374. For the protection of TGLP, TGPP and NGPL, the following provisions have effect, unless otherwise agreed in writing between the undertaker and TGLP, TGPP and NGPL.
375. In this Part of this Schedule—
“alternate access agreement” means a contractually binding agreement providing the undertaker with an alternative access to plots 110, 112, 113 and 114, utilising land outside of plots 103 and 108;
“affiliates” means, as to a specified party, any other party that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such specified party. For the purposes of this definition, the concept of “control”, when used with respect to any specified party, shall signify the possession of the power to direct the management and policies of such party, whether through the ownership of voting securities or partnership or other ownership interests;
“design package” means the package of documents to be provided to the NSMP entity for consultation and agreement in accordance with the design approval process in paragraphs 378 to 383 comprising of—
the design documents, being all plans, levels and setting out information, drawings, specifications, details, reports, calculations, records and other construction and design and related documents and information (including any software necessary to view them) prepared or to be prepared by or on behalf of the undertaker in relation to the relevant works and/or the site of the relevant works;
a detailed methodology of the proposed method of working including timing of execution of the relevant works; and
for relevant works package A the traffic management plan or detail demonstrating how the relevant works would be delivered in accordance with an already approved traffic management plan,
which package shall be updated from time to time with the approval of the NSMP Entity in accordance with the provisions of this Part;
“includes” or “including” means includes without limitation or including without limitation, as applicable;
“NGPL” means Northern Gas Processing Limited (Company number 2866642) of Suite 1, 7th Floor 50 Broadway, London, United Kingdom, SW1H 0BL;
“NGPL freehold” means the freehold property registered under Land Registry title number CE160127;
“NSMP entity” means together TGLP, TGPP and NGPL and any successor in title or function to the NSMP operations in whole or in part from time to time. Reference to an NSMP entity shall be to one or more of these entities and reference to NSMP entities will be to all of the foregoing, as the context admits;
“NSMP group” means the NSMP entity and its affiliates and its and their directors, officers, employees, contractors, sub-contractors, representatives and agents;
“NSMP operations” means all or any part of operations of the NSMP entities within Teesside from time to time including the ownership and enjoyment of all NSMP rights and NSMP property and the operation of all energy and other infrastructure at or relating to NSMP property, which currently comprises a plant to process gas from the UK North Sea and includes the NSMP pipelines;
“NSMP pipelines” means the low and high pressure pipelines owned and/or operated and/or used by the NSMP entities and/or over which the NSMP entities have rights from time to time within Teesside which are used (or have been used or are intended to be used) at various times for the passage of natural gas and/or liquid natural gas and/or other products (including butane, propane and condensate output) and all ancillary apparatus including such works and apparatus properly appurtenant to the pipelines as are specified by section 65(2) (meaning of “pipe-line”) of the Pipe-lines Act 1962;
“NSMP property” means all property owned and/or enjoyed by an NSMP entity within Teesside from time to time, including the TGLP freehold and NGPL freehold itself together with the NSMP rights;
“NSMP requirements” means, with respect to relevant works package A—
the continuing safety and uninterrupted and unimpeded operation and perpetuation of the NSMP operations;
uninterrupted and unimpeded emergency access with or without vehicles to the NSMP operations; and
the requirement for the NSMP entity and its employees, contractors, sub-contractors, agents and assigns to have at all times during the construction of the authorised development 24 hour unhindered access, utilities and servicing to all parts of the NSMP operations including in relation to access on foot, and with cars, light commercial vehicles and heavy goods vehicles with abnormal loads;
“NSMP rights” means without limitation all rights, benefits and privileges owned or enjoyed by an NSMP entity or in relation to which an NSMP entity has a benefit, whether legal, equitable, contractual or otherwise in existence from time to time relating to the NSMP entities, their business, operations and property including access, utilities, services (including surface water drainage) and all rights relating to the NSMP pipelines;
“parties” means the relevant NSMP entity and the undertaker;
“relevant works” mean any part of relevant works package A and relevant works package B;
“relevant works package A” means works included in Work Number 2 or 10 of the authorised development or access in connection with those works numbers, on plots 103, 105, 106 or 108, and access in connection with works on plots 110, 112, 113, 114;
