11.—(1) In this paragraph—E+W
“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail’s apparatus generated by the operation of the authorised works (including the operation of tramcars using the tramway comprised in the works) where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and
“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised works) which are owned or used by Network Rail Infrastructure Limited 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 Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the authorised works giving rise to EMI (unless the promoter has been given notice in writing before the approval of those plans of the intention to make such change).
(3) Subject to sub-paragraph (5), the promoter shall in the design and construction of the authorised works take all measures necessary to prevent EMI and shall establish with Network Rail Infrastructure Limited (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4) In order to facilitate the promoter’s compliance with sub-paragraph (3)—
(a)the promoter shall consult with Network Rail Infrastructure Limited as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter shall continue to consult with Network Rail Infrastructure Limited (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;
(b)Network Rail Infrastructure Limited shall make available to the promoter all information in the possession of Network Rail Infrastructure Limited reasonably requested by the promoter in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and
(c)Network Rail Infrastructure Limited shall allow the promoter reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).
(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail Infrastructure Limited shall not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution shall be selected in the reasonable discretion of Network Rail Infrastructure Limited, and in relation to such modifications paragraph 5(1) shall have effect subject to this sub-paragraph.
(6) If at any time prior to the commencement of regular revenue-earning operations on the authorised tramway comprised in the authorised works and regardless of any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then the promoter shall immediately upon receipt of notification by Network Rail Infrastructure Limited 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 promoter’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)) to Network Rail’s apparatus.
(7) In the event of EMI having occurred—
(a)the promoter shall afford reasonable facilities to Network Rail Infrastructure Limited for access to the promoter’s apparatus in the investigation of such EMI;
(b)Network Rail Infrastructure Limited shall afford reasonable facilities to the promoter for access to Network Rail’s apparatus in the investigation of such EMI; and
(c)Network Rail Infrastructure Limited shall make available to the promoter any additional material information in its possession reasonably requested by the promoter in respect of Network Rail’s apparatus or such EMI.
(8) Where Network Rail Infrastructure Limited approves modifications to Network Rail’s apparatus pursuant to sub-paragraph (5) or (6)—
(a)Network Rail Infrastructure Limited shall allow the promoter reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and
(b)any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the promoter in accordance with paragraph 6.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) shall apply to the costs and expenses reasonably incurred or losses suffered by Network Rail Infrastructure Limited through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purpose of paragraph 10(a) any modifications to Network Rail’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 82 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Electrical Engineers.
Commencement Information
I1Sch. 14 para. 11 in force at 9.6.2009, see art. 1