# The M4 Motorway (Junctions 3 to 12) (Smart Motorway) Development Consent Order 2016, Paragraph 109

Extent: E+W+S

(1) Subject to the following provisions of this paragraph, the undertaker must repay to a protected person all expenses reasonably incurred by that protected person 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 106(2), including any costs reasonably incurred in connection with the acquisition of rights under paragraph 106(3), and in watching and inspecting the execution of works under paragraph 108(2) and in making reasonable requirements under paragraph 108(3).
(2) The value of any apparatus removed under the provisions of this Part of this Schedule is to be deducted from any sum payable under sub-paragraph (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 at the election of the protected person; 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 at the election of the protected person and is not agreed by the undertaker or, in default of agreement, is not determined by arbitration in accordance with article 42 (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 protected person in question by virtue of sub-paragraph (1) is to 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.

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Source: https://www.legislation.gov.uk/uksi/2016/863/schedule/9/paragraph/109 (the official version)
Page: https://openlegislation.uk/m4-motorway-junctions-3-to-12-smart-motorway-development-consent-order-2016/schedule-9/paragraph-109
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.