SCHEDULES

Article 2

SCHEDULE 1AUTHORISED DEVELOPMENT

In the administration area of Thanet

A nationally significant infrastructure project as defined in sections 14 (nationally significant infrastructure projects: general) and 23 (airports) of the 2008 Act comprising:

Work No.1 — The construction of airside cargo facilities and ancillary offices with a maximum building height of 20m and total combined cargo and office footprint of 65,500m².

Work No.2 — The construction of 8 light and business aircraft hangars and associated fixed base operator terminal with a maximum building height of 15m.

Work No.3 — The construction of a new air traffic control centre to include—

(a)an air traffic control tower with a maximum building height of 27m;

(b)an airfield operations centre; and

(c)associated parking.

Work No.4 — The construction of a new modern radar installation to include—

(a)a radar tower with a maximum building height of 27m;

(b)an area of safeguarded land of 165m radius surrounded by a security fence to ensure uninterrupted radar operation; and

(c)single storey ancillary structures to house equipment and provide maintenance access.

Work No.5 — The construction of new or improved approach lights and navigational aids.

Work No.6 — The construction of new or improved approach lights and navigational aids.

Work No.7 — The rehabilitation of the existing 10/28 runway and runway shoulders.

Work No.8 — The construction and rehabilitation of pavements for the safe movement and parking of aircraft and aircraft support vehicles and associated pavement infrastructure.

Work No.9 — The construction and rehabilitation of pavements for the creation of 19 Code E aircraft parking stands and associated pavement infrastructure.

Work No.10 — The construction and rehabilitation of pavements for the creation of 3 Code C aircraft parking stands and associated pavement infrastructure.

Work No.11 — The construction and rehabilitation of pavements for the creation of 4 Code C aircraft parking stands and associated pavement infrastructure.

Work No.13 — The construction of a new airport fire station and associated storage areas to include—

(a)six full size emergency bay doors allowing front and rear entry;

(b)a garage area with associated workshop;

(c)a welfare and management area; and

(d)a hardstanding area for tank storage of firefighting materials.

Associated development comprising:

Work No.12 — The construction of a new passenger terminal facility with a maximum building height of 15m.

Work No.14 — The construction of a gatehouse with a maximum height of 4m and vehicle control area to including vehicle lanes, a gantry with maximum height of 8m and a welfare facility for gatehouse staff.

Work No.15 — The construction of airport-related commercial facilities (use class B1 and B8) with a maximum building height of 18m and with a total building footprint of up to 60,000m² including associated paved storage areas, parking and internal accessways.

Work No.16 — The construction of airport-related commercial facilities (use class B8) with a maximum building height of 18m and with a total building footprint of up to 26,000m² to include associated paved storage areas, parking and internal accessways.

Work No.17 — The construction of airport-related commercial facilities (use class B1) with a maximum building height of 10m and with a total building footprint of up to 30,000m² to include associated paved storage areas, parking and internal accessways.

Work No.18 — The construction of a new aircraft recycling facility and associated offices with a maximum building height of 23m.

Work No.19 — The construction of new or improved facilities to create an airport fuel farm on the site of an existing fuel storage facility.

Work No.20 — The construction of an airside storage and maintenance area for cargo and stand equipment.

Work No.21 — The construction of internal access roads and parking areas including passenger parking and parking overflow.

Work No.22 — The construction of paved areas and visual screening for the proposed cargo areas to include an emergency assembly area, site access road and paved areas to support cargo facilities and air traffic control.

Work No.23 — The construction of two new attenuation ponds for the purposes of treating, storing and discharging site drainage runoff.

Work No.24 — Works to construct a diversion to an existing public right of way.

Work No.25 — Public highway works to construct a new airport access.

Work No.26 — Public highway works to junction of B2190 and B2050.

Work No.27 — Public highway works to B2050 including new access provision.

Work No.28 — Public highway upgrade to B2190.

Work No.29 — Public highway upgrade to Manston Road.

Work No.30 — Public highway upgrade to B2190.

Work No.31 — Public highway upgrade to Manston Road.

Work No.32 — Public highway works at new airport-related business park entrance on Manston Road.

In connection with the construction of any of those works, further associated development within the Order limits which does not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement consisting of—

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

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

(c)ramps, means of access, non-motorised links, footpaths, footways, bridleways, cycle tracks and crossing facilities;

(d)embankments, viaducts, aprons, abutments, shafts, foundations, retaining walls, drainage, outfalls, ditches, pollution control devices, wing walls, highway lighting, fencing and culverts;

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

(f)works to place, alter, divert, relocate, remove or maintain the position of apparatus, services, plant and other equipment in a street, or in other land, including mains, sewers, drains, pipes, lights and cables;

(g)landscaping, noise barriers, works associated with the provision of ecological mitigation and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development;

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

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

(j)works to place, alter, remove or maintain road furniture;

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

(l)the felling of trees and hedgerows;

(m)establishment of site construction compounds, storage areas, temporary vehicle parking, construction fencing, perimeter enclosure, security fencing, construction related buildings, welfare facilities, construction lighting, haulage roads and other machinery, apparatus, works and conveniences;

(n)the provisions of other works including service roads, internal site roads, pavement works, kerbing and paved areas works, signing, signals, gantries, road markings works, traffic management measures including temporary roads and such other works as are associated with the construction, operation or maintenance of the authorised development; and

(o)such other works, working sites storage areas, works of demolition or works of whatever nature, as may be necessary or expedient for the purposes of, or for purposes associated with or ancillary to, the construction, operation or maintenance of the authorised development which do not give rise to any materially new or materially different environmental effects to those assessed in the environmental statement.

