Paragraph 35 Removal of apparatus

If, in the exercise of the agreement reached in accordance with paragraph 34 or in any other authorised manner, the undertaker acquires any interest in any land in which any apparatus is placed or requires that the utility undertaker’s apparatus is relocated or diverted, that apparatus must not be removed under this Part of this Schedule and any right of the utility undertaker to maintain or use that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the utility undertaker in accordance with sub-paragraphs (2) to (7).

If for the purpose of executing any works in, on or under any land purchased or acquired, held, appropriated or used under this Order, the undertaker requires the removal of any apparatus placed in that land, it must give to the utility undertaker at least 56 days’ written notice of that requirement, together with a plan 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 the utility undertaker reasonably needs to remove any of its apparatus) the undertaker must, subject to sub-paragraph (3), afford to the utility undertaker to its reasonable satisfaction (taking into account paragraph 36(1)) the necessary facilities and rights for the construction of alternative apparatus in other land and subsequently for the maintenance and use of that apparatus.

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, the utility undertaker 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 with the undertaker’s assistance if reasonably required by the utility undertaker, save that this obligation does not extend to the requirement for the utility undertaker to use its powers of compulsory acquisition.

Any alternative apparatus to be constructed in land of or land secured by 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 the utility undertaker and the undertaker or in default of agreement settled by arbitration in accordance with article 20 (arbitration).

The utility undertaker must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 20, and subject to the grant to the utility undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), then proceed and as soon as reasonably practicable 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 of this Schedule.

Regardless of anything in sub-paragraph (5), if the undertaker gives notice in writing to the utility undertaker that the undertaker desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of the undertaker, and the utility undertaker consents in writing to the execution of that work (such consent not to be unreasonably withheld), that work, instead of being executed by the utility undertaker, must be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker, which shall include compliance by the undertaker with all relevant statutory requirements and the utility undertaker’s specifications and requirements relating to the execution of that work (and the utility undertaker shall be entitled to inspect such works to verify that they have been carried out in accordance with such requirements and specifications). At all times when carrying out any authorised works, the undertaker must comply with the utility undertaker’s policies for development near overhead lines and HSE’s guidance note 6 “Avoidance of Danger from Overhead Lines”.

If the undertaker gives notice in writing to the utility undertaker in accordance with sub-paragraph (6) and the utility undertaker does not respond to the notice within 56 days of receipt to confirm whether it consents to the execution of that work by the undertaker, the utility undertaker shall be deemed to have granted consent, subject to the superintendence of that work by the utility undertaker, if given, and to the works being carried out to the reasonable satisfaction of the utility undertaker, which shall include compliance by the undertaker with all relevant statutory requirements relating to the execution of that work.

Nothing in sub-paragraphs (6) or (7) authorises the undertaker to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, within 1 metre of other apparatus which does not form part of those works.