paragraphs must be carried out and completed by the undertaker in accordance with sub-paragraph 6.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 27(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 22(a) any modifications to Network Rail's apparatus under this paragraph will be deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article 38 (arbitration) to a single arbitrator to be agreed between the parties will be read as a reference to the Institution of Engineering and Technology.

24.  If at any time after the completion of a specified 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 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 in such state of maintenance as not adversely to affect railway property.E+W

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

26.  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 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.E+W

27.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by Network Rail—E+W

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

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

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 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 his 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 must be made without the prior consent of the undertaker.

(3) The sums payable by the undertaker under sub-paragraph (1) must 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, save 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) Nothing in this Part imposes any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the act, omission, default or negligence of Network Rail or its servants, contractors or agents.

(6) 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.

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

(8) 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 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 of the Railways Act 1993.

28.  Network Rail must, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Schedule (including the amount of the relevant costs mentioned in paragraph 27) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to he made pursuant to this Schedule (including any claim relating to those relevant costs).E+W

29.  In the assessment of any sums payable to Network Rail under this Part, no account must be taken of 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 or was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part or increasing the sums so payable.E+W

30.  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 or grant to the undertaker of—E+W

(a)any railway property shown on the works and 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.

31.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part 1 of the Railways Act 1993.E+W

32.  The undertaker must give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State's consent under article 8 (consent to transfer benefit of the Order) of this Order, and any such notice must be given no later than 28 days before any such application is made and must describe or give (as appropriate)—E+W

(a)the nature of the application to be made;

(b)the extent of the geographical area to which the application relates; and

(c)the name and address of the person acting for the Secretary of State to whom the application is to be made.

33.  The undertaker must no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 35 (certification of plans etc.) and Schedule 9 (documents to be certified) are certified by the Secretary of State, provide a set of those plans to Network Rail in a format specified by Network Rail.E+W

PART 4 E+WFOR THE PROTECTION OF CANAL & RIVER TRUST

InterpretationE+W

34.—(1) For the protection of the Trust the following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the Trust.

(2) In this Part of this Schedule—

“Code of Practice” means the Code of Practice for Works Affecting the Canal & River Trust (April 2018) as amended from time to time;

“construction”, in relation to any specified work or protective work undertaken as part of the authorised development includes—

“detriment” means any damage to the waterway or any other property of the Trust caused by the presence of the authorised development and, without prejudice to the generality of that meaning, includes—

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

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

“protective work” means a work constructed under paragraph 36(2)(a) and “protective works” is to be construed accordingly;

“specified work” means so much of the authorised development as is situated upon, across, under, over or within 150 metres of, or may in any way affect the waterway and “specified works” is to be construed accordingly;

“towpath” means the towpath forming part of the waterway;

“the Trust” means the Canal & River Trust;

“the Trust's network” means the Trust's network of waterways; and

“the waterway” means the Montgomery Canal, and includes any works, lands or premises belonging to the Trust, or under its management or control, and held or used by the Trust in connection with that navigation.

(3) Where the Code of Practice applies to any works or matter that are part of the authorised development or that form part of the protective works and there is an inconsistency between these protective provisions and the Code of Practice, the part of the Code of Practice that is inconsistent with these protective provisions will not apply and these protective provisions will apply.

Powers requiring the Trust's consentE+W

35.—(1) The undertaker must not in the exercise of the powers conferred by this Order obstruct or interfere with pedestrian or vehicular access to the waterway or towpath unless such obstruction or interference with such access is with the consent of the Trust.

(2) The undertaker must not exercise any power conferred by this Order to discharge water into the waterway under article 15 (discharge of water) or in any way interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of the Trust.

(3) The undertaker must not exercise the powers conferred by article 16 (authority to survey and investigate land) or section 11(3) of the 1965 Act (powers of entry), in relation to the waterway unless such exercise is with the consent of the Trust.

(4) The undertaker must not exercise the powers conferred by this Order to temporarily stop up streets or public rights of way under article 11 (temporary prohibition or restriction of use of streets and public rights of way) so as to divert any right of access to or any right of navigation along the waterway but such right of access may be diverted with the consent of the Trust.

(5) The consent of the Trust pursuant to sub-paragraphs (1) to (4) must not be unreasonably withheld or delayed but may be given subject to reasonable terms and conditions including any condition requiring compliance with the Code of Practice or any applicable part thereof and any condition which required the payment of such charges/fees/costs as are typically charged by the Trust and in the case of article 15 it is reasonable to impose the following non-exhaustive conditions—

(a)requiring the payment of such charges as are typically charged by the Trust;

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

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

(6) The undertaker must not exercise the powers conferred by this Order to abstract water from the Montgomery Canal unless such abstraction is with the consent of the Trust. Such consent may be given subject to reasonable terms and conditions including specifying the maximum velocity of the flow of water which may be abstracted at right angles to the waterway at any time.

