The Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014

PART 3 THE ENVIRONMENT AGENCY

1.  The following provisions shall apply for the protection of the Environment Agency (in this schedule referred to as “the Agency”).

2.  The requirement for consent under Section 109 of the Water Resources Act and Thames Region Land Drainage bylaws 1981 (made pursuant to Section 34 of the Land Drainage Act 1976) shall not be required for the authorised development subject to the conditions contained in this Schedule.

Definitions

3.  In this Schedule—

“authorised project work” means any work forming part of the authorised project;

“baseline monitoring” means any surveys carried out to determine and establish movements of the flood defences due to factors external to the authorised project including but not limited to seasonal variations or diurnal impacts due to tide or temperature;

“CEMP” means the construction environment management plan to be produced for each site in accordance with the CoCP;

“COCP” means the Code of Construction Practice Part A— General Requirements (document reference number APP205.01) or the Code of Construction Practice Part B— Site Specific Requirements (document reference number APP178.03 to APP178.49);

(a)

“construction” includes execution, placing, altering, replacing, relaying, removal and excavation and “construct” and “constructed” shall be construed accordingly;

(b)

“damage” includes but is not limited to scouring, erosion, loss of structural integrity and environmental damage to the drainage work or any flora or fauna dependent on the aquatic environment and “damaged” shall be construed accordingly;

“detailed designs” means any information submitted under paragraph 5(1)a-l;

“drainage work” means any main river and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring or flood storage capacity;

“engineering report” means a report of the structural condition of a flood defence as set out in paragraph 4(1);

“ecological enhancements” means the inclusion of any features integral to or adjacent to the foreshore structures and any new, modified, or replaced flood defences that can support wildlife. This includes, but is not limited to, where practicable, the set back of flood defences to provide inter-tidal habitat and the creation of shelters for juvenile fish;

“environmental duties” means the Agency’s duties in the Environment Act, the Natural Environment and Rural Communities Act 2006 and the Water Environment (Water Framework Directive)(England and Wales) Regulations 2003 (SI 2003 no 3242);

“fishery” means any waters containing fish, and fish in or migrating to or from such waters and the spawn, spawning grounds or food for such fish;

“flood defences” means any bank, wall, embankment, bridge abutments, lock gates or other structure or any appliance (including any supporting anchorage system) that fulfils a function of preventing, or reducing the risk of, flooding to land or property;

“flood defence monitoring plan” means a flood defence monitoring plan prepared in accordance with paragraph 4(2);

“flood defence movement and settlement mitigation plan” means a flood defence movement and settlement mitigation plan prepared in accordance with paragraph 4(5);

“flood storage capacity” means any land, which, taking account of flood defences, is expected to provide flood storage capacity for any main river;

“flood defences likely to be impacted” means—

(c)

all flood defences within the order limits;

(d)

all flood defences within 16m of the order limits of any site;

(e)

all flood defences within the 1mm settlement contour for the final tunnel alignment,

and “likely to impact a flood defence” shall be construed accordingly;

“flood defences likely to be significantly impacted” means those flood defences identified and agreed between the undertaker and the Agency following the submission of relevant engineering reports;

“main river” “means all watercourses shown as such on the statutory main river maps held by the Agency and the Department of Environment, Food and Rural Affairs, including any structure or appliance for controlling or regulating the flow of water into, in or out of the channel;

“maintenance” has the same meaning as article 2 save for the exclusion of the works of inspection;

“protective work” means any authorised project work, or work identified pursuant to the engineering report, necessary for the protection of flood defences and to be carried out prior to the construction of any authorised project work to which the protective work relates;

“remedial works” means any proposed mitigation or measure or measures submitted by the undertaker under paragraph 5(4) or required by the Agency under paragraph 9 or paragraph 10;