Article 3

SCHEDULE 2REQUIREMENTS

PART 1REQUIREMENTS

Interpretation

1.  In this Schedule—

“bellyhold” means the cargo hold of a passenger aircraft used for freight;

“Biodiversity Unit” means a biodiversity unit as defined in accordance with the methodology outlined in the document entitled ‘Technical Paper: the metric for the biodiversity offsetting pilot in England’ published by the UK Department for Environment, Food and Rural Affairs in March 2012;

“cargo air transport movement” means landings or take-offs of aircraft engaged on the transport of freight or mail on commercial terms. All scheduled movements, including those operated empty and loaded charter movements are included, but passenger flights carrying bellyhold freight are not included;

“European protected species” has the same meaning as in regulations 42 (European protected species of animals) and 46 (European protected species of plants) of the Conservation of Habitats and Species Regulations 2017(1);

“general aviation movement” means landings or take-offs of all civil aviation operations other than scheduled air services and non-scheduled air transport operations for remuneration or hire. General aviation activities include but are not limited to training, business aviation, recreation, agriculture, transport of dangerously ill people and of urgently needed human organs, medical equipment and medicines, monitoring ground traffic movements from the air, civil search and rescue, law enforcement, aerial survey, pollution control and firefighting, and flying displays;

“habitable room” means a room used, or intended to be used for dwelling purposes including a kitchen but not a bathroom or utility room;

“nationally protected species” means any species protected under the Wildlife and Countryside Act 1981(2);

“operation environmental management plan” means the document of that name to be developed for each part of the authorised development prior to the relevant part being brought into operational use which will contain the environmental information needed for future maintenance and operation of that part of the authorised development;

“passenger air transport movement” means landings or take-offs of aircraft engaged on the transport of passengers on commercial terms. All scheduled movements, including those operated empty, loaded charter and air taxi movements are included; and

“scheduled” means planned according to a schedule and includes both scheduled and chartered flights.

Time limits

2.  The authorised development must commence no later than the expiration of five years beginning with the date that this Order comes into force.

Development masterplans

3.—(1) No part of the authorised development is to be commenced until there has been submitted to and approved by the relevant planning authority in consultation with Kent County Council and Historic England—

(a)where the authorised development is to be constructed in a single part, a masterplan in respect of the entire authorised development; or

(b)where the authorised development is to be constructed in two or more parts, a masterplan for the relevant part of the authorised development.

(2) The masterplan must—

(a)where the development is to be constructed in a single part, include a masterplan illustrating the entire authorised development; or

(b)where the authorised development is to be constructed in two or more parts, include—

(i)those elements of the authorised development which are to be developed in that part;

(ii)where it is the plan for the first part, the identification of the elements or areas of the authorised development which are to be constructed at a later date;

(c)include an outline programme setting out the anticipated programme for construction of those elements of the authorised development comprised in the relevant masterplan; and

(d)be substantially in accordance with the certified masterplan referred to in Schedule 10 of this Order.

(3) Before a masterplan is submitted under sub-paragraph (1) the undertaker must—

(a)commission further assessment of the historic character of the airfield, historic buildings survey, and archaeological investigation, and assess the heritage significance of heritage assets and their settings;

(b)consider that the conservation of heritage assets of national importance and their settings should be given great weight, and conflict between their conservation and the proposal avoided or minimise and

(c)consult the relevant planning authority, Kent County Council and Historic England before submitting the masterplan for approval and report on the consultees’ recommendations in the submission.

(4) Where a masterplan has been submitted to and approved by the relevant planning authority for a particular part of the authorised development—

(a)the details to be submitted to the relevant planning authority to discharge any requirement may relate to that part only, in order that the construction and/or operation of that part may commence in accordance with the approved details; and

(b)construction of that part must not commence until the relevant part of any requirement has been discharged.

(5) The authorised development must be carried out in accordance with the relevant approved masterplan.

Detailed design

4.—(1) No part of the authorised development is to commence until details of the siting, design, external appearance, lighting, site access (including emergency access) and dimensions of any element of Work Nos. 1, 2, 3, 4, 12, 13, 14, 15, 16, 17, 18 or 20 contained in that part, which must accord with sub-paragraphs (2) and (3), have been submitted to and approved by the relevant planning authority in consultation with Kent County Council where relevant to its functions.

(2) The authorised development must be carried out in general accordance with—

(a)the engineering drawings and sections;

(b)the design drawings;

(c)the design principles contained in the design and access statement;

(d)the design guide; and

(e)the lighting scheme,

unless otherwise agreed in writing by the relevant planning authority provided that the relevant planning authority is satisfied that any departures from those documents do not give rise to any materially new or materially different environmental effects than those assessed in the environmental statement.

(3) Where amended details are approved by the relevant planning authority in relation to the documents referred to in sub-paragraph (2), those details are deemed to be substituted for the corresponding details in those documents and the undertaker must make those amended details available in electronic form for inspection by members of the public.

(4) Sub-paragraphs (2) and (3) are subject to the approvals required under sub-paragraph (1).

(5) The construction of the authorised development must be carried out in accordance with the details approved under sub-paragraph (1).

Detailed design of fuel farm

5.—(1) No part of Work No. 19 is to commence until the detailed design for that Work and details of safety processes associated with operation of that Work have been submitted to and approved in writing by the relevant planning authority, following consultation with the Environment Agency.

(2) The details approved under sub-paragraph (1) must reflect the relevant actions and commitments set out in the register of environmental actions and commitments.

(3) The construction, maintenance and operation of Work No. 19 must be carried out in accordance with the details approved under sub-paragraph (1).