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

(8) The undertaker must not move the location of any pole structure within a specified work without the consent of the Trust.

(9) The undertaker must comply with the code of practice in relation to the construction and operation of a specified work or protective work.

(10) The undertaker must not deviate vertically from the levels of the authorised development set out in Table 1 of requirement 3 in respect of any specified work without the consent of the Trust.

(11) The undertaker must not exercise the power conferred by article 31 (felling or lopping of trees and removal of hedgerows) in respect of any tree, shrub or hedgerow within an area of a specified work unless such power is exercised with the consent of the Trust.

(12) The construction hours in respect of any specified work must be agreed in writing with the Trust.

(13) In the event that any contamination which could impact upon the waterway is found when carrying out the authorised development, the undertaker must notify the Trust immediately and must agree with the Trust the remediation require to be undertaken. The undertaker must complete the remediation works at its own cost in accordance with timescales agreed with the Trust.

(14) Except in the case of emergencies, the undertaker must provide the Trust with 28 days written notice before interfering with the waterway for the purposes of maintaining or inspecting the authorised development and must comply with any reasonable conditions which the Trust may impose in accordance with the Code of Practice.

Approval of plans, protective works etc.E+W

36.—(1) Before commencing construction of any specified works including any temporary works, the undertaker must supply to the Trust proper and sufficient plans of that work, the form and application fee which is ordinarily required by the Trust's engineer in accordance with the Code of Practice and such further particulars available to it as the Trust may within 28 days of the submission of the plans reasonably require for the approval of the engineer and must not commence such construction of a specified work until plans of that work have been approved in writing by the engineer or settled by arbitration and for the avoidance of doubt the approval of the engineer may be subject to any reasonable conditions including a requirement that the specified work is undertaken at a reasonable time specified by the engineer.

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed. When signifying approval of the plans the engineer may specify on land held or controlled by the Trust or the undertaker and subject to such works being authorised by the Order or being development permitted by an Act of Parliament or general development order made under the 1990 Act—

(a)any protective work (whether temporary or permanent) which in the reasonable opinion of the engineer should be carried out before the commencement of a specified work to prevent detriment; and

(b)such other requirements as may be reasonably necessary to prevent detriment;

and such protective works must be constructed by the undertaker or by the Trust at the undertaker's request with all reasonable dispatch and the undertaker must not commence the construction of a specified work until the engineer has notified the undertaker that the protective works have been completed to the engineer's reasonable satisfaction such consent not to be unreasonably withheld or delayed.

(3) The undertaker must pay to the Trust a capitalised sum representing the reasonably increased or additional cost of maintaining and, when necessary, renewing any works, including any permanent protective works provided under sub-paragraph (2) above, and of carrying out any additional dredging of the waterway reasonably necessitated by the exercise of any of the powers under this Order but if the cost of maintaining the waterway, or of works of renewal of the waterway, is reduced in consequence of any such works, a capitalised sum representing such reasonable saving is to be set off against any sum payable by the undertaker to the Trust under this paragraph.

(4) In the event that the undertaker fails to complete the construction of, or part of, the specified works the Trust may, if it is reasonably required in order to avoid detriment, serve on the undertaker a notice in writing requesting that construction be completed. Any notice served under this sub-paragraph must state the works that are to be completed by the undertaker and lay out a reasonable timetable for the works' completion. If the undertaker fails to comply with this notice within 35 days, the Trust may construct any of the specified works, or part of such works, (together with any adjoining works) in order to complete the construction of, or part of, the specified works or make such works and the undertaker must reimburse within 28 days to the Trust all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.

Design of worksE+W

37.  Without prejudice to its obligations under the foregoing provisions of this Part of this Schedule the undertaker must consult, collaborate and respond constructively to any reasonable approach, suggestion, proposal or initiative made by the Trust on—

(a)the design and appearance of the specified works or protective works including the materials to be used for their construction; and

(b)the environmental effects of those works; and must have regard to such views as may be expressed by the Trust in response to such consultation pursuant in particular to the requirements imposed on the Trust by section 22 (general environmental and recreational duties) of the British Waterways Act 1995 M76 and to the interest of the Trust in preserving and enhancing the environment of its waterways.

Notice of worksE+W

38.  The undertaker must give to the engineer 28 days' notice of its intention to commence the construction of any of the specified or protective works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable so that, in particular, the Trust may where appropriate arrange for the publication of notices bringing those works to the attention of users of the Trust's network.

