1. For the protection of the undertakers referred to in this part of this Schedule the following provisions shall, unless otherwise agreed in writing between the undertakers and the affected undertaking concerned, have effect.
2. In this part of this Schedule—
“affected undertakers” means—
any licence holder within the meaning of Part 1 of the Electricity Act 1989(1);
a gas transporter within the meaning of Part 1 of the Gas Act 1986(2);
a water undertakers within the meaning of the Water Industry Act 1991(3); and
a sewerage undertakers within the meaning of Part 1 of the Water Industry Act 1991,
for the area of the authorised development, and in relation to any apparatus, means the undertakers to whom it belongs or by whom it is maintained;
“alternative apparatus” means alternative apparatus adequate to enable the affected undertakers in question to fulfil its statutory functions in a manner not less efficient than previously;
“apparatus” means—
in the case of an electricity undertakers, electric lines or electrical plant (as defined in the Electricity Act 1989), belonging to or maintained by that affected undertakers;
in the case of a gas undertakers, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;
in the case of a water undertakers, mains, pipes or other apparatus belonging to or maintained by that affected undertakers for the purposes of water supply; and
in the case of a sewerage undertakers—
any drain or works vested in the affected undertakers under the Water Industry Act 1991; and
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act,
and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“functions” includes powers and duties; and
“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.
3. This part of this Schedule does not apply to apparatus in respect of which the relations between the undertakers and the affected undertakers are regulated by the provisions of Part 3 of the 1991 Act.
4. Regardless of any provision in this Order or anything shown on the land plans, the undertakers shall not acquire any apparatus otherwise than by agreement.
5.—(1) If, in the exercise of the powers conferred by this Order, the undertakers acquires any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this part of this Schedule and any right of an affected undertakers to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the affected undertakers in question.
(2) If, for the purpose of executing any works in, on or under any land purchased, held, or used under this Order, the undertakers requires the removal of any apparatus placed in that land, it shall give to the affected undertakers in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an affected undertakers reasonably needs to remove any of its apparatus) the undertakers shall, subject to sub-paragraph (3), afford to the affected undertakers the necessary facilities and rights for the construction of alternative apparatus in other land of the undertakers and subsequently for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertakers, or the undertakers is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the affected undertakers in question shall, on receipt of a written notice to that effect from the undertakers, as soon as reasonably possible use all reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertakers under this part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the affected undertakers in question and the undertakers or in default of agreement settled by arbitration in accordance with article 33 (arbitration).
(5) The affected undertakers in question shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 33 (arbitration), and after the grant to the affected undertakers 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 undertakers to be removed under the provisions of this part of this Schedule.
(6) Regardless of anything in sub-paragraph (5), if the undertakers gives notice in writing to the affected undertakers in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land controlled by the undertakers, that work, instead of being executed by the affected undertakers, shall be executed by the undertakers without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the affected undertakers.
(7) Nothing in sub-paragraph (6) shall authorise the undertakers 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.
6.—(1) Where, in accordance with the provisions of this part of this Schedule, the undertakers affords to an affected undertakers facilities and rights for the construction and maintenance in land of the undertakers of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the undertakers and the affected undertakers in question or in default of agreement settled by arbitration in accordance with article 33 (arbitration).
(2) If the facilities and rights to be afforded by the undertakers in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the affected undertakers in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator shall make such provision for the payment of compensation by the undertakers to that affected undertakers as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
7.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertakers under paragraph 5(2), the undertakers shall submit to the affected undertakers in question a plan, section and description of the works to be executed.
(2) Those works shall 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 affected undertakers for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the affected undertakers shall be entitled to watch and inspect the execution of those works.
(3) Any requirements made by an affected undertakers under sub-paragraph (2) shall be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.
(4) If an affected undertakers in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertakers, reasonably requires the removal of any apparatus and gives written notice to the undertakers of that requirement, paragraphs 1 to 6 shall apply as if the removal of the apparatus had been required by the undertakers under paragraph 5(2).
(5) Nothing in this paragraph shall preclude the undertakers 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 shall apply to and in respect of the new plan, section and description.
(6) The undertakers shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the affected undertakers in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and shall comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
8.—(1) Subject to the following provisions of this paragraph, the undertakers shall repay to an affected undertakers the reasonable expenses incurred by that affected undertakers in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus (including costs or compensation payable in connection with the acquisition of land for that purpose) which may be required in consequence of the execution of any such works as are referred to in paragraph 5(2).
(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this part of this Schedule, that value being calculated after removal.
(3) If in accordance with the provisions of this part of this Schedule—
(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
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 undertakers or, in default of agreement, is not determined by arbitration in accordance with article 33 (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 affected undertakers in question by virtue of sub-paragraph (1) shall 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 shall 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 cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall 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 an affected undertakers in respect of works by virtue of sub-paragraph (1) shall, 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 affected undertakers 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.
9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of an affected undertakers, or there is any interruption in any service provided, or in the supply of any goods, by any affected undertakers, the undertakers shall—
(a)bear and pay the cost reasonably incurred by that affected undertakers in making good such damage or restoring the supply; and
(b)make reasonable compensation to that affected undertakers for any other expenses, loss, damages, penalty or costs incurred by the affected undertakers,
by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) shall impose any liability on the undertakers with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an affected undertakers, its officers, servants, contractors or agents.
(3) An affected undertakers shall give the undertakers reasonable notice of any such claim or demand and no settlement or compromise shall be made without the consent of the undertakers which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
10. Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the undertakers and an affected undertakers in respect of any apparatus laid or erected in land belonging to the undertakers on the date on which this Order is made.
1989 c.29. Section 64(1) was amended by section 108 and paragraphs 24, 38(1), (3) of Part II of Schedule 6 of the Utilities Act 2000.
1986 c.44. A new section 7 was substituted by section 5 of the Gas Act 1995 (c.45), and was further amended by section 76 of the Utilities Act 2000 (c.27).