Construction environmental management plan

6.—(1) No part of the authorised development is to commence until a construction environmental management plan for that part, which must be substantially in accordance with the outline construction environmental management plan, has been submitted to, and approved in writing by, the relevant planning authority, following consultation with the relevant highway authority, the Environment Agency, Southern Water, Historic England, the Civil Aviation Authority and Natural England to the extent that it relates to matters relevant to their function.

(2) A construction environmental management plan approved under sub-paragraph (1) must contain—

(a)the following plans, risk assessments and strategies—

(i)dust management plan;

(ii)mitigation and habitat creation plan;

(iii)environmental spillage plan;

(iv)unexploded ordnance threat and risk assessment;

(v)noise and vibration management plan;

(vi)construction traffic management plan;

(vii)public rights of way management plan;

(viii)construction emergency plan;

(ix)site waste management plan;

(x)construction risk assessment;

(xi)carbon minimisation action plan;

(xii)construction emergency plan;

(xiii)tree survey and protection plan;

(xiv)construction safety management plan;

(xv)drainage strategy;

(xvi)pollution control plan;

(b)a record of the consents, commitments and permissions resulting from liaison with statutory bodies; and

(c)those mitigation measures set out in the register of environmental actions and commitments which are relevant to the construction of the authorised development.

(3) Construction of each part of the authorised development must be carried out in accordance with the approved construction environmental management plan for that part.

Operation environmental management plan

7.—(1) No part of the authorised development is to begin operation until an operation environmental management plan for that part has been submitted to, and approved in writing by, the relevant planning authority, following consultation with the relevant highway authority, the Environment Agency, Southern Water, Historic England, the Civil Aviation Authority and Natural England to the extent that it relates to matters relevant to their function.

(2) The operation environmental management plan must contain—

(a)chapters addressing—

(i)environment and sustainability policies;

(ii)legal compliance;

(iii)reporting procedures;

(iv)obligations to be placed upon third parties including tenants and commercial users of the airport;

(v)stakeholder management and complaints procedures;

(vi)waste and materials management (including hazardous or abnormal substances);

(vii)noise management;

(viii)air quality management;

(ix)wildlife management;

(x)water and drainage;

(xi)traffic management and green travel planning;

(xii)landscape planting and maintenance;

(xiii)fuel storage and transport arrangements; and

(xiv)operational use of herbicides to control vegetation;

(b)plans, strategies and policy documents including—

(i)environmental spillage plan;

(ii)site waste management plan;

(iii)carbon minimisation action plan;

(iv)operational emergency plan;

(v)wildlife hazard management plan;

(vi)habitat management plan;

(vii)long grass policy;

(viii)emergency response and post-crash management plan;

(ix)framework travel plan including freight management strategy;

(x)public rights of way management strategy;

(xi)car park management strategy;

(xii)airport management strategy;

(xiii)bus service enhancement scheme;

(xiv)airport surface access strategy;

(xv)HGV signage strategy; and

(xvi)lighting strategy substantially to meet the requirements set out in the draft lighting strategy;

(c)the commitments to aftercare, monitoring and maintenance activities relating to the environmental features and mitigation measures that will be required to ensure the continued effectiveness of the environmental mitigation measures and the prevention of unexpected environmental impacts during the operation of that part of the authorised development;

(d)a record of the consents, commitments and permissions resulting from liaison with statutory bodies;

(e)those mitigation measures set out in the register of environmental actions and commitments which are relevant to the operation and maintenance of that part of the authorised development; and

(f)provision for a process under which the contents of the operation environmental management plan are continually reviewed against relevant best practice and any consequent changes are submitted for approval by the local planning authority.

(3) Each part of the authorised development must be operated and maintained in accordance with the approved operation environmental management plan for that part.

(4) No part of the authorised development is to begin operation until a bus service enhancement scheme, has been submitted to, and approved in writing by, the local highway authority. This must contain measures to enhance existing bus services and include shuttle bus service provision.

Ecological mitigation

8.—(1) No part of the authorised development may be commenced until written details of the proposed on-site and off-site ecological mitigation for that part, the timetable for its implementation, its monitoring and management have been submitted to and approved by the local planning authority, in consultation with Natural England.

(2) The details of mitigation approved under sub-paragraph (1) must incorporate a net gain of at least 10 Biodiversity Units across the Order limits and any land used for ecological mitigation purposes compared with the situation that existed prior to the commencement of the authorised development.

(3) The ecological mitigation must be implemented, monitored and managed by the undertaker in accordance with the written details approved under sub-paragraph (1).

Noise mitigation

9.—(1) The undertaker must fully implement the noise mitigation plan.

(2) The authorised development must be operated in accordance with the noise mitigation plan.

(3) No part of the authorised development is to commence until the measures set out in sections 2, 3, 4, 5 and 9 of the noise mitigation plan have been implemented.

(4) Residential properties with habitable rooms within the 60dB LAeq (16 hour) day time contour will be eligible for noise insulation and ventilation as detailed in the noise mitigation plan.

(5) The airport will be subject to an annual noise quota of 2000 between the hours of 06.00 and 07.00 as set out in paragraph 1.8 of the noise mitigation plan.

(6) Any aircraft which has a quota count of 4 or above cannot be scheduled to take-off or land at the airport between the hours of 06.00 and 07.00 as set out in paragraph 1.7 of the noise mitigation plan.

(7) The area enclosed by the 50dB(A) Leq16hr (07.00 to 23.00) contour must not exceed 35.8 sq km, and the area enclosed by the 40dB(A) Leq8hr (23.00 to 07.00) contour must not exceed 47.4 sq km as set out in paragraph 1.12 of the noise mitigation plan.

(8) In this requirement—

“LAeq (16 hour) day time contour” means the equivalent continuous sound level of aircraft noise during the average day; and

“quota count” means the amount of the quota assigned to one take-off or landing by the aircraft in question.