Construction of specified worksE+W

39.—(1) Any specified or protective works must, when commenced, be constructed—

(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled as aforesaid and with any specifications made under paragraph 36 and paragraph 37 of this Part;

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

(c)in such manner as to cause as little detriment as is reasonably practicable;

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

(e)in such a manner so as to ensure that no materials are discharged or deposited into the waterway otherwise than in accordance with article 15 (discharge of water); and

(f)in compliance with the Code of Practice, if relevant.

(2) Nothing in this Order authorises the undertaker to make or maintain any permanent works in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which the Trust is required by section 105(1)(b) and (2) of the Transport Act 1968 M77 (maintenance of waterways) to maintain the waterway.

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

Prevention of pollutionE+W

40.  The undertaker must not in the course of constructing the authorised development or a protective work or otherwise in connection therewith do or permit anything which may result in the pollution of the waterway or the deposit of materials therein and must take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph.

Access to work – provision of informationE+W

41.—(1) The undertaker on being given reasonable notice must—

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

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

(2) The Trust on being given reasonable notice must—

(a)at all times afford reasonable facilities to the undertaker and its agents for access to any works carried out by the Trust under this Part of this Schedule during their construction; and

(b)supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them and the undertaker must reimburse the Trust's reasonable costs in relation to the supply of such information.

Alterations to the waterwayE+W

42.—(1) If during the construction of a specified work or a protective work or during a period of 12 months after the completion of those works any alterations or additions, either permanent or temporary, to the waterway are reasonably necessary in consequence of the construction of the specified work or the protective work in order to avoid detriment, and provided that the Trust gives to the undertaker 56 days' notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to the Trust the reasonable costs of those alterations or additions including, in respect of any such alterations or additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by the Trust in maintaining, working and, when necessary, renewing any such alterations or additions.

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

Maintenance of worksE+W

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

Repayment of the Trust's fees, etc.E+W

44.—(1) The undertaker must repay to the Trust in accordance with the Code of Practice all fees, costs, charges and expenses reasonably incurred by the Trust—

(a)in constructing any protective works under the provisions of paragraphs 36(2)(a) or 36(4);

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

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

(d)in bringing the specified works or any protective works to the notice of users of the Trust's network; and

(e)in constructing or carrying out any measures related to any specified works or protective works which are reasonably required by the Trust to ensure the safe navigation of the waterway save that nothing is to require the Trust to construct or carry out any measures.

(2) If the Trust considers that a fee, charge, cost or expense will be payable by the undertaker pursuant to sub-paragraph (1), the Trust will first provide an estimate of that fee, charge, cost or expense and supporting information in relation to the estimate to the undertaker along with a proposed timescale for payment for consideration and the undertaker may, within a period of 21 days—

(a)provide confirmation to the Trust that the estimate is agreed and pay to the Trust, by the date stipulated, that fee, charge, cost or expense; or

(b)provide confirmation to the Trust that the estimate is not accepted along with a revised estimate and a proposal as to how or why the undertaker considers that the estimate can be reduced and or paid at a later date.

(3) The Trust must take into account any representations made by the undertaker and must, within 21 days of receipt of the information pursuant to sub-paragraph (1), confirm the amount of the fee, charge, cost or expense to be paid by the undertaker (if any) and the date by which this is to be paid.

(4) The Trust must, when estimating and incurring any charge, cost or expense pursuant to sub-paragraph (1), do so with a view to being reasonably economic and acting as if the Trust were itself to fund the relevant fee, charge, cost or expense.

Making good of detriment; compensation and indemnity, etc.E+W

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

(a)by reason of any detriment caused by the construction of a specified work or a protective work or the failure of such a work; or

(b)by reason of any act of omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction of a specified work or protective work; and subject to sub-paragraph (2) the undertaker must effectively indemnify and hold harmless the Trust from and against all claims and demands arising out of or in connection with any of the matters referred to in Part 4 of this Schedule save that the Trust will not be entitled to recover any consequential losses which are not reasonably foreseeable.

(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 neglect, act or default of the Trust, its officers, servants, contractors or agents. The fact that any act or thing may be done by the Trust 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 or in accordance with any directions or awards of an arbitrator must not (if it was done without negligence on the part of the Trust or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this paragraph.

(3) The Trust must give the undertaker reasonable notice of any such claim or demand as aforesaid and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

ArbitrationE+W

46.  Any difference arising between the undertaker and the Trust under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) must be referred to and settled by arbitration in accordance with article 38 (arbitration) of this Order.

Capitalised sumsE+W

47.  Any capitalised sum which is required to be paid under this Part of this Schedule must be calculated by multiplying the cost of the maintenance or renewal works to the waterway necessitated as a result of the operation of the authorised development by the number of times that the maintenance or renewal works will be required during the operation of the authorised development.