“scour and accretion monitoring and mitigation strategy” means a scour and accretion monitoring and mitigation strategy for the specified works in the foreshore to be submitted to the Agency including, but not limited to, results and clarification of existing and further works, and the extent, frequency, and form of the monitoring and mitigation for scour and accretion;

“scour and accretion monitoring and mitigation plan” means a plan drawn up detailing the monitoring and mitigation proposals for each specified work prepared in accordance with the scour and accretion monitoring and mitigation strategy;

“site” means Abbey Mills, Putney Embankment Foreshore, Carnwath Road Riverside, Dormay Street, Cremorne Wharf Depot, Chelsea Embankment Foreshore, Kirtling Street, Heathwall Pumping Station, Albert Embankment Foreshore, Victoria Embankment Foreshore, Blackfriars Bridge Foreshore, Chambers Wharf, Greenwich Pumping Station and King Edward Memorial Park Foreshore, or any of them;

“specified day” means, unless otherwise agreed in writing by the Agency and the undertaker, in relation to any specified work, maintenance work, remedial work or removal work submitted for approval under paragraph 5, the business day on which detailed designs of that work are received by the Agency under paragraph 5(1), 5(3), 5(4), or 5(5) and for the avoidance of doubt if any further information is requested by the Agency under paragraph 5(1)(l), 5(3)(d), 5(4)(d), or 5(5)(e) the specified day shall be the business day on which the Agency receives this information from the undertaker under paragraph 5;

“specified works” means so much of any permanent or temporary work or operation excluding works of maintenance forming part of the authorised project (other than works required in an emergency) as is in, on, under or over a main river or drainage works or within 16 metres of a drainage work or is otherwise likely to—

(f)

affect any drainage works or the volumetric rate of flow of water in or flowing to or from any drainage works; or

(g)

affect the flow, purity or quality of water in any main river or other surface waters or ground water; or

(h)

cause obstruction to the free passage of fish or damage to any fishery; or

(i)

affect the conservation, distribution or use of water resources; or

(j)

affect the conservation value of the main river and habitats in its immediate vicinity;

“TE2100” means the standards associated with the strategic direction for managing flood risk across the Thames estuary, including recommendations for action in short, medium and long term time periods to take account of sea level rise and climate change, as adopted and updated at the time by the Environment Agency.

Structural integrity of flood defences

4.—(1) Prior to the carrying out of any authorised project work which is likely to impact a flood defence, the undertaker shall provide at its own expense for the approval of the Agency, a detailed engineering report of any flood defence likely to be impacted upon by that authorised project work, such engineering report to include but not be limited to—

(a) details of the structural condition of any flood defence likely to be impacted;

(b) the estimated remaining life expectancy of any flood defence in the control or ownership of the undertaker likely to be impacted;

(c) the nature and extent of the predicted impacts on any flood defence;

(d) identification of the flood defences likely to be significantly impacted based on the following criteria—

(i) tunnelling or other construction activities comprised in the authorised project that may lead to a flood defence asset falling below the statutory defence level as agreed by the Agency;

(ii) tunnelling or other construction activities comprised in the authorised project that may lead to an effect on the overall structural integrity of the flood defence; and

(iii) any other criteria as the Agency may reasonably require;

(e) the need for any protective work or protective works required to be carried out prior to the construction of that authorised project work likely to impact a flood defence, so as to ensure the structural integrity of the flood defence likely to be impacted is maintained during construction of that authorised project work;

(f) baseline monitoring of flood defences likely to be significantly impacted unless otherwise agreed with the Agency; and

(g) and such other information as the Agency may reasonably require,

and the relevant authorised project work shall not commence until the engineering report or reports in respect of the flood defence or defences it is likely to impact have been provided to, and approved by, the Agency.

(2) The undertaker shall provide at its own expense in liaison with, and for the approval of, the Agency, a flood defence monitoring plan for any flood defence likely to be significantly impacted by the authorised project.