Landscaping

10.—(1) No part of the authorised development is to commence, nor may powers under article 34 (felling or lopping of trees and removal of hedgerows) be exercised, until a landscaping scheme for that part, which sets out details of all proposed hard and soft landscaping works, has been submitted to and approved in writing by the local planning authority.

(2) A landscaping scheme referred to in sub-paragraph (1) must contain all relevant mitigation measures set out in the register of environmental actions and commitments.

(3) A landscaping scheme referred to in sub-paragraph (1) must be substantially in the form of the draft landscaping plan.

(4) All landscaping works must be carried out to a reasonable standard in accordance with the relevant recommendations of appropriate British Standards or other recognised codes of good practice.

(5) The landscaping scheme approved under sub-paragraph (1) must be carried out in full.

(6) Any tree or shrub planted as part of the landscaping scheme that, within a period of 25 years after planting, is removed, dies or becomes in the reasonable opinion of the relevant planning authority, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted.

Contaminated land and groundwater

11.—(1) In the event that land affected by contamination, including groundwater, is found at any time when carrying out the authorised development which was not previously identified in the environmental statement, it must be reported as soon as reasonably practicable to the relevant planning authority and the Environment Agency, and the undertaker must complete a risk assessment of the contamination in consultation with the relevant planning authority and the Environment Agency.

(2) Where the undertaker determines that remediation of contamination identified in, on, or under land from detailed site investigations, or as an unexpected discovery, is necessary, a written scheme and programme for the remedial measures to be taken to render the land fit for its intended purpose must be submitted to and approved in writing by the relevant planning authority, following consultation with the Environment Agency.

(3) Any required and agreed remediation must be carried out in accordance with the scheme approved under sub-paragraph (2).

(4) A verification plan providing details of the data that will be collected in order to demonstrate that the works set out in the remediation scheme approved under sub-paragraph (2) are complete and identifying any requirements for longer-term monitoring of pollutant linkages, maintenance and arrangements for contingency action must be submitted to and approved in writing by the relevant planning authority, following consultation with the Environment Agency.

(5) Prior to any part of the authorised development being occupied a verification report demonstrating the completion of the works set out in the approved remediation scheme and the effectiveness of the remediation must be submitted to, and approved in writing by, the relevant planning authority. The report must include results of sampling and monitoring carried out in accordance with the verification plan approved under sub-paragraph (4) to demonstrate that the site remediation criteria have been met.

Protected species

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

(2) Following pre-construction survey work or at any time when carrying out the authorised development, where—

(a)a protected species is shown to be present, or where there is reasonable likelihood of it being present;

(b)application of the relevant assessment methods used in the environmental statement show that a significant effect is likely to occur which was not previously identified in the environmental statement; and

(c)that effect is not addressed by any prior approved scheme of protection and mitigation established in accordance with this paragraph,

the relevant parts of the relevant works must cease until a scheme of protection and mitigation measures has been submitted to and approved in writing by the relevant planning authority following consultation with Natural England and Kent Wildlife Trust.

(3) The undertaker must consult with Natural England and Kent Wildlife Trust on the scheme referred to in sub-paragraph (2) prior to submission to the relevant planning authority for approval, except where a suitably qualified and experienced ecologist, holding a licence relating to the species in question, determines that the relevant works do not require a protected species licence.

(4) The relevant works under sub-paragraph (2) must be carried out in accordance with the approved scheme, unless otherwise agreed by the relevant planning authority after consultation with Natural England and Kent Wildlife Trust, and under any necessary licences.

Surface and foul water drainage

13.—(1) No part of the authorised development is to commence until for that part written details of the surface and foul water drainage plan, containing all relevant mitigation measures set out in the register of environmental actions and commitments including means of pollution control and monitoring and drainage operation, have been submitted to and approved in writing by the relevant planning authority following consultation with the Environment Agency, Kent County Council, Natural England and Southern Water on matters related to their function.

(2) The surface and foul water drainage system must be constructed in accordance with the approved details, unless otherwise agreed in writing by the relevant planning authority following consultation with the Environment Agency, Kent County Council, Natural England and Southern Water on matters relating to their functions, provided that the Secretary of State is satisfied that any amendments to the approved details do not give rise to any materially new or materially different environmental effects from those assessed in the environmental statement.

(3) No part of the authorised development is to begin operation until the construction of the entire surface and foul water drainage for that part is completed.

(4) Construction of the attenuation basins must be completed within the first phase of construction if construction is undertaken in phases.

Traffic management

14.—(1) No part of the authorised development is to commence until a construction traffic management plan for that part has been submitted to and approved in writing by the relevant planning authority, following consultation with the Royal Mail.

(2) The authorised development must be constructed in accordance with the construction traffic management plan approved under sub-paragraph (1).

Piling and other intrusive works

15.—(1) No operations consisting of piling or other intrusive works (including drilling) are to commence until a risk assessment and a method statement have been submitted to and approved in writing by the relevant planning authority following consultation with the Environment Agency and Southern Water.

(2) Operations subject to sub-paragraph (1) must be carried out in accordance with the method statement approved under sub-paragraph (1).

Archaeological remains

16.—(1) No part of the authorised development is to commence until for that part a written scheme for the investigation of areas of archaeological interest, containing all relevant mitigation measures set out in the register of environmental actions and commitments, has been submitted to and approved in writing by the relevant planning authority, following consultation with Historic England and Kent County Council on matters related to their function.

(2) The authorised development must be carried out in accordance with the scheme approved under sub-paragraph (1).