Vehicles, plant and machineryE+W

48.  The undertaker must not use any land or property of the Trust forming part of the waterway for the passage or siting of vehicles, plant or machinery employed in the construction of the specified works other than—

(a)with the consent in writing of the engineer whose consent must not be unreasonably withheld or delayed and such consent may be subject to conditions including any condition which requires the payment of a fee; and

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

(i)for the prevention of detriment; or

(ii)in order to avoid or reduce any inconvenience to the Trust, its officers and agents or the users of the waterway.

FencingE+W

49.  Where so required by the engineer and where that requirement has been evidenced in writing the undertaker must to the reasonable satisfaction of the engineer and upon providing reasonable notice of not less than 28 days fence off a specified work or a protective work or take such other steps as the engineer may reasonably require to be taken for the purpose of separating a specified work or a protective work from the waterway, whether on a temporary or permanent basis or both.

Survey of waterwayE+W

50.—(1) Before the commencement of construction of any part of the specified works and again following practical completion of the specified works the undertaker will appoint a surveyor (“the surveyor”) at the undertaker's cost, to be approved by the Trust and the undertaker, who must undertake a survey including a dip-survey to measure the depth of the waterway (“the survey”) or so much of the waterway and of any land and existing works of the undertaker which may provide support for the waterway as will or may be affected by the specified works.

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

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

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

(3) The reasonable costs of the survey must include the costs of any dewatering or reduction of the water level of any part of the waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey and the provisions of Part 4 of this Schedule will apply with all necessary modifications to any such dewatering or reduction in the water level as though the same were specified works.

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

Further engagementE+W

51.  The undertaker will continue to engage with the Trust in relation to the acquisition of the necessary rights and interests from the Trust by private treaty.

PART 5 E+WFOR THE PROTECTION OF NATIONAL GRID AS ELECTRICITY UNDERTAKER

ApplicationE+W

52.  The following provisions have effect for the protection of National Grid unless otherwise agreed in writing between the undertaker and National Grid.

InterpretationE+W

53.  In this Part of this Schedule—

“acceptable insurance” means a third party liability insurance effected and maintained by the undertaker with a limit of indemnity of not less than £10,000,000.00 (ten million pounds) per occurrence or series of occurrences arising out of one event. Such insurance must be maintained for the construction period of the authorised development which constitute specified works and arranged with an internationally recognised insurer of repute operating in the London and worldwide insurance market underwriters whose security/credit rating meets the requirements of an “acceptable provider”, such policy must include (but without limitation):

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

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

“apparatus” means electric lines or electrical plant as defined in the Electricity Act 1989, belonging to or maintained by National Grid 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 development” has the same meaning as is given to the term “authorised development” in article 2 of this Order and includes any associated development authorised by the Order and for the purposes of this Part of this Schedule includes the use and maintenance of the authorised development and construction of any works authorised by this Schedule;

“commencement” has the same meaning as in paragraph 1 of Schedule 2 (requirements) to the Order and commence will be construed to have the same meaning save that for the purposes of Part 5 of this Schedule only the term commence and commencement will include any below ground surveys, monitoring or operations or receipt and erection of construction plant and equipment within 15 metres of any apparatus;

“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;

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

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

“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;

“National Grid” means National Grid Electricity Transmission PLC (Company No. 2366977) whose registered office is at 1-3 Strand, London, WC2N 5EH or any of its entities or successor entities;

“specified works” means any of the authorised development or activities undertaken in association with the authorised development which—

On Street ApparatusE+W

54.  Except for paragraphs 58, 59 and 60 of this Schedule which will apply in respect of the exercise of all or any powers under the Order affecting the rights and apparatus of National Grid, the other provisions of this Schedule do not apply to apparatus in respect of which the relations between the undertaker and National Grid are regulated by the provisions of Part 3 of the 1991 Act.

Acquisition of landE+W

55.—(1) Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker may not appropriate or acquire or take temporary possession of any land interest or appropriate, acquire, extinguish, interfere with or override any easement, other interest or right or apparatus of National Grid without the consent of National Grid, which must not be unreasonably withheld or delayed.

(2) As a condition of agreement between the parties in sub-paragraph (1), prior to the carrying out of any part of the authorised development (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 will be the responsibility of the undertaker to procure or secure the consent and entering into of such deeds and variations by all other third parties with an interest in the land at that time who are affected by such authorised development.

(3) Where there is any inconsistency or duplication between the provisions set out in Part 5 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 Part 5 of this Schedule will prevail.

(4) No agreement or consent granted by National Grid under any other paragraph of Part 5 of this Schedule constitutes agreement under sub-paragraph (1).

Removal of apparatusE+W

56.—(1) If, in the exercise of the agreement reached in accordance with paragraph 55 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 accordance with sub-paragraphs (2) to (5) inclusive.