“relevant works package B” means those parts of the authorised development, whether within the TGLP freehold, within the Order limits or otherwise, which would have a potential effect on the operation, safety, or maintenance of or access to the NSMP operations, excluding relevant works package A;
“TGLP” means Teesside Gas & Liquids Processing (Company number 02767808) of Suite 1, 7th Floor 50 Broadway, London, United Kingdom, SW1H 0BL and any successor in title or function and any successor in title to the TGLP freehold;
“TGLP freehold” means the freehold properties registered under Land Registry title numbers CE160125 and CE168304, within which plots 105, 106 and 103 are situated;
“TGPP” means Teesside Gas Processing Plant Limited (Company number 05740797) of Suite 1, 7th Floor 50 Broadway, London, United Kingdom, SW1H 0BL; and
“traffic management plan” means the undertaker’s detailed traffic management plans for the relevant works package A and which will set out access arrangements for the relevant works package A in relation to plot 103, plot 105, plot 106, plot 108, and access in connection with works on plot 110, plot 112, plot 113, and plot 114, and Seal Sands Road (including but not limited to plans for ensuring 24 hour unhindered access for the period of construction of the relevant works package A for the NSMP entity, its employees, contractors, sub-contractors, agents and assigns whether by cars, light commercial vehicles, heavy vehicles carrying abnormal loads and emergency services vehicles) for each stage or phase of the relevant works package A.
376. No relevant works are to be commenced until the design package has been developed and submitted by the undertaker and approved or deemed approved by the NSMP entity in accordance with the design approval process at paragraphs 377 to 382 below.
377. Following approval or deemed approval of the design package, the undertaker will submit any proposed changes (other than those which will have no adverse impact on the NSMP operations) to any of the documentation or drawings comprising the approved design package in accordance with the change approval process at paragraphs 382 to 386387 below and prior to the changes being implemented. The undertaker shall only implement such changes to the documentation or drawings (as applicable) as are agreed in writing in advance with the NSMP entity under the change approval process. Following any such changes to the design package having been approved or deemed approved the undertaker shall provide the NSMP entity with an updated electronic copy of the design package as changed.
378. The undertaker will design and carry out or will procure that the relevant works are designed and carried out in all respects in accordance with the approved design package (subject to any changes agreed as part of the change approval process).
Part A – Design Approval Process
379. This Part A sets out the approval process to be followed in respect of the consultation and agreement of the design package.
380. The undertaker shall submit the design package to the NSMP entity for consultation, review and approval.
381. Following submission of the design package to the NSMP entity, the parties agree to actively consult with each other so as to achieve approval by the NSMP entity within twenty business days of receipt by the NSMP entity of the design package. As part of that consultation the parties agree to adhere to the following—
(a)the NSMP entity must, within twenty business days of the date of receipt of the design package, notify in writing the undertaker;
(i)of its approval of all or any part of the design package; or
(ii)of its disapproval of all or any part of the design package and the reasons for disapproval of any part of the design package; or
(iii)any further or other information, data and documents that the NSMP entity reasonably requires, including, without limitation any modified documents or drawings,
(b)Within twenty business days of the undertaker providing any further information pursuant to sub-paragraph (a)(iii) above or providing material reasons why any changes requested by the NSMP entity (as part of its response pursuant to sub-paragraph (a)(ii) or (iii) cannot be implemented or further information cannot be provided, the NSMP entity and the undertaker will actively consult with each other for the purposes of agreeing the design package.
(c)If agreement on the design package and approval by the NSMP entity cannot be reached before the relevant period pursuant to sub-paragraph (a) or (b) above (or such alternate timescales as are agreed between the parties), the matter will be treated as a dispute to be resolved in accordance with paragraph 401 of this Part unless otherwise agreed by the parties.
382. In the event the NSMP entity does not provide any response to the undertaker in accordance with the timescale set out in paragraph 380(a) or (b) the NSMP entity shall be deemed to have given their approval to the design package.
383. Once approved, the undertaker shall issue one paper copy and one electronic copy of the documents comprised within the approved design package and shall compile and maintain a register of the date and contents of the submission of the design package.
