71. For the protection of CF Fertilisers, the following provisions have effect, unless otherwise agreed in writing between the undertaker and CF Fertilisers.
72. In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable CF Fertilisers to undertake its operations on the CF Fertilisers site in a manner not less efficient than previously;
“apparatus” means any mains, pipes or other apparatus belonging to or maintained by CF Fertilisers;
“CF Fertilisers” means CF Fertilisers UK Limited (company number 03455690) whose registered address is Head Office Building, Ince, Chester, Cheshire CH2 4LB and any successor in title to the CF Fertilisers site;
“the CF Fertilisers site” means the land in between Haverton Hill Road and Belasis Avenue, adjacent to the Order limits and which is owned and operated by CF Fertilisers;
“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;
“the proposed CF pipeline” the proposed pipeline to service the CF Fertilisers site and which is to be owned or for the benefit of CF Fertilisers and to be used for the passage of multi-purpose hydrocarbon fuels and all ancillary apparatus including such works and apparatus properly appurtenant to the pipeline as are specified by section 65(2) of the Pipe-lines Act 1962 (meaning of “pipe-line”);
“the respective authorised developments” means the authorised development and the proposed CF pipeline respectively; and
“works details” means—
plans and sections;
details of the proposed method of working and timing of execution of works;
details of vehicle access routes for construction and operational traffic; and
any further particulars provided in response to a request under paragraph79.
73. This Part does not apply to apparatus in respect of which the relations between the undertaker and CF Fertilisers are regulated by the provisions of Part 3 (Street works in England and Wales) of the 1991 Act.
74. Regardless of the temporary prohibition or restriction of use of streets under the powers conferred by article 13 (temporary stopping up of streets, public rights of way and access land), CF Fertilisers is at liberty at all times to take all necessary access across any such street and to execute and do all such works and things in, upon or under any such street as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the prohibition or restriction was in that street.
75.—(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 over which access to any apparatus is enjoyed or requires that apparatus is relocated or diverted, that apparatus must not be removed under this Part, and any right of CF Fertilisers to maintain that apparatus in that land and to gain access to it must not be extinguished (or otherwise made less advantageous), until alternative apparatus (or alternative rights as the case may be) has been constructed (or granted) and is in operation, and access to it has been provided, to the reasonable satisfaction of CF Fertilisers in accordance with sub-paragraphs (2) to (7).
(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 CF Fertilisers written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order CF Fertilisers reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to CF Fertilisers 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, CF Fertilisers must, on receipt of a written notice to that effect from the undertaker, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) Any alternative apparatus to be constructed in land of the undertaker under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between CF Fertilisers and the undertaker or in default of agreement settled by arbitration in accordance with article 47 (arbitration).
(5) CF Fertilisers must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 47 (arbitration), and after the grant to CF Fertilisers of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the undertaker to be removed under the provisions of this Part.
(6) Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to CF Fertilisers that it desires itself to execute any work, or part of any work, in connection with the construction or removal of apparatus in any land controlled by the undertaker, that work, instead of being executed by CF Fertilisers, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of CF Fertilisers.
(7) Nothing in sub-paragraph (6) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
76.—(1) Where, in accordance with the provisions of this Part, the undertaker affords to CF Fertilisers 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 must be granted—
(a)upon such terms and conditions as may be agreed between the undertaker and CF Fertilisers or in default of agreement settled by arbitration in accordance with article 47; and
(b)in compliance with all health and safety, environmental and regulatory requirements and relevant industry standards.
(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 CF Fertilisers 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 CF Fertilisers as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.
77.—(1) Not less than 28 days before starting the execution of any works comprised in the authorised development that are near to, or will or may affect, any apparatus the removal of which has not been required by the undertaker under paragraph 76(2), the undertaker must submit to CF Fertilisers the works details for the proposed works and such further particulars as CF Fertilisers may, within 28 days from the day on which the works details are submitted under this paragraph, reasonably require.
(2) No works referred to in sub-paragraph (1) are to be commenced until the works details in respect of those works submitted under sub-paragraph (1) have been approved by CF Fertilisers.
(3) Any approval of CF Fertilisers required under sub-paragraph (1) must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as CF Fertilisers may require to be made for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and CF Fertilisers is entitled to watch and inspect the execution of those works.
(4) The works referred to in sub-paragraph (1) must be carried out in accordance with the works details approved under sub-paragraph (2) and any requirements imposed on the approval under sub-paragraph (3).
(5) Where there has been a reference to an arbitrator in accordance with paragraph 87 and the arbitrator gives approval for the works details, the works referred to in sub-paragraph (1) must be carried out in accordance with the approval and conditions contained in the decision of the arbitrator under paragraph 87.
(6) If CF Fertilisers 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 7 apply as if the removal of the apparatus had been required by the undertaker under paragraph 76(2).
(7) Nothing in this paragraph precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.
(8) The undertaker is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to CF Fertilisers notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
78. Paragraphs 79 to 82 of this Part only apply where prior to the undertaker commencing any part of Work Numbers 2A or 6 CF Fertilisers has begun (but not completed) construction of the proposed CF pipeline anywhere within the Order limits.