(2) If, for the purpose of executing any specified 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 at least 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), secure any necessary consents for the alternative apparatus and afford to National Grid to its satisfaction (taking into account paragraph 57(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 use and maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of or land secured by the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, National Grid must, on receipt of a written notice to that effect from the undertaker, take such steps as are reasonable in the circumstances in an endeavour to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed save that this obligation does not extend to the requirement for the National Grid to seek or use any 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 prior grant to National Grid of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

(6) 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 Part 5 of this Schedule will prevail.

Facilities and rights for alternative apparatusE+W

57.—(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) above in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are less favourable on the whole to National Grid than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject in the matter will be referred to arbitration in accordance with paragraph 64 of this Part of this Schedule and the arbitrator must make such provision for the payment of compensation by the undertaker to National Grid as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: Protection of National Grid as Electricity UndertakerE+W

58.—(1) Not less than 56 days before the commencement of any specified work that is near to or will or may affect any apparatus, the removal of which has not been required by the undertaker under paragraph 56(2), 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 specified works which will or may be situated on, over, under or within (i) 15 metres measured in any direction of any apparatus, or (ii) involve embankment works within 15 metres of any apparatus, the plan to be submitted to National Grid under sub-paragraph (1) must include a method statement and show and describe—

(a)the exact position of the specified works;

(b)the level at which the specified works are proposed to be constructed or renewed;

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

(d)the position of all apparatus;

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

(f)any intended maintenance regimes; and

(g)an assessment of risks of rise of earth issues.

(3) In relation to any works which will or may be situated on, over, under or within 10 metres of any part of the foundations of an electricity tower or between any two or more electricity towers, the plan to be submitted under sub-paragraph (1) must, include a method statement which, in addition to the matters set out in sub-paragraph (2), must—

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

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

(c)describe details of load bearing capacities of trenches;

(d)describe details of cable installation methodology including access arrangements, jointing bays and backfill methodology;

(e)provide a written management plan for high voltage hazard during construction and ongoing maintenance of the cable route;

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

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

(h)provide evidence that 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-paragraphs (2) or (3) apply until National Grid has given written approval of the plan so submitted provided that National Grid will not unreasonably delay notification of its approval or disapproval.

(5) Any approval of the National Grid required under sub-paragraphs (2) or (3)—

(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 or delayed.

(6) In relation to any work requiring the submission of a plan under sub-paragraph (1), 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 and National Grid must notify the undertaker of such modifications within a period of 56 days beginning with the date on which the plan required under sub-paragraph (1) has been submitted to National Grid.

(7) Works requiring the submission of a plan under sub-paragraph (1) must only be executed in accordance with the plan 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 (5), (6), (8) or (9) by National Grid for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and National Grid will be entitled to watch and inspect the execution of those works.

(8) Where National Grid reasonably requires any protective works to be carried out by itself or by the undertaker (whether of a temporary or permanent nature) such protective works, inclusive of any measures or schemes required and approved as part of the plan approved pursuant to this paragraph, must be carried out to National Grid's satisfaction prior to the commencement of any authorised development (or any relevant part thereof) for which protective works are required and National Grid must give 56 days' notice of such works from the date of submission of a plan pursuant to this paragraph (except in an emergency).

(9) If National Grid in accordance with sub-paragraphs (6) or (8) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, sub-paragraphs (1) to (3) and (5) to (7) apply as if the removal of the apparatus had been required by the undertaker under paragraph 56(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 development, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph will apply to and in respect of the new plan.

(11) The undertaker will not be 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 the 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) insofar 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”.

ExpensesE+W

59.—(1) Subject to the following provisions of this paragraph, the undertaker must pay to National Grid on demand all reasonable charges, costs and expenses reasonably anticipated or incurred by National Grid in consequence of the execution of any authorised development including without limitation in respect of:—

(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 56(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) There will be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule and which is not re-used as part of the alternative apparatus, that value being calculated after removal.

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 38 (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.

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

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

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

(5) An amount which apart from this sub-paragraph would be payable to National Grid in respect of works by virtue of sub-paragraph (1) will, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on National Grid any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

IndemnityE+W

60.—(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 development by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Part of this Schedule or any subsidence resulting from any of these works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of the authorised development) or property of National Grid the undertaker is liable for the cost reasonably incurred by National Grid in making good such damage, or there is any interruption in any service provided, or in the supply of any goods by National Grid, or National Grid becomes liable to pay any amount to any third party, the undertaker will—

(a)bear and pay on demand 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, penalties 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 this sub-paragraph (1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan (or as otherwise agreed between the undertaker and National Grid pursuant to paragraph 59).