384. With respect to the relevant works package A, the undertaker may either submit the traffic management plan for agreement as part of the design package, or it may submit the traffic management plan in advance of a design package in which case the design approval process set out in Part A and the change approval process set out in Part B of this Part of this Schedule shall apply as though references to “design package” were to “traffic management plan”.
Part B – Change Approval Process
385. This Part B sets out the approval process to be followed in respect of the consultation and agreement of any changes (other than those which will have no adverse impact on the NSMP operations) required to the design package after its approval under the design approval process above.
386. The undertaker shall submit any such change required to the design package (other than those which will have no adverse impact on the NSMP operations) (a “change request”) to the NSMP entity for consultation, review and approval.
387. Following submission of the change request to the NSMP entity, the parties agree to actively consult with each other so as to achieve approval by the NSMP entity of the change request within ten working days of receipt by the NSMP entity of the change request. As part of that consultation the parties agree to adhere to the following—
(a)the NSMP entity must, within ten business days of the date of receipt of the change request, notify in writing the undertaker—
(i)of its approval of all or any part of the change request;
(ii)of its disapproval of all or any part of the change request including the reasons for disapproval of any part of the change request; or
(iii)any further or other information, data and documents that the NSMP entity reasonably requires, including, without limitation any modified documents or drawings;
(b)within five business days of the undertaker providing any further information pursuant to sub-paragraph (a)(iii) above, or providing material reasons why any changes requested by the NSMP entity (as part of its response pursuant to sub-paragraph (a)(ii) or (iii)) cannot be implemented or further information cannot be provided, the NSMP entity and the undertaker will actively consult with each other for the purposes of agreeing the change request; and
(c)if agreement between the parties cannot be reached before the end of the relevant period pursuant to sub-paragraph (a) or (b) above (or such alternate timescales as are agreed between the parties) the matter will be treated as a dispute to be resolved in accordance with paragraph 401 of this Part.
388. In the event the NSMP entity does not provide a response to the undertaker in accordance with the timescales set out in paragraph 386(a) or (b) above, the NSMP entity shall be deemed to have given their approval to the change request.
389. Once approved, the undertaker shall issue one (1) paper copy and one (1) electronic copy of the documents comprising any approved change request and compile and maintain a register of the date and contents of any such change request.
Part C – Approval Principles
390. Any approval of the NSMP entity required under Part A or Part B of this Part of this Schedule must not (subject to paragraphs 390 and 391 below) be unreasonably withheld or delayed but may be given subject to the NSMP requirements (with respect to relevant works package A) and in considering any request to agree or approve details under Part A or B the NSMP Entity must make its decision in accordance with—
(a)with respect to relevant works package A, the approval principles set out at paragraphs 390 to 394 of this Part; and
(b)with respect to relevant works package B, with the approval principles set out at paragraphs 395 and 396 of this Part.
391. Where the NSMP entity can reasonably demonstrate that any part of the relevant works package A will materially adversely affect the uninterrupted and unimpeded operation, safety and maintenance of, or access to, the NSMP operations it is entitled to withhold its authorisation until the undertaker can demonstrate to the reasonable satisfaction of the NSMP entity that such part of relevant works package A will not materially adversely affect the uninterrupted and unimpeded operation, safety and maintenance of, or access to, the NSMP operations, having regard to the measures of any approved or proposed traffic management plan. A material adverse effect includes any impediment, diminution, restriction or interruption on the NSMP entity’s access to the access road which runs across plots 108, 103 and 106.
392. Subject to paragraph 393, below, it shall be reasonable for the NSMP entity to withhold approval to any works comprised in relevant works package A—
(a)which shall include physical works on, depositing of materials on or stopping up of plots 108, 103 and 106 but not the passage of reasonable construction traffic over these plots (which shall be subject to any approved traffic management plan or any traffic management plan submitted as part of the design package);
(b)which involve any resurfacing or redevelopment of the access road between the TGLP freehold and Seal Sands Road and the continuation of that access road within the TGLP freehold unless a working method has been submitted and approved by the NSMP entity which amongst any other requirements of the NSMP entity demonstrates access will be continuously maintained and will be no less convenient for the NSMP entity;
(c)which require access for construction traffic over the access road between the TGLP freehold and Seal Sands Road and the continuation of that access road within the TGLP freehold, other than—
(i)over plots 98, 108, 103, 105 and 106 as strictly required for construction of Work Number 2A within plot 105; or
(ii)over plots 98, 108 and 103 as strictly required for the implementation of Work Numbers 2 and 10 on plots 110, 112, 113 and 114,
in each case subject to the approved traffic management plan or any proposed traffic management plan submitted as part of the relevant design package;
(d)which include any construction or laydown area on the TGLP freehold, other than a temporary laydown area within plot 105 for materials required for the construction of Work Number 2A within plot 105; or
(e)which requires the stopping up of Seal Sands Road or the private road (parts of which runs through plots 103, 106 and 108) either temporarily or permanently.