(3) The flood defence monitoring plan shall include but not be limited to—

(a) demonstration and justification of the spatial extent and coverage of the monitoring identified as a consequence of the baseline monitoring;

(b) details of the proposed monitoring techniques with consideration of effects of movement in all directions, including differential movements, increases in tie rod stresses and crack and movement joint monitoring;

(c) details of the proposed duration of monitoring and the monitoring frequencies required to establish if external factors are having an effect on readings;

(d) details of the proposed contents of a report on the construction and operational monitoring and proposed trigger levels for associated mitigation;

(e) trigger levels under the flood defence monitoring plan submitted pursuant to paragraph 4(2) above for associated mitigation;

(f) proposed duration and frequency of monitoring during operational phase of the authorised project; and

(g) such other information as the Agency may reasonably require,

(h) and no authorised project work likely to significantly impact a flood defence shall commence until the flood defence monitoring plan for that work has been provided and approved by the Agency.

(4) Monitoring shall be carried out in accordance with the flood defence monitoring plan as approved by the Agency or otherwise determined until—

(a) ground movements attributable to the authorised project have ceased or the rate of settlement is less than or equal to 2mm per year; or

(b) for a period of 1 year following the completion of construction,

whichever is the later.

(5) The undertaker shall provide at its own expense in liaison with, and for the approval of, the Agency, a flood defence movement and settlement mitigation plan for any flood defence likely to be significantly impacted by the authorised project.

(6) The flood defence movement and settlement mitigation plan shall include but not be limited to—

(a) information from relevant engineering reports;

(b) results of the monitoring carried out in accordance with the flood defence monitoring plan;

(c) timescales to enact short, medium and long term mitigation measures to maintain the standard of flood defence and have due regard to protection of foreshore habitat;

(d) short term mitigation and remediation measures for emergency use, including an emergency response plan;

(e) medium term mitigation and remediation measures for use during construction works;

(f) long term mitigation and remediation measures based on ongoing monitoring, including post construction effects;

(g) hierarchy of mitigation and remediation measures according to the degree of settlement and movement, with full justification to why the chosen technique is appropriate;

(h) methodologies for removal of any structures or mitigation measures;

(i) demonstration that chosen mitigation and remediation techniques are sensitive to the foreshore habitat and hydraulic regime;

(j) demonstration that the mitigation would not preclude options for future raising of defences and associated modification,

and the mitigation shall thereafter be carried out in accordance with the flood defence movement and settlement mitigation plan as approved by the Agency or otherwise determined.

(7) The approval process in paragraph 5 shall apply to the submission of any plan under paragraphs 4(1), 4(2) and 4(5) as if such plan was submitted to the Agency under paragraph 5(1) and the “specified day” shall be the first business day on which submission is received by the Agency under paragraphs 4(1), 4(2) or 4(5), and paragraph 5(6)(a),(b) and (d) shall apply accordingly.

(8) If required by the Agency the undertaker shall construct all or part of any protective works so that they are in place prior to the carrying out of any authorised project work to which they relate.

Approvals

5.—(1) Before beginning to construct any specified work, the undertaker shall submit to the Agency for its written approval in respect of the specified work concerned—

(a) plans, calculations, cross sections, elevations, drawings, specifications and designs of the specified work together with the details of the positioning of any structure within the main river;

(b) proposals for strengthening, modification, renewal, or replacement of any drainage work required as a result of the anticipated impacts of the specified work;

(c) details of the materials and structural integrity of any flood defence provided as part of the specified work;

(d) demonstration that all flood defences likely to be impacted by the specified work will be fit for purpose for the duration of construction of the specified work;

(e) any proposed mitigation measures to minimise the impact of the specified work on any protective works to the flood defences, on the foreshore, ecologically sensitive areas and the wider environment;

(f) details of any ecological enhancements to be incorporated into the specified work;

(g) demonstration of how any new or reconstructed flood defences on the site of the specified work can be raised or otherwise provided on site in the future to meet TE2100 standards and that these standards can be maintained;