(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 development or any other works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of National Grid with the benefit of the Order pursuant to section 156 of the Planning Act 2008 (benefit of order granting development consent) or article 8 (consent to transfer benefit of the Order) subject to the proviso that once such works become apparatus (“new apparatus”), any authorised development yet to be executed and not falling within this sub-paragraph 3(b) will be subject to the full terms of Part 5 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 must, unless payment is required in connection with a statutory compensation scheme, be made without first consulting the undertaker and considering its representations.

(5) The undertaker must not commence construction (and must not permit the commencement of such construction) of the authorised development on any land in respect of which National Grid has an easement or wayleave for its apparatus or any other interest or carry out any works within 15 metres of National Grid's apparatus unless and until National Grid is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to National Grid that it must maintain such acceptable insurance for the construction period of the authorised development from the proposed date of commencement of construction of the authorised development) and National Grid has confirmed the same in writing to the undertaker.

(6) In the event that the undertaker fails to comply with sub-paragraph (5), nothing in Part 5 of this Schedule will prevent National Grid from seeking injunctive relief (or any other equitable remedy) in any court of competent jurisdiction.

Enactments and agreementsE+W

61.  Save 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 will affect 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-operationE+W

62.—(1) Where in consequence of the proposed construction of any of the authorised development, the undertaker or National Grid requires the removal of apparatus under paragraph 56(2) or National Grid makes requirements for the protection or alteration of apparatus under paragraph 58, 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 to 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.

AccessE+W

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

ArbitrationE+W

64.  Save for differences or disputes arising under paragraphs 56(2), 56(4), 57(1), 58 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 38 (arbitration).

NoticesE+W

65.  The plans submitted to National Grid by the undertaker pursuant to paragraph 58(1) must be sent to National Grid Plant Protection at plantprotection@nationalgrid.com or such other address as National Grid may from time to time appoint instead for that purpose and notify to the undertaker in writing.

PART 6 E+WFOR THE PROTECTION OF HIGHWAYS ENGLAND

ApplicationE+W

66.  The provisions of this Part of this Schedule apply to the HE works and have effect unless otherwise agreed in writing between the undertaker and Highways England.

InterpretationE+W

67.—(1) Where terms defined in article 2 are inconsistent with the terms defined in sub-paragraph (2) below, the latter prevail.

(2) In this Part of this Schedule—

“the contractor” means any contractor or sub-contractor appointed by the undertaker to construct the HE works;

“the detailed design information” means details of the following where applicable to the HE works—

“DMRB” means the Design Manual for Roads and Bridges or any replacement or modification of it;

“the estimated costs” means the estimated costs in respect of the HE works agreed pursuant to paragraph 70 of this Schedule;

“the HE works” means the part of Work No.2 of the authorised development which directly affects the A5(T) near Long Wood at Middleton being the directional drilling and installation of an underground cable conduit and 132kV cable under the A5(T);

“the nominated persons” means the undertaker's representatives or the contractor's representatives on site during construction of the HE works, as notified to Highways England from time to time;

“the programme of works” means a document setting out the sequence and timetabling of the HE works; and

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

Prior approvalsE+W

68.—(1) The HE works must not commence until—

(a)the detailed design of the HE works comprising of the following details has been submitted to and approved by Highways England—

(i)the detailed design information;

(ii)the programme of works;

(iii)details of proposed road space bookings;

(iv)a scheme of traffic management; and

(v)the identity of the contractor and nominated persons.

(b)all necessary temporary traffic regulation measures have been made by the undertaker under article 11(1) (temporary prohibition or restriction of use of streets and public rights of way) or 12(3) (traffic regulation), or all necessary temporary traffic regulation orders have been made by Highways England;

(c)at least 28 days' notice of the commencement date of the HE works has been given to Highways England in writing, unless otherwise agreed by Highways England.

(2) Highways England must use its best endeavours to notify the undertaker of its approval or, as the case may be, of its disapproval and the grounds of disapproval, within 42 days of the information required by sub-paragraph (1)(a) being received by Highways England. Highways England must give reasons for any disapproval and must not unreasonably delay its approval to the undertaker.

(3) In the event of any disapproval, the undertaker may re-submit the information required by sub-paragraph (1)(a) with modifications and Highways England must use its best endeavours to notify the undertaker of its approval or, as the case may be, of its disapproval and the grounds of disapproval, within 42 days of the revised detailed design information being received by Highways England. Highways England must give reasons for any further disapproval and must not unreasonably withhold or delay consent.

(4) The documents and programmes approved under sub-paragraphs (1) and (2) may be subsequently amended by agreement between the undertaker and Highways England from time to time, both parties acting reasonably.

(5) Within 28 days of receipt of a written request by the undertaker and in any event prior to the commencement of the HE works, Highways England must inform the undertaker of the identity of the person who will act as the point of contact on behalf of Highways England for consideration of the information required under sub-paragraph (1).