(3) A copy of any analysis, reporting, publication or archiving required as part of the written scheme approved under sub-paragraph (1) must be deposited with the Historic Environment Record of the relevant planning authority within one year of the date of completion of the authorised development or such other period as may be agreed in writing by the relevant planning authority or specified in the written scheme approved under sub-paragraph (1).

(4) Any archaeological remains not previously identified which are revealed when carrying out the authorised development must be retained in situ and reported to the relevant planning authority, Historic England and Kent County Council as soon as reasonably practicable from the date they are identified.

(5) No construction operations are to take place within 10 metres of the remains referred to in sub-paragraph (4) for a period of 14 days from the date of any notice served under sub-paragraph (4) unless otherwise agreed in writing by the relevant planning authority in consultation with Historic England and Kent County Council.

(6) If the relevant planning authority determines in writing that the archaeological remains require further investigation, no construction operations are to take place within 10 metres of the remains until provision has been made for the further investigation and recording of the remains in accordance with details to be submitted in writing to, and approved in writing by, the relevant planning authority in consultation with Historic England and Kent County Council.

Amendments to approved details

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

Community consultative committee

18.—(1) No part of the authorised development is to commence until the undertaker has established a community consultative committee pursuant to section 35(3) (facilities for consultation at certain aerodromes) of the 1982 Act.

(2) The constitution and proceedings of the community consultative committee established under sub-paragraph (1) must be in accordance with the consultative committee guidance.

Airport-related commercial facilities

19.—(1) Work Nos. 15, 16 and 17 must only be developed and used to have a direct relationship to and support the operation of Work Nos. 1 to 11 and 13.

(2) Buildings comprised in Work Nos. 15, 16 and 17 must not be occupied before

(a)the aerodrome is granted European Union Aviation Safety Agency or Civil Aviation Authority certification; and

(b)the commencement of operation of Work No. 1 (or any part thereof).

Education, employment and skills plan

20.—(1) No part of the authorised development is to commence until an employment and skills plan has been submitted to, and approved in writing by, the relevant planning authority, following consultation with the relevant local education authority to the extent that it relates to matters relevant to their function.

(2) The employment and skills plan must contain—

(a)chapters addressing—

(i)legal compliance;

(ii)reporting procedures; and

(iii)obligations to be placed upon third parties including local educational establishments and bodies;

(b)plans and policy documents including—

(i)a local hiring policy;

(ii)an education and skills policy; and

(iii)a workplace training policy;

(c)provision for the establishment of a local employment partnership board to include the relevant planning authority and the relevant local education authority and other relevant stakeholders as appropriate, to assist in the delivery of the plans and policies listed under paragraph (b); and

(d)provision for a process under which the contents of the employment and skills plan is continually reviewed against relevant best practice and any consequent changes are submitted for approval by the relevant planning authority.

(3) The employment and skills plan approved under sub-paragraph (1) must be implemented in full.

Airport operation

21.—(1) The operation of the airport is subject to—

(a)a total annual cargo air transport movement limit of 17,170;

(b)a total annual passenger air transport movement limit of 9,298; and

(c)a total annual general aviation movement limit of 38,000.

(2) No aircraft is to take-off or be scheduled to land between the hours of 23:00 and 06:00.

(3) No passenger air transport departures are to take place between the hours of 09:00 and 11:30. There must only be one passenger air transport departure between the hours of 11:30 and 11:44 and one passenger air transport departure between the hours of 11:45 and 12:00. There must only be one scheduled passenger air transport arrival between the hours of 07:00 and 08:00.

(4) No passenger air transport departures are to take place between the hours of 20:00 and 21:00. There must only be one passenger air transport arrival between the hours of 16:00 and 17:00; only two passenger air transport departures between the hours of 1800 and 19:00; and only one passenger air transport departure between the hours of 19:00 and 20:00.

Highway improvements

22.  Work Nos. 26 to 31 must be completed in accordance with article 11 (construction and maintenance of new, altered or diverted streets) of this Order before any of Work Nos. 1, 2, 7, 12 or 15 to 20 commence operation.

Monitoring

23.  No part of the authorised development is to begin operation until a monitoring, auditing and reporting plan for the register of environmental actions and commitments has been submitted to, and approved in writing by, the relevant planning authority, following consultation with the highway authority, the Environment Agency, Historic England, the Civil Aviation Authority and Natural England to the extent that it relates to matters relevant to their function.

High Resolution Direction Finder

24.—(1) No part of the authorised development must commence unless and until a detailed mitigation scheme to provide an alternate High Resolution Direction Finder, prepared by the undertaker and agreed in writing by the Ministry of Defence, has been submitted to the relevant planning authority. The detailed mitigation scheme must include siting location(s) for the alternate High Resolution Direction Finder, full specification for the equipment and infrastructure proposed, details of a programme, to test the new equipment as installed against the Ministry of Defence requirements for acceptance into service and the technical performance data necessary to establish safeguarding criteria to protect its subsequent operation.

(2) No part of the authorised development is permitted to be constructed within the zone protected by the Ministry of Defence (Manston) Technical Site Direction 2017 while the safeguarding direction is in force without the consent of the Secretary of State for Defence.

(3) No part of the authorised development must commence unless and until a programme for the decommissioning and removal of the existing High Resolution Direction Finder, prepared by the undertaker and submitted to and agreed in writing by the Ministry of Defence, has been submitted to the relevant planning authority. The decommissioning and removal of the existing High Resolution Direction Finder equipment must be carried out strictly in accordance with the details approved.