(h) demonstration that both during and post construction of the specified work there will be sufficient land based access to the drainage works for plant and machinery for the Agency to carry out emergency and non-emergency maintenance and repair works;

(i) method statements in respect of the specified work to include both timing of and methods used, sequence of construction and the type, location and storage of all machinery, materials and fuel;

(j) piling method statement specifying type of piling technique proposed, justification of chosen method, mitigation measures and timing of piling works;

(k) any proposals for reinstatement of the foreshore setting out timing of reinstatement works, measures to be used to minimise environmental impact of the specified work, materials to be used, methods of reinstatement and any proposed pollution protection measures;

(l) such further particulars as the Agency may within 20 business days of the receipt of the detailed designs reasonably require.

(2) Any such specified work shall not be constructed except in accordance with all detailed designs as may be approved in writing by the Agency under paragraph 5(1), or settled in accordance with paragraph 13 where applicable, and in accordance with any conditions or requirements specified under paragraph 5(6)(c) save that where any variation is permitted pursuant to the terms of this Order the undertaker shall submit any details so varied to the Agency.

(3) Before commencing any maintenance works within 16 metres of a drainage work the undertaker shall submit to the Agency for its written approval—

(a) time and duration of anticipated maintenance works;

(b) details of equipment and machinery to be used during the construction of the maintenance works;

(c) type, location and storage of all machinery, materials and fuel to be used during the construction of the maintenance works; and

(d) such other information as the Agency reasonably requests.

(4) Before commencing any remedial works, the undertaker shall submit to the Agency for its written approval—

(a) time and duration of the anticipated remedial works;

(b) details of equipment and machinery to be used during the remedial works;

(c) type, location and storage of all machinery, materials and fuel to be used during the construction of the remedial works; and

(d) such other information as the Agency reasonably requests.

(5) Prior to removal of in-river structures including, but not limited to, the removal of the aprons of any existing outfalls made redundant by the authorised project, the undertaker shall submit to the Agency for its written approval details of the activity including—

(a) time and duration of the works for removal;

(b) details of equipment and machinery to be used during the works for removal;

(c) type, location and storage of all machinery, materials and fuel;

(d) any proposals for reinstatement of the foreshore setting out timing of reinstatement works, measures to be used to minimise environmental impact of the works, materials to be used, methods of reinstatement and any proposed pollution protection measures; and

(e) such other information as the Agency reasonably requests.

(6) Any approval of the Agency required under paragraphs 5(1), 5(3) 5(4) and 5(5)—

(a) shall not be unreasonably withheld;

(b) in the case of a refusal, accompanied by a statement of the grounds of refusal;

(c) may be given subject to such reasonable requirements or conditions as the Agency may make for the protection of any drainage work, fishery, main river or water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties; and

(d) shall be deemed to have been refused if it is neither given nor refused within 35 business days of the specified day unless otherwise agreed.

(7) Without limitation on the scope of paragraph 5(6) the requirements or conditions which the Agency may make under paragraph 5(6) include conditions requiring the undertaker at its own expense to construct such protective works (including any new works as well as alterations to existing works) as are reasonably necessary—

(a) to safeguard any drainage work or flood defence against damage; or

(b) to secure that the efficiency or effectiveness of the drainage work for flood defence purposes is not impaired; or

(c) to ensure the risk of flooding is not otherwise increased by reason of any specified work, maintenance work or protective work,

during the construction of or by reason of the authorised project works.

(8) Any dispute in respect of any approval or refusal under paragraph 5 shall be subject to the dispute resolution procedure in paragraph 13.

Inspection and construction

6.—(1) All specified works shall be constructed with all reasonable despatch in accordance with the detailed designs or plans approved or settled under this part of this Schedule and to the reasonable satisfaction of the Agency.

(2) An officer of the Agency shall be entitled to watch and inspect the construction of any specified works.