Construction of the HE worksE+W

69.—(1) The HE works must be constructed to the satisfaction of Highways England acting reasonably and in accordance (where relevant) with—

(a)the information approved under paragraph 68(1) or as subsequently varied by agreement between the undertaker and Highways England;

(b)the DMRB and the Specification for Highway Works (contained within the Manual of Contract Documents for Highways Works) together with all other relevant standards as required by Highways England (to include all relevant interim advice notes, the Traffic Signs Manual 2008 and any amendment to or replacement of such standards for the time being in force), save to the extent that exceptions to those standards apply which have been approved by Highways England under paragraph 68(1) in respect of the HE works;

(c)the Traffic Signs Regulations and General Directions 2016 or any amendment to or replacement of them; and

(d)all aspects of the Construction (Design and Management) Regulations 2015 M78 or any amendment to or replacement of them.

(2) The undertaker must permit and must require the contractor to permit at all reasonable times persons authorised by Highways England (whose identity must have been previously notified to the undertaker and the contractor by Highways England) to gain access to the HE works for the purposes of inspection and supervision of the HE works.

(3) The undertaker must permit and must require the contractor to act upon any reasonable request made by Highways England in relation to the construction of the HE works as soon as reasonably practicable provided such a request is not inconsistent with and does not fall outside the contractor's obligations under its contract with the undertaker or the undertaker's obligations under this Order.

(4) If any part of the HE works is constructed otherwise than in accordance with the requirements of this Part of this Schedule, Highways England may by notice in writing require the undertaker, at the undertaker's own expense, to comply with the requirements of this Part of this Schedule.

(5) If within 28 days of the date on which a notice under sub-paragraph (4) is served on the undertaker, the undertaker has failed to take the steps required by that notice, Highways England may carry out works to reinstate the highway and other land and premises of Highways England, and Highways England may recover from the undertaker any expenditure reasonably incurred by it in so doing.

(6) If during construction of the HE works the undertaker causes any damage to the A5(T) then Highways England may by notice in writing require the undertaker, at the undertaker's own expense, to remedy the damage.

(7) If within 28 days of the date on which a notice under sub-paragraph (6) is served on the undertaker, the undertaker has failed to take steps to comply with the notice, Highways England may carry out the steps required of the undertaker and may recover from the undertaker any expenditure reasonably incurred by Highways England in so doing.

(8) Nothing in this Part of this Schedule prevents Highways England from carrying out any work or taking such action as it reasonably believes to be necessary as a result of the construction of the HE works without prior notice to the undertaker in the event of an emergency or to prevent the occurrence of danger to the public and Highways England may recover from the undertaker any reasonable expenditure incurred by Highways England in so doing.

(9) In constructing the HE works, the undertaker must at its own expense divert or protect all utilities and all agreed alterations and reinstatement of highway over existing utilities must be constructed to the reasonable satisfaction of Highways England.

PaymentsE+W

70.—(1) The undertaker must fund the full cost of the HE works and any incidental and amended works approved under this Part of this Schedule and must also pay to Highways England in respect of the HE works a sum equal to the whole of any costs and expenses which Highways England reasonably incurs (including costs and expenses for using internal or external staff) in relation to—

(a)the checking and approval of the information required by paragraph 68(1)(a);

(b)the supervision of the HE works;

(c)all legal and administrative costs in relation to sub-paragraph (1) (a) and (b);

(d)any costs incurred by Highways England in undertaking any necessary statutory procedure required as a result of construction of the HE works, and in preparing and bringing into force any traffic regulation order necessary to construct or implement the HE works, provided that this paragraph will not apply to the making of any orders which duplicate traffic regulation measures contained in, or which may be made by the undertaker under, this Order; and

(e)any value added tax which is payable by Highways England in respect of the costs incurred pursuant to sub-paragraph(1) which Highways England cannot otherwise recover from HM Revenue and Customs,

sub-paragraph (1) (a) to (e) together comprising “the estimated costs”.

(2) The undertaker and Highways England must, acting reasonably, agree a schedule of the estimated costs prior to the commencement of the HE works and once that schedule is agreed the undertaker must pay to Highways England the estimated costs in line with the agreed schedule.

(3) Highways England is not entitled to costs or expenses incurred under any part of sub-paragraph (1) if those costs or expenses are included as part of the estimated costs under any other part of sub-paragraph (1).