PART 2PROCEDURE FOR DISCHARGE OF REQUIREMENTS

Applications made under requirements

25.—(1) Where an application has been made to a relevant planning authority for any consent, agreement or approval required by a requirement (including consent, agreement or approval in respect of part of a requirement) included in this Order, the relevant planning authority must give notice to the undertaker of its decision on the application within a period of eight weeks beginning with—

(a)the day immediately following that on which the application is received by the authority;

(b)the day immediately following that on which further information has been supplied by the undertaker under sub-paragraph (3); or

(c)such longer period as may be agreed in writing by the undertaker and the relevant planning authority.

(2) Any application made to the relevant planning authority pursuant to sub-paragraph (1) must include a statement to confirm whether it is likely that the subject matter of the application will give rise to any materially new or materially different environmental effects than those assessed in the environmental statement and if it will then it must be accompanied by information setting out what those effects are.

(3) In determining any application made to the relevant planning authority for any consent, agreement or approval required by a requirement contained in Part 1 of this Schedule, the relevant planning authority may—

(a)may give or refuse its consent, agreement or approval; or

(b)give its consent, agreement or approval subject to reasonable conditions,

and where consent, agreement or approval is refused or granted subject to conditions the relevant planning authority must provide its reasons for that decision with the notice of its decision.

(4) Where an application has been made under sub-paragraph (1), the relevant planning authority may request such reasonable further information from the undertaker as it considers is necessary to enable it to consider the application.

(5) If the relevant planning authority or a requirement consultee considers further information is required, the relevant planning authority must, within 21 business days of receipt of the application, notify the undertaker in writing specifying the further information required.

(6) If the relevant planning authority does not give the notification mentioned in sub-paragraph (4) it is deemed to have sufficient information to consider the application and is not thereafter entitled to request further information without the prior agreement of the undertaker.

Fees

26.—(1) Where an application is made to a relevant planning authority for any consent, agreement or approval required by a requirement, the fee for the discharge of conditions attached to a planning permission contained in regulation 16(1)(b) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012(4) (as may be replaced from time to time) is to apply and must be paid to the relevant planning authority for each application.

(2) Any fee paid under this Schedule must be refunded to the undertaker within a period of 35 days of—

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

(b)the relevant planning authority fails to determine the application within a period of 8 weeks from the date on which it is received, unless within that period the undertaker agrees in writing that the fee may be retained by the relevant planning authority and credited in respect of a future application; or

(c)a longer period where a longer time for determining the application has been agreed pursuant to paragraph 25(1)(c).

Appeals

27.—(1) The undertaker may appeal to the Secretary of State if—

(a)the relevant planning authority refuses an application for any consent, agreement or approval required by—

(i)a requirement and any document referred to in any requirement in Part 1 of this Schedule; or

(ii)any other consent, agreement or approval required under this Order, or grants it subject to conditions to which the undertaker objects;

(b)the relevant authority does not give notice of its decision to the undertaker within the period specified in paragraph 25(1) or grants it subject to conditions;

(c)having received a request for further information under paragraph 25(4) 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)having received any further information requested, the relevant 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 procedure 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) the expiry of the decision period as determined under paragraph 25;

(b)the undertaker must submit to the Secretary of State a copy of the application submitted to the relevant planning authority and any supporting documents which the undertaker may wish to provide (“the appeal documents”);

(c)the undertaker must on the same day provide copies of the appeal documents to the relevant planning authority and the requirement consultee (if applicable);

(d)as soon as is practicable after receiving the appeal documents the Secretary of State must appoint a person to determine the appeal (“the appointed person”)(5) and notify the appeal parties of the identity of the appointed person and the address to which all correspondence for the appointed person must be sent;

(e)the relevant authority and the requirement consultee (if applicable) must submit any written representations in respect of the appeal to the appointed person within 10 business days beginning with the first day immediately following the date on which the appeal parties are notified of the appointment of the appointed person and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

(f)the appeal parties may make any counter-submissions to the appointed person within 10 business days beginning with the first day immediately following the date of receipt of written representations pursuant to paragraph (d) above; and

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

(3) If the appointed person considers that further information is necessary to consider 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 must be submitted.

(4) Any further information required pursuant to sub-paragraph (3) must be provided by the party from whom the information is sought to the appointed person and to the other appeal parties by the date specified by the appointed person.

(5) The appeal parties may submit written representations to the appointed person concerning matters contained in the further information.

(6) Any such representations must be submitted to the appointed person and made available to all appeal parties within 10 business days of the date mentioned in sub-paragraph (3).

Outcome of appeals

28.—(1) On an appeal under paragraph 27, 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.

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

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

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

(5) Any consent, agreement or approval given by the appointed person pursuant to this paragraph is deemed to be an approval for the purpose of Part 1 of this Schedule as if it had been given by the relevant planning authority.

(6) 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) does not affect or invalidate the effect of the appointed person’s determination.

(7) Except where a direction is given pursuant to sub-paragraph (8) requiring the costs of the appointed person to be paid by the relevant authority, the reasonable costs of the appointed person must be met by the undertaker.

(8) On application by the relevant 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.

(9) In considering whether to make any such direction as to the costs of the appeal parties and the terms on which it is made, the appointed person must have regard to the Planning Practice Guidance or any guidance which may from time to time replace it.

Interpretation of Part 2 of Schedule 2

29.  In Part 2 of Schedule 2—

“the appeal parties” means the relevant planning authority, the requirement consultee and the undertaker;

“business day” means a day other than a Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 (bank holidays) of the Banking and Financial Dealings Act 1971(6); and

“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 authority in discharging that requirement.

Article 13

SCHEDULE 3PERMANENT STOPPING UP OF PUBLIC RIGHTS OF WAY

PART 1PUBLIC RIGHTS OF WAY TO BE STOPPED UP AND FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

PART 2PUBLIC RIGHTS OF WAY TO BE STOPPED UP AND FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

Article 15

SCHEDULE 4TRAFFIC REGULATION

Article 22(2)

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

Article 22(3) and (4)

SCHEDULE 6MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.—(1) Without limiting paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).

