6.—(1) For the purposes of this paragraph—
“EMI” means, subject to sub-paragraph (2) below, electromagnetic interference with Railtrack’s apparatus generated by the operation of the undertaker’s apparatus where such interference is of a level which adversely affects the safe operation of Railtrack’s apparatus;
“the undertaker’s apparatus” means any electric lines, circuits, wires, apparatus, equipment, rolling stock and other works of any description owned or used (or intended to be used) by the undertaker for the purposes of operating the authorised transit system; and
“Railtrack’s apparatus” means any lines, circuits, wires, apparatus or equipment owned or used by Railtrack for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.
(2) This paragraph shall apply to EMI only to the extent that such EMI is not attributable to any change to Railtrack’s apparatus carried out after approval of plans under paragraph 8 below for the relevant part of the authorised works giving rise to EMI (unless the undertaker has been notified in writing before the approval of such plans of the intention to make such change).
(3) Subject to sub-paragraph (5) below, the undertaker shall in the design and construction of the authorised transit system and its rolling stock take all measures necessary to prevent EMI and shall establish with Railtrack (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4) In order to facilitate the undertaker’s compliance with sub-paragraph (3) above—
(a)the undertaker shall consult Railtrack as early as reasonably practicable in order to identify all Railtrack’s apparatus which may be at risk of EMI and thereafter shall continue to consult Railtrack (both before and after formal submission of plans under paragraph 8 below) in order to identify all potential causes of EMI and the measures required to eliminate them;
(b)Railtrack shall make available to the undertaker all information in Railtrack’s possession reasonably requested by the undertaker in respect of Railtrack’s apparatus identified pursuant to sub-paragraph (4)(a) above; and
(c)Railtrack shall allow the undertaker reasonable facilities for the inspection of Railtrack’s apparatus pursuant to sub-paragraph (4)(a) above.
(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Railtrack’s apparatus, Railtrack shall not withhold its consent unreasonably to modifications of that apparatus, but the means of prevention and the method of their execution shall be selected in Railtrack’s reasonable discretion and subject to the railway operational procedures, and in relation to such modifications paragraph 8 below shall have effect subject to this sub-paragraph.
(6) If at any time prior to the opening of the authorised transit system to fare-paying passenger traffic, and notwithstanding any measures adopted pursuant to sub-paragraph (3) above, the testing or commissioning of the authorised transit system or its rolling stock causes EMI then the undertaker shall immediately upon receipt of notification by Railtrack of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5) above) to Railtrack’s apparatus.
(7) In the event of EMI having occurred—
(a)the undertaker shall afford reasonable facilities to Railtrack for access to the undertaker’s apparatus in the investigation of such EMI;
(b)Railtrack shall afford reasonable facilities to the undertaker for access to Railtrack’s apparatus in the investigation of such EMI; and
(c)Railtrack shall make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of Railtrack’s apparatus or such EMI.
(8) Where Railtrack approves modifications to Railtrack’s apparatus pursuant to sub-paragraphs (5) or (6) above—
(a)Railtrack shall allow the undertaker reasonable facilities for the inspection of the relevant part of Railtrack’s apparatus; and
(b)any modifications to Railtrack’s apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the undertaker in accordance with paragraph 11 below.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 18 below shall apply to the costs and expenses reasonably incurred or losses suffered by Railtrack in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purposes of paragraph 16 below any modification to Railtrack’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.
(11) In relation to any dispute arising under this paragraph the reference in article 71 above to the Institution of Civil Engineers shall be read as a reference to the Institution of Electrical Engineers.