393. It will be unreasonable for the NSMP entity to withhold approval under sub-paragraphs 391(a) and (c), on grounds relating to access to the NSMP operations (as required under the NSMP requirements) if the design package submitted demonstrates that relevant works package A will be undertaken in accordance with any approved traffic management plan.
394. The undertaker and the NSMP entity must, in carrying out their obligations in relation to the traffic management plan and approval of the design package for relevant works package A—
(a)co-operate with each other with a view to ensuring—
(i)the compatibility of the authorised development and the NSMP operations;
(ii)the co-ordination of the construction programming of the authorised development and the NSMP operations; and
(iii)the achievement of the NSMP requirements; and
(b)use reasonable endeavours to avoid any conflict arising from the carrying out of the authorised development and the NSMP operations, having regard always to the NSMP requirements.
395. It shall be reasonable for the NSMP entity to withhold approval to any works comprised in relevant works package B, or to impose conditions on any approval having regard to the requirement for—
(a)uninterrupted and unimpeded emergency access with or without vehicles to the NSMP operations at all times; and
(b)reasonable access with or without vehicles to inspect, repair, replace and maintain and ensure the continuing safety and operation or viability of the NSMP operations.
396. The undertaker and the NSMP entity must, in carrying out their obligations in relation to the approval of the design package for relevant works package B—
(a)co-operate with each other with a view to ensuring—
(i)the compatibility of the authorised development and the NSMP operations; and
(ii)the co-ordination of the construction programming of the authorised development and the NSMP operations; and
(b)use reasonable endeavours to avoid any conflict arising from the carrying out of the authorised development and the NSMP operations, having regard always to the approval principles in paragraph 395.
397. If any circumstance arises resulting from relevant works package A which causes any interruption to the operation or maintenance of or access to the NSMP operations or damage to the NSMP property the undertaker shall procure its immediate remediation.
398. In undertaking any works in relation to the NSMP operations or exercising any rights relating to or affecting the NSMP operations, the undertaker must comply with such conditions, requirements or regulations relating to uninterrupted operation and access, health, safety, security and welfare as are operated in relation to access to or activities in the NSMP operations, provided the same are provided to the undertaker prior to approval of the design package.
399. For the benefit of NSMP, the undertaker must not exercise the powers granted under this Order so as to hinder or prevent access via the access road between the TGLP freehold and Seal Sands Road and the continuation of that access road within the TGLP freehold other than as expressly provided for in an approved traffic management plan or approved design package.
400.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 375 any damage is caused to NSMP operations or there is any interruption in any service provided, or in the supply of any goods, by the NSMP entity, the undertaker must—
(a)bear and pay the cost reasonably incurred by the NSMP entity in making good such damage or restoring the supply; and
(b)make reasonable compensation to the NSMP entity for any other expenses, loss, damage, penalty or costs incurred by the NSMP entity, 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 the NSMP entity or its agents.
(3) The NSMP entity 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, which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(4) The NSMP entity must use its reasonable endeavours to mitigate in whole or in part any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph 400 applies.
401. Any difference or dispute arising between the undertaker and the NSMP entity under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and the NSMP entity, be referred to and settled by arbitration in accordance with article 47 (arbitration).
402. The undertaker must not use plots 105 or 106 to access plots 110, 112, 113 or 114.
403. The undertaker must not use plots 103 or 108 to access plots 110, 112, 113 or 114 if an alternate access agreement has been concluded.
404. Where an alternate access agreement has been concluded, reference to plots 110, 112, 113 and 114 in the definitions of “relevant works package A” and “traffic management plan” is taken to be deleted.