(2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute—

“(5A) If—

(a)the acquiring authority enters on land for the 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 6 to the Manston Airport Development Consent Order 2022 (“the 2022 Order”));

(b)the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 6 to the 2022 Order) 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.”.

3.—(1) Without limiting paragraph 1, the Land Compensation Act 1973(7) has effect subject to the modifications set out in sub-paragraph (2).

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

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

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

Application of Part 1 of the 1965 Act

4.  Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied by section 125 (application of compulsory acquisitions provisions) of the 2008 Act (and modified by article 25 (modification of Part 1 of the 1965 Act)) to the acquisition of land under article 19 (compulsory acquisition of land), applies to the compulsory acquisition of a right by the creation of a new right —

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

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

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

(2) References to 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

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

(3) For section 7 (measures of compensation of the 1965 Act substitute—

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

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

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

(b)paragraph 10(3) of Schedule 1 (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 is vested absolutely in the acquiring authority.

(5) Section 11(8) (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right, as well as the notice of entry required by subsection (1) of that section has it applies to a compulsory acquisition under article 19), it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right; and sections 11A(9) (powers of entry: further notices of entry), 11B(10) (counter-notice requiring possession to be taken on specified date), 12(11) (unauthorised entry) and 13(12) (refusal to give possession to acquiring authority) of the 1965 Act are modified correspondingly.

(6) Section 20(13) (tenants at will, etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

(7) Section 22 (interests omitted from purchase) of the 1965 Act as modified by article 25(4) is also modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

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

“SCHEDULE 2ACOUNTER-NOTICE REQUIRING PURCHASE OF LAND NOT IN NOTICE TO TREAT

Introduction

1.  This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the 1981 Act 1981 as applied by article 26 (application of the 1981 Act) in respect of the land to which the notice to treat relates.

2.  In this Schedule, “house” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land

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

4.  A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice

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

(a)withdraw the notice to treat,

(b)accept the counter-notice, or

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

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

7.  If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.

8.  If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.

9.  If the acquiring authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they 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 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,

(b)the use to be made of the right to be acquired, and

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

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

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

14.—(1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes 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 it 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 23

SCHEDULE 7ACQUISITION OF SUBSOIL AND RIGHTS ONLY

PART 1LAND IN WHICH ONLY SUBSOIL OR RIGHTS OVER SUBSOIL MAY BE ACQUIRED

PART 2LAND IN WHICH ONLY NEW RIGHTS MAY BE ACQUIRED AT SURFACE LEVEL OR ABOVE

Article 29

SCHEDULE 8LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Articles 31 and 39

SCHEDULE 9PROTECTIVE PROVISIONS

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

1.  The following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the utility undertaker concerned.

2.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable the utility undertaker in question to fulfil its statutory functions in a manner no less efficient than previously;

“apparatus” means—

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

“functions” includes powers and duties;

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

“plan” includes all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe the works to be executed;

“utility undertaker” means—

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

On street apparatus

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

Apparatus in stopped up streets

4.—(1) Where any street is stopped up under article 13 (permanent stopping up of public rights of way), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9.

(2) Regardless of the temporary stopping up or diversion of any highway under the powers conferred by article 12 (temporary stopping up and restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.

Protective works to buildings

5.  The undertaker, in the case of the powers conferred by article 17 (protective work to buildings), must exercise those powers so as not to obstruct or render less convenient the access to any apparatus.

Acquisition of land

6.  Regardless of any provision in this Order or anything shown on the land plans, the undertaker must not acquire any apparatus otherwise than by agreement.

Removal of apparatus

7.—(1) If, in the exercise of the powers conferred by this Order, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule, and any right of a utility undertaker to maintain that apparatus in that land must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in question in accordance with sub-paragraphs (2) to (6).

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, the undertaker must give to the utility undertaker in question 28 days’ written notice of that requirement, together with a plan of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the undertaker and subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the undertaker, or the undertaker is unable to afford such facilities and rights as are mentioned in sub-paragraph (2) in the land in which the alternative apparatus or part of such apparatus is to be constructed the utility undertaker must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the utility undertaker in question and the undertaker or in default of agreement settled by arbitration in accordance with article 43 (arbitration).

(5) The utility undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 43, and after the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraphs (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part of this Schedule.

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

Facilities and rights for alternative apparatus

8.—(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 43 (arbitration).

(2) If the facilities and rights to be afforded by the undertaker in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the utility undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by the undertaker to that utility undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus

9.—(1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 7(2), the undertaker must submit to the utility undertaker in question a plan of the works to be executed.

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

(3) Any requirements made by a utility undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan under sub-paragraph (1) is submitted to it.

(4) If a utility undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that requirement, paragraphs 1 to 3 and 6 to 8 apply as if the removal of the apparatus had been required by the undertaker under paragraph 7(2).

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

(6) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case must give to the utility undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (3) in so far as is reasonably practicable in the circumstances.

Expenses and costs

10.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to a utility undertaker all expenses reasonably incurred by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 7(2).

(2) The value of any apparatus removed under the provisions of this Part of this Schedule must be deducted from any sum payable under subparagraph (1), that value being calculated after removal.

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

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 43 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the utility undertaker in question by virtue of sub-paragraph (1) must be reduced by the amount of that excess.

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

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

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

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

11.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraphs 5 or 7(2), or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any utility undertaker, the undertaker must—

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

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

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

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

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

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

Cooperation

12.  Where in consequence of the proposed construction of any of the authorised development, the undertaker or a utility undertaker requires the removal of apparatus under paragraph 7(2) or a utility undertaker makes requirements for the protection or alteration of apparatus under paragraph 9, the undertaker must use best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the utility undertaker’s undertaking and each utility undertaker must use its best endeavours to co-operate with the undertaker for that purpose.

