The Hinkley Point C (Nuclear Generating Station) Order 2013

Article 47

SCHEDULE 15For the protection of the Environment Agency

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

(2) Where any consent, approval or agreement is required to be given by the Agency in relation to any part of the authorised project, other than under the terms of this Order, the terms of this Schedule shall apply.

(3) In this Schedule—

“the Agency” means the Environment Agency;

“completion” in relation to any work means the date on which it is brought into use;

“consented work” means a work that is required to be consented under the terms of the Water Resources Act 1991, the Land Drainage Act 1991 or the Wessex Water Authority Land Drainage Byelaws irrespective of any status as a statutory undertaker under those provisions;

“damage” includes scouring and erosion and “damaged” shall be construed accordingly;

“drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment, outfall or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

“erosion” means any erosion of the bed or shore of the sea or of the bed or banks of any river;

“outfall” means—

“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows (whether or not the flow is intermittent) except a public sewer.

Surveys and maintenance of drainage works

2.—(1) Before commencing the construction of a consented work liable to affect a drainage work, the undertaker shall procure at its expense, in liaison with and to the reasonable satisfaction of the Agency, a survey of any drainage work liable to be affected by that consented work.

(2) Subject to sub-paragraph (3), the undertaker shall, from the commencement of the construction of any consented work and except to the extent that any approval given by the Agency under this Schedule permits otherwise, maintain in good repair and condition and free from obstruction any drainage work which is already in existence which is situated within the limits of deviation and on land owned by the undertaker or which it otherwise has control of or is in occupation of for the purposes of or in connection with the consented work.

(3) The obligation imposed on the undertaker by sub-paragraph (2) does not apply where the Agency or another person other than the undertaker is liable to maintain the drainage work in question and is not precluded by the exercise of the powers of this Order from doing so.

(4) If any drainage work referred to in sub-paragraph (2) is not maintained in good repair and condition and free from obstruction the Agency may by notice in writing require the undertaker to repair and restore that drainage work, or any part of it, or (if the undertaker so elects and the Agency in writing consents), to remove the drainage work and restore the site (including sea defences) to its former condition, to such extent and within such limits as the Agency reasonably requires.

(5) If within a reasonable period, being not less than 28 days beginning with the date on which a notice under sub-paragraph (4) is served on the undertaker, it has failed to begin taking steps to comply with the reasonable requirements of the notice and subsequently complete them within such reasonable period as may be specified in the notice, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.

(6) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (4), the Agency shall not, except in a case of emergency, exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined.

Impairment of efficiency of drainage work for flood defence purposes

3.  If by reason of the construction of any consented work, or of the failure of any such work, the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage shall be made good by the undertaker to the reasonable satisfaction of the Agency; and if the undertaker fails to do so within such reasonable period as the Agency may require by notice in writing to the undertaker, the Agency may make good such impairment or damage and recover from the undertaker the expense reasonably incurred by it in so doing.

Indemnity as to costs and expenses

4.—(1) The undertaker shall indemnify the Agency in respect of all reasonable and proper costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain in the inspection, for the purpose of compliance with this Schedule, of the construction of any consented works or any protective works required by the Agency under this Schedule.

(2) The undertaker shall indemnify the Agency against all claims, demands, proceedings, costs, damages, expenses or losses, which may be made or taken against, or recovered from or incurred by the Agency by reason of—

(a)any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

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

(c)any flooding or increased flooding of any land adjoining the works; or

(d)inadequate water quality in any watercourse or other surface waters or in any groundwater,

which is caused by the construction of any of the consented works or any act or omission of the undertaker, its contractors, agents or employees whilst engaged upon the consented works.

(3) The Agency shall give to the undertaker reasonable notice of any such claim, demand, or proceedings and no settlement or compromise of any such claim, demand, proceedings, costs, damages, expenses or losses shall be made without the consent of the undertaker which shall not be unreasonably withheld and if the undertaker shall not give such consent the Agency shall diligently defend such claim or demand.

5.  The fact that any work or thing has been executed or done by the undertaker in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve the undertaker from any liability under paragraph 4.

Disputes and differences

6.  Any dispute arising between the undertaker and the Agency under this Schedule shall, if the parties agree, be determined by arbitration, but shall otherwise be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Energy and Climate Change acting jointly.