IndemnityE+W

71.—(1) The undertaker must in relation to the construction of the HE works indemnify Highways England from and against all costs, expenses, damages, losses and liabilities arising from any claim, demand, action or proceedings resulting from damage caused by the construction of the HE works provided that—

(a)Highways England notifies the undertaker immediately upon receipt of any such claim, demand, action or proceedings;

(b)unless Highways England is otherwise required to do so sooner as a requirement in law or to comply with any order of the court, Highways England must prior to the settlement or compromise of any such claim, demand, action or proceedings consult the undertaker and have regard to any representations made by the undertaker in respect of any such claim, demand, action or proceedings; and

(c)following the acceptance of any such claim, demand, action or proceedings, Highways England notifies the undertaker of the quantum in writing.

(2) Sub-paragraph (1) does not apply if the costs, expenses, damages, losses and liabilities were caused by or arise out of the act, neglect or default of Highways England or its officers, servants, agents, contractors or any person or body for whom it is responsible.

(3) Highways England must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, damages, losses and liabilities to which the indemnity under this paragraph applies.

(4) In no circumstances is the undertaker liable to Highways England under this Part of this Schedule for any indirect or consequential loss or loss of profits.

ArbitrationE+W

72.  Any difference or dispute arising between the undertaker and Highways England under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and Highways England, be determined by arbitration in accordance with article 38 (arbitration).

Article 37

SCHEDULE 7E+WPROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under requirementsE+W

1.—(1) Where an application has been made to the relevant planning authority for any consent, agreement or approval required by a requirement the relevant planning authority must give notice to the undertaker of its 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, 42 days from the day immediately following that on which the application is received by the relevant planning authority;

(b)where further information is requested under paragraph 2, 42 days from the day immediately following that on which the 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 relevant planning authority in writing before the end of the period in sub-paragraph (2) (a) or (b).

(3) Notice under sub-paragraph (1) above must be in writing and where the notice is a refusal the notice must provide the relevant planning authority's reasons for refusal.

Further informationE+W

2.—(1) In relation to any application to which this Schedule applies, the relevant planning 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 relevant planning authority considers such further information to be necessary it must, within 10 business days of receipt of the application, notify the undertaker in writing specifying the further information required.

(3) If the relevant planning 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.

FeesE+W

3.—(1) Where an application is made to the relevant planning authority for consent, agreement or approval in respect of a requirement, a fee of £116 is to be paid to that authority.

(2) Any fee paid under this Schedule must be refunded to the undertaker within 42 days of—

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

(b)the relevant planning 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 relevant planning authority and credited in respect of a future application.

AppealsE+W

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

(a)the relevant planning authority refuses an application for any consent, agreement or approval required by a requirement included in this Order or grants it subject to conditions;

(b)the relevant planning authority does not give notice of its decision to the undertaker within the decision period specified in 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 relevant planning authority is not necessary for consideration of the application; or

(d)on receipt of any further information requested, the relevant planning 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 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 and must on the same day provide copies of the appeal documentation to the relevant planning authority and the requirement consultees;

(c)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;

(d)the relevant planning authority and the requirement consultees must submit written representations to the appointed person in respect of the appeal within 20 business days of the date on which the appeal parties are notified of the appointment of a person under paragraph (c) 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; and

(e)the appeal parties must make any counter-submissions to the appointed person within 20 business days of receipt of written representations under sub-paragraph (2) (d).

(3) The appointment of the person pursuant to sub-paragraph (2) (c) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.

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

(7) The appointed person may—

(a)allow or dismiss the appeal; or

(b)reverse or vary any part of the decision of the relevant planning 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.

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

(9) The appointed person may proceed to a decision even though no written representations have been made within the prescribed 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.

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

(11) If an approval is given by the appointed person under this Schedule, it is deemed to be an approval for the purpose of Schedule 2 (requirements) as if it had been given by the relevant planning authority. The relevant planning 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.

(12) Except where a direction is given under sub-paragraph (13) requiring the costs of the appointed person to be paid by the relevant planning authority, the reasonable costs of the appointed person are to be met by the undertaker.

(13) On application by the relevant planning 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 on appeals published on 3 March 2014 from the Ministry of Housing, Communities and Local Government or any circular or guidance which may from time to time replace it.

Interpretation of Schedule 7E+W

5.  In this Schedule—

“the appeal parties” means the relevant planning authority, the undertaker and any requirement consultees.

“business day” means a day other than Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971;

“requirement consultee” means any body named in a requirement which is the subject of an appeal as a body to be consulted by the relevant planning authority in discharging that requirement.

Article 31

SCHEDULE 8E+WREMOVAL OF IMPORTANT HEDGEROWS

Article 35

SCHEDULE 9E+WDOCUMENTS TO BE CERTIFIED

The Book of Reference listed below—

The Land Plans listed below—

The Works Plans listed below—

The Access and Rights of Way Plans listed below—

The Plans of Important Hedgerows Affected

The additional documents listed below—

Explanatory Note

(This note is not part of the Order)