Paragraph 235 Constructability PrinciplesI1

England, Wales and Scotland

(1)

The undertaker (unless otherwise agreed, or in an emergency relating to potential death or serious injury, or where it would render the Specified Works, NZT Apparatus, Anglo American Specified Works or Anglo American Apparatus unsafe, or put the undertaker in breach of its statutory duties) must—

(a)

in respect of all Shared Areas—

(i)

carry out the works in such a way that will not prevent or interfere with the continued construction of the Anglo American Specified Works, or the maintenance or operation of the Anglo American Apparatus unless the action leading to such prevention or interference has the prior written consent of Anglo American;

(ii)

ensure that works carried out to, or placing of NZT Apparatus beneath, roads along which construction or maintenance access is required by Anglo American in respect of any Anglo American Apparatus (including the overland conveyor) will be of adequate specification to bear the loads;

(iii)

prior to the undertaker carrying out any of the Specified Works in any part of any Shared Area, the undertaker must in respect of the Specified Work concerned—

(aa)

submit a construction programme and a construction traffic and access management plan in respect of that area to Anglo American and obtain agreement thereof from Anglo American (noting that a single construction traffic and access management plan may be completed for one or more parts of each Shared Area or more than one Shared Area and may be subject to review if agreed between the Parties) and without prejudice to the generality of sub-paragraph (i) the plans must include such measures and construction practices or processes as are necessary to satisfactorily address the relevant issues in relation to construction traffic and access management during construction that are set out in this paragraph 234;

(bb)

where applicable, confirm to Anglo American in writing the identity of the client for the purposes of the relevant Construction Design and Management Regulations applicable from time to time; and

(cc)

obtain the agreement of Anglo American to the location of any temporary laydown areas where such areas are not those referred to in Table 5-2 of the environmental statement;

(iv)

update the monthly construction programme approved under sub-paragraph (iii)(aa) monthly and supply a copy of the updated programme to Anglo American every month;

(v)

at all times construct the Specified Works in compliance with the relevant approved construction programme and construction traffic and access management plan;

(vi)

notify Anglo American of any incidences which occur as a result of, or in connection with, the Specified Works which are required to be reported under the relevant Reporting of Injuries Diseases and Dangerous Occurrences Regulations applicable from time to time within 24 hours of the duty to report arising;

(vii)

provide comprehensive, as built, drawings of the Specified Works (including, for the avoidance of doubt, buried pipelines) within three months of the completion of each of the Specified Works;

(viii)

following the completion of each of the Specified Works unless otherwise agreed in writing by Anglo American fully reinstate the affected area (with the exception only of the retention of the permanent elements of the Specified Works) and remove all waste/surplus materials; and

(ix)

obtain the prior written consent of Anglo American for the use of any re-cycled aggregate material within the Shared Area;

(b)

in respect of Shared Area 1, construct the Specified Works in such a way that—

(i)

construction activities do not interfere with the ability of Anglo American to construct and operate the shiploader within Shared Area 1;

(ii)

construction access is maintained for Anglo American to undertake the construction of its ship loader, associated equipment and quay and is safeguarded;

(iii)

the use by Anglo American of a laydown facility within Shared Area 1 in connection with its construction activities is appropriately protected; and

(iv)

no works are carried out in that part of Shared Area 1 which is the subject of the AA Easements;

(c)

in respect of Shared Area 2, construct the Specified Works in such a way that—

(i)

the construction access required by Anglo American along Shared Area 2 for the construction of the quay authorised by the York Potash Order is safeguarded at all times;

(ii)

access for Anglo American and third parties to, and along, the pipeline corridor within Shared Area 2 is safeguarded at all times;

(iii)

Anglo American has unhindered access to manage the discharge facility within the NWL Facility and to empty their leachate chambers at all times so as to be able to comply with its obligations under the EA Permit;

(iv)

access via the area colloquially known as the Eston Triangle is safeguarded; and

(v)

the construction, operation and maintenance of any overland conveyor to be located within Shared Area 2 is not impaired;

(d)

in respect of Shared Area 3, construct the Specified Works in such a way that—

(i)

Anglo American is able to access the gas monitoring facility within the NWL Facility at all times so as to be able to comply with its obligations under the EA Permit;

(ii)

the operation and maintenance of boreholes BH0627 and BH0628 is not interfered with; and

(iii)

the construction, operation and maintenance of any overland conveyor to be located within Shared Area 3 is not impaired;

(e)

in respect of Shared Area 4, construct the Specified Works in such a way that—

(i)

use by Anglo American of laydown areas within Shared Area 4 in connection with construction activities for the Woodsmith Project is appropriately protected;

(ii)

access to the rail crossing point within or adjacent to Shared Area 4 for Anglo American is safeguarded;

(iii)

the operation and maintenance of borehole BH622 is not interfered with; and

(iv)

the construction, operation and maintenance of any overland conveyor to be located within Shared Area 4 is not impaired; and

(f)

in respect of Shared Area 5, construct the Specified Works in such a way that the construction, operation and maintenance of any overland conveyor to be located within Shared Area 5 is not impaired.

(2)

The undertaker must not do anything within Shared Areas 2,3, 4 and 5 which will constrain the ability of Anglo American to construct and operate an overland conveyor along the route which is the subject of the STDC Agreement or do anything which will compromise the construction, operational efficiency or maintenance of that conveyor or make the construction, operation or maintenance of it materially more expensive (unless such difference in cost (including any difference attributable to delay) is agreed to be provided by the undertaker).

(3)

Any spoil from the Anglo American Specified Works or the Specified Works (including contaminated material) must be dealt with in accordance with a spoil management plan to be agreed between the Parties in advance of the work by either Party generating such spoil beginning.

(4)

In considering a request for any consent under the provisions of this Part of this Schedule, Anglo American must not—

(a)

request an additional construction traffic and access management plan or a spoil management plan if such a plan has already been approved pursuant to sub-paragraph (1)(a)(iii)(aa) (as relevant in respect of a traffic and access management plan) or agreed pursuant to sub-paragraph (3) (in respect of a spoil management plan); and

(b)

refuse consent for reasons which conflict with the contents of documents approved by Anglo American pursuant to the provisions of this paragraph and paragraph 235.

Annotations

Commencement

I1: Sch. 12 para. 235 in force at 11.3.2024, see art. 1