Paragraph 39 Expenses and costsI1
England, Wales and Scotland
Subject to the following provisions of this paragraph, the undertaker must repay to Northern Powergrid within 50 days of receipt of a valid VAT invoice all reasonable and proper expenses costs or charges incurred by Northern Powergrid—
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 36(3) including without limitation—
any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or the exercise of statutory powers for such apparatus including without limitation in the event that it is agreed Northern Powergrid elects to use compulsory purchase powers to acquire any necessary rights under paragraph 36(4) all costs reasonably incurred as a result of such action;
in connection with the cost of the carrying out of any diversion work or the provision of any alternative apparatus;
the cutting off of any apparatus from any other apparatus or the making safe of redundant apparatus;
the approval of plans;
the carrying out of protective works, plus a capitalised sum to cover the cost of maintaining and renewing permanent protective works;
the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Part of this Schedule); and
in assessing and preparing a design for its apparatus to address and accommodate the proposals of the undertaker whether or not the undertaker proceeds to implement those proposals or alternative or none at all,
provided that if it so prefers Northern Powergrid may abandon apparatus that the undertaker does not seek to remove in accordance with paragraph 36(2) having first decommissioned such apparatus.
Where any payment falls due pursuant to sub-paragraph (1) Northern Powergrid—
must provide an itemised invoice or reasonable expenses claim to the undertaker; and
must provide ‘reminder letters’ to the undertaker for payment to be made within the 50 days on the following days after the invoice or reasonable expenses claim to the undertaker—
15 days (‘reminder letter 1’);
29 days (‘reminder letter 2’);
43 days (‘reminder letter 3’); and
may commence debt proceedings to recover any unpaid itemised invoice or reasonable expenses claim on the fifty first day of receipt of the same where payment has not been made.
Nothing in sub-paragraph (1) requires the undertaker to repay any expense cost or charge for which Northern Powergrid is liable to the undertaker or a third party as a consequence of any default, negligence or omission by Northern Powergrid, its officers, employees, servants, contractors or agents.
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 of this Schedule that value being calculated after removal and for the avoidance of doubt, if the apparatus removed under the provisions of this Part of this Schedule has nil value, no sum will be deducted from the amount payable under sub-paragraph (1) if in accordance with the provisions of this Part of this Schedule—
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
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 61 (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 Northern Powergrid by virtue of sub-paragraph (1) must be reduced by the amount of that excess save where it is not possible on account of project time limits and/or supply issues to obtain the existing type of operations, capacity, dimensions or place at the existing depth in which case full costs must be borne by the undertaker.
For the purposes of sub-paragraph (4)—
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 an extension is required in consequence of the execution of any such works as are referred to in paragraph 36(2) (removal of apparatus); and
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.
The undertaker will not be liable for any claim by Northern Powergrid for charges, costs or expenses under this paragraph 39 unless prior to Northern Powergrid undertaking the relevant works or incurring those charges, costs or expenses, the undertaker has—
received an estimate of that charge, cost or expense along with all necessary supporting information required to evidence the amount and reasonableness of, and the reasonable steps taken to minimise, the charge, cost or expense and a timescale in which the undertaker will be required to make payment; and
approved the estimate in writing (such approval not to be unreasonably withheld or delayed),
and Northern Powergrid must not commence any work in relation to which an estimate is submitted until it has been agreed in writing by the undertaker.
The undertaker will use reasonable endeavours to agree the amount of any estimates submitted to it under sub-paragraph (6) within 15 working days of receipt, and must acknowledge as part of its approval that any estimate is only an estimate and may be subject to change.
Subject to Northern Powergrid updating the undertaker by way of submission of an updated estimate for approval under sub-paragraph (6) where any charges, costs or expenses are anticipated to exceed an approved estimate, the undertaker’s approval of an estimate must in no way limits National Powergrid’s recovery under this paragraph 39, and the undertaker must pay the actual costs incurred by Northern Powergrid and submitted for payment whether such costs are above or below the estimate provided and upon making payment under this paragraph, the undertaker may—
confirm to Northern Powergrid that the charge, cost or expense is accepted; or
confirm to Northern Powergrid that the charge, cost or expense is not accepted and the reasons why it considers this to be the case,
and Northern Powergrid must take in to account any representations made by the undertaker in accordance with sub-paragraph (8)(b) and must following receipt of such representations confirm whether or not the requested refund, or any part thereof, is accepted or rejected, and the reasons why it considered this to be the case; and make payment of the requested refund, or part of it which is not rejected, as applicable (such confirmation or payment not to be unreasonably withheld or delayed).
Either party may refer any difference or dispute arising out of sub-paragraph (8)(b) to arbitration in accordance with article 61 (arbitration) of the Order.
Annotations
Commencement
- I1
Sch. 14 para. 39 in force at 27.2.2025, see art. 1