79. Before commencing any part of the authorised development which would have an effect on the operation or maintenance of the proposed CF pipeline or access to it, the undertaker must submit to CF Fertilisers the works details for the proposed works and such further particulars as CF Fertilisers may, within 28 days from the day on which the works details are submitted under this paragraph, reasonably require.
80. No works comprising any part of the authorised development which would have an effect on the operation or maintenance of the proposed CF pipeline or access to it are to be commenced until the works details in respect of those works submitted under paragraph 79 have been approved by CF Fertilisers.
81. Any approval of CF Fertilisers required under paragraph 80 must not be unreasonably withheld or delayed but may be given subject to such reasonable requirements as CF Fertilisers may require to be made for the routing, construction, safety, operational viability and maintenance of the proposed CF pipeline.
82.—(1) The authorised development must be carried out in accordance with the works details approved under paragraph 80 and any requirements imposed on the approval under paragraph 81.
(2) Where there has been a reference to an arbitrator in accordance with paragraph 87 and the arbitrator gives approval for the works details, the authorised development must be carried out in accordance with the approval and conditions contained in the decision of the arbitrator under paragraph 87.
(3) Nothing in paragraphs 79 to 82 precludes the undertaker from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of paragraphs 79 to 84 apply to and in respect of the new plan, section and description.
83. Any notices to be served on CF Fertilisers in accordance with this Part shall be served in writing on the registered company address and on the General Counsel at CF Fertilisers, Ince, Chester, Cheshire CH2 4LB.
84.—(1) This paragraph applies insofar as—
(a)the construction of the authorised development would have the potential to have an effect on the exercise by CF Fertilisers of its rights in connection with the proposed CF pipeline within the Order limits;
(b)the construction of the respective authorised developments may be undertaken within the Order limits concurrently; or
(c)the construction of one of the respective authorised developments would have an effect on the operation or maintenance of the other respective authorised development or access to it.
(2) Where this paragraph applies the undertaker and CF Fertilisers must—
(a)co-operate with each other with a view to ensuring—
(i)the compatibility of the respective authorised developments;
(ii)the co-ordination of construction programming and the carrying out of the respective authorised developments;
(iii)that access for the purposes of constructing the respective authorised developments is maintained for the undertaker, CF Fertilisers and their respective employees, contractors and sub-contractors;
(iv)the undertaker and CF Fertilisers have the appropriate risk assessments, method statements (RAMS) and construction design management (CDM) in place and are able to comply with their obligations in this respect; and
(v)that operation, maintenance and access to the respective authorised developments is maintained for the undertaker and CF Fertilisers;
(b)use reasonable endeavours to avoid any conflict arising from the carrying out of the respective authorised developments.
85.—(1) Subject to the following provisions of this paragraph, the undertaker must repay to CF Fertilisers the reasonable expenses incurred by it 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 76(2).
(2) There is to be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part, that value being calculated and agreed after removal.
(3) If in accordance with the provisions of this Part—
(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was, and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 47 (arbitration) to be necessary,
then, if such placing involves cost in the construction of works under this Part 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 CF Fertilisers by virtue of sub-paragraph (1) is to be reduced by the amount of that excess. The provisions of this sub-paragraph (3) shall only apply where the alteration is at the election of CF Fertilisers and not where such change to the existing type, capacity, dimensions or depth is as a result of industry requirements, legislation or environmental or health and safety considerations.
(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 where such extension is required in consequence of the execution of any such works as are referred to in paragraph 76(2); and
(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to CF Fertilisers 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 seven years and six months earlier so as to confer on CF Fertilisers 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.
86.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of CF Fertilisers, or there is any interruption in any service provided, or in the supply of any goods, by CF Fertilisers, the undertaker must—
(a)bear and pay the cost reasonably incurred by CF Fertilisers in making good such damage or restoring the supply; and
(b)make reasonable compensation to CF Fertilisers for any other expenses, loss, damages, penalty or costs incurred by CF Fertilisers, 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 CF Fertilisers, its officers, employees, servants, contractors or agents.
(3) CF Fertilisers 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 subject to its obligations in sub-paragraph (4).
(4) If the Undertaker becomes responsible for a claim or demand pursuant to sub-paragraph (3) it must—
(a)keep CF Fertilisers fully informed of the developments and material elements of the proceedings;
(b)take account of the views of CF Fertilisers before taking any action in relation to the claim;
(c)not bring the name of CF Fertilisers or any related company into disrepute and act in an appropriate and professional manner when disputing any claim; and
(d)not pay or settle such claims without the prior written consent of CF Fertilisers, such consent not to be unreasonably withheld or delayed.
(5) CF Fertilisers must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph 86 applies. If requested to do so by the undertaker, CF Fertilisers must provide an explanation of how the claim has been minimised or details to substantiate any cost or compensation claimed pursuant to sub-paragraph (1). The undertaker shall only be liable under this paragraph 86 for claims reasonably incurred by CF Fertilisers.
87. Any difference or dispute arising between the undertaker and CF Fertilisers under this Part of this Schedule must, unless otherwise agreed in writing between the undertaker and CF Fertilisers, be referred to and settled by arbitration in accordance with article 47 (arbitration).