Commentary on provisions of the Act Part 2: Electricity, gas, water and sewerage undertakers
Paragraph 18 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker (or the Secretary of State, in relation to those provisions concerning the Secretary of State’s powers under the Act to acquire land) and the undertakers concerned agree to vary them. The undertakers which enjoy the benefit of these provisions are bodies holding licences under the Electricity Act 1989, licensed gas transporters under the Gas Act 1989, and licensed water and sewerage undertakers under the Water Industry Act 1991. Local authorities exercising sewerage functions under arrangements with the local sewerage undertaker under section 97 of the Water Industry Act are also protected.
	The protection extends to the bodies in relation to apparatus belonging to or maintained by them for the purpose of their undertaking and, in the case of water and sewerage undertakers, apparatus which is subject to an agreement or notice to adopt under the Water Industry Act 1991. However the arrangements will not generally apply to apparatus governed by Part 3 of the New Roads and Street Works Act 1991 (which establishes a nation-wide regime governing street works). Accordingly that Act and the regulations and codes of practice made under it (in particular the Street Works (Sharing of Costs of Works) (England) Regulations 2000 and the Code of Practice "Measures necessary where apparatus is affected by major works (diversionary works)") will apply to the undertakers’ apparatus in streets.
	Paragraph 19 sets out the general principle that apparatus is not to be moved under the powers of the Act until replacement apparatus has been provided and is in operation. This principle applies except in exceptional circumstances where a certificate is issued by the appropriate Ministers allowing this requirement to be dispensed with. The appropriate Ministers are the Secretary for State for Transport acting jointly with either the Secretary of State for Environment, Food and Rural Affairs or the Secretary of State for Energy and Climate Change.
	Paragraphs 20 to 24 set out a procedure for dealing with diversion of apparatus (which can be required by either the nominated undertaker or the undertaker concerned) in consequence of the Phase One of High Speed 2 works. This requires the nominated undertaker or the Secretary of State to provide rights and facilities for the replacement apparatus when it is able to do so, but otherwise the undertaker is required to use its best endeavours to obtain these. The terms relating to any such replacement apparatus are to be agreed or otherwise determined in accordance with the disputes procedure under paragraph 31, and any person making a determination under paragraph 31 must have regard to any template provisions issued by the appropriate Ministers (following consultation with the undertakers).
	Paragraph 25 applies to apparatus which is not proposed to be removed: the nominated undertaker is to provide plans of the proposed works near to the apparatus and the undertaker can require protective measures to be undertaken, or require its removal (in which case the procedures under paragraphs 20 to 24 are to apply).
	Paragraphs 26 and 27 are intended to protect continued access to apparatus. In particular they provide that the undertaker is to continue to enjoy the same rights for the purpose of maintaining apparatus in streets which have been permanently stopped up under the powers of the Act.
	Paragraph 28 provides for reimbursement of the undertakers’ costs in connection with the diversion or protection of its apparatus (or arising from the cutting off of apparatus) and paragraph 29 provides an indemnity in respect of damage to apparatus or interruption to the undertakers’ service, caused by the construction of the works. This indemnity includes provision for reasonable compensation for any losses suffered by the undertaker.
	Paragraph 30 provides that, where Network Rail Infrastructure Limited is the nominated undertaker, this Part of the Schedule will have effect subject to any existing agreements Network Rail may have with undertakers.
	Paragraph 31 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of section 64). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the appropriate Ministers who must have regard to any matters specified by those Ministers on making the appointment. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for Ministers to be involved in the resolution of such disputes. The cost of the dispute is to be borne as directed by the appointed decision-maker.