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

PART 2FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

14.  For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between the undertaker and the operator.

15.  In this Part of this Schedule—

“the 2003 Act” means the Communications Act 2003(19);

“electronic communications apparatus” has the same meaning as in the electronic communications code(20);

“the electronic communications code” has the same meaning as in section 106(1)(21) (application of the electronic communications code) of the 2003 Act;

“electronic communications code network” means—

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act;

“infrastructure system” has the same meaning as in the electronic communications code and reference to providing an infrastructure system is to be construed in accordance with paragraph 7(2) of that code; and

“operator” means the operator of an electronic communications code network.

16.  The exercise of the powers conferred by article 31 (statutory undertakers) is subject to Part 10 (undertaker’s works affecting electronic communications apparatus) of the electronic communications code.

17.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or its construction, or of any subsidence resulting from any of those works—

(a)any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or other property of an operator; or

(b)there is any interruption in the supply of the service provided by an operator,

the undertaker must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and make reasonable compensation to that operator for any other expenses, loss, damages, penalty or costs incurred by it, by reason, or in consequence of, any such damage or interruption.

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

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

(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 43 (arbitration).

(5) This Part of this Schedule does not apply to—

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

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

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

PART 3FOR PROTECTION OF NETWORK RAIL

18.  The following provisions of this Part of this Schedule shall have effect, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 32, any other person on whom rights or obligations are conferred by that paragraph.

19.  In this Part of this Schedule—

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” are to be construed accordingly;

“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of powers under section 8 (licences) of the Railways Act 1993(22);

“Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 (meaning of “subsidiary” etc.) of the Companies Act 2006(23)) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

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

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

“railway property” means any railway belonging to Network Rail Infrastructure Limited and—

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

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

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

(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 their 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.

(3) The undertaker shall 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.

(4) The undertaker shall not under the powers of this Order extinguish or acquire new rights over any railway property except with the consent of Network Rail.

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

21.—(1) The undertaker shall 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 shall not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.

(2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated his or her disapproval of those plans and the grounds of such disapproval the undertaker may serve upon the engineer written notice requiring the engineer to intimate his or her approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the undertaker. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the undertaker that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker desires such part of the specified work to be constructed, Network Rail shall construct it without unreasonable delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.

(4) When signifying his or her approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified work), and such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works shall be carried out at the expense of the undertaker in either case without unreasonable delay and the undertaker shall not commence the construction of the specified work until the engineer has notified the undertaker that the protective works have been completed to his or her reasonable satisfaction.

22.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 21(4) shall, when commenced, be constructed—

(a)without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 21;

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

(c)in such manner as to cause as little damage as is possible to railway property; and

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

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the undertaker shall, notwithstanding any such approval, make good such damage and shall pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(3) Nothing in this Part of this Schedule shall impose 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.

23.  The undertaker shall—

(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 he or she may reasonably require with regard to a specified work or the method of constructing it.

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

25.—(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which shall be specified in the notice), the undertaker shall pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the undertaker decides that part of the specified work is to be constructed, Network Rail shall assume construction of that part of the specified work and the undertaker shall, notwithstanding any such approval of a specified work under paragraph 22(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer shall, in respect of the capitalised sums referred to in this paragraph and paragraph 26(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.

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

26.  The undertaker shall repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a)in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 21(3) or in constructing any protective works under the provisions of paragraph 21(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 and otherwise in connection with the implementation of the provisions of this Part of this Schedule;

(c)in respect of the employment or procurement of the services of any inspectors, signallers, watch-person 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 may in the opinion of the engineer, be required to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

(e)in respect of any additional temporary lighting of railway property in the vicinity of the specified work, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

27.—(1) In this paragraph—

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

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 21(1) for the relevant part of the authorised development giving rise to EMI (unless the undertaker has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), the undertaker must in the design and construction of the authorised development take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

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

(a)the undertaker must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 21(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 21(1) have effect subject to the sub-paragraph.

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

(7) In the event of EMI having occurred—

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

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

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

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

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

(b)any modifications 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 31(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 26(a) any modifications to Network Rail’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article 43 (arbitration) to the Institution of Civil Engineers is to be read as a reference to the Institution of Electrical Engineers.

28.  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 shall, 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.

29.  The undertaker shall 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 shall have first consulted Network Rail and it shall 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.

30.  Any additional expenses which Network Rail may reasonably and properly 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 shall, 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.

31.—(1) The undertaker shall pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part which may be occasioned to or reasonably incurred by Network Rail—

(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 shall 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 the engineer’s supervision does 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 shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.

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

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail shall promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

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

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

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

32.  Network Rail shall, on receipt of a request from the undertaker, from time to time provide the undertaker with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part (including the amount of the relevant costs mentioned in paragraph 31) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

33.  In the assessment of any sums payable to Network Rail under this Part of this Schedule there shall not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the undertaker under this Part or increasing the sums so payable. The undertaker and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the undertaker of—

(a)any railway property shown on the works 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.

34.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, shall prejudice or affect the operation of Part 1 of the Railways Act 1993. The undertaker shall 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 Order) of this Order and any such notice shall be given no later than 28 days before any such application is made and shall describe or give (as appropriate)—

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

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

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

35.  Any difference or dispute arising between the undertaker and Network Rail under this Part of this Schedule shall be referred to and settled by arbitration under article 43 (arbitration).

Article 41

SCHEDULE 10DOCUMENTS TO BE CERTIFIED