(3) The undertaker shall give to the Agency not less than 10 business days’ notice in writing of its intention to commence construction of the specified works and notice in writing of their completion not later than 5 business days after the date on which they are completed.

(4) If any part of a specified work is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this part of this Schedule or if the undertaker so elects (and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the specified work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

(5) Subject to paragraph 6(6), if within a reasonable period, being not less than 28 days from the date when a notice under paragraph 6(4) is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from the undertaker.

(6) In the event of any dispute as to whether paragraph 6(4) is properly applicable to any work in respect of which notice has been served under that paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not except in emergency exercise the powers conferred by paragraph 6(5) until the dispute has been finally determined.

Protection of drainage works and flood defences

7.  Save as may be authorised by this Order the undertaker shall not damage or obstruct any drainage works during the construction of the specified works.

Scour and accretion monitoring and mitigation

8.—(1) The undertaker shall submit a scour and accretion monitoring and mitigation strategy to the Agency for approval, such approval to be given—

(a) by 30th September 2014; or

(b) within 5 business days of the grant of the DCO; or

(c) by the expiry of 20 business days from receipt of the submission made under this paragraph,

whichever is the latest.

(2) Prior to the commencement of any specified work, a scour and accretion monitoring and mitigation plan for that specified work shall be prepared by the undertaker in accordance with the scour and accretion monitoring and mitigation strategy approved under paragraph 8(1) or otherwise determined, and the scour and accretion monitoring and mitigation plan shall be submitted to the Agency for approval within 35 business days of the specified day.

(3) Following any submission of a scour and accretion monitoring and mitigation plan under paragraph 8(2), the approval process in paragraph 5 shall apply to such submission as if it were a submission under paragraph 5(1) and the “specified day” shall be the first business day on which such submission is received by the Agency under paragraph 8(2).

(4) The construction of any specified work shall proceed only in accordance with the scour and accretion monitoring and mitigation plan as approved by the Agency under paragraph 8(2).

Maintenance of flood defences

9.—(1) Any work constructed under this Order for the purpose of providing a flood defence or replacing an existing flood defence shall be maintained to the reasonable satisfaction of the Agency by the person who has control of the work.

(2) If any such work is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the person to repair and restore the work, or any part of it, or (if the person having control of the work so elects and the Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

(3) If, within a reasonable period being not less than 20 business days beginning with the date on which a notice in respect of any work is served under paragraph 9(2) on the person who has control of that work, that person has failed to begin taking steps to comply with the reasonable requirements of the notice and has not thereafter made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in doing so from that person.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under paragraph 9(2), the Agency shall not, except in a case of immediate foreseeable need, exercise the powers of paragraph 9(3) until the dispute has been finally determined.

Emergency Powers

10.—(1) If by reason of the construction of any authorised project work or the failure of any such authorised project work, the efficiency or effectiveness of any drainage work or the conservation value of the aquatic habitat is impaired, or that drainage work is otherwise damaged, so as to require remedial action, such impairment or damage shall be made good by the undertaker to the reasonable satisfaction of the Agency.

(2) If such impaired or damaged drainage work is not made good to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to restore it to its former standard of efficiency or where necessary to construct some other work in substitution for it.

(3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of impaired or damaged drainage work is served under paragraph 10(2) on the undertaker, the undertaker has failed to begin taking steps to comply with the requirements of the notice and has not thereafter made reasonably expeditious progress towards its implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under paragraph 10(2), the Agency shall not except in a case of immediate foreseeable need exercise the powers conferred by paragraph 10(3) until the dispute has been finally determined in accordance with paragraph 13.

(5) In any case where immediate action by the Agency is reasonably required in order to secure that the imminent flood risk or damage to the environment is avoided or reduced, the Agency may take such steps as are reasonable for the purpose and may recover from the undertaker the reasonable cost of so doing provided that the notice specifying those steps is served on the undertaker as soon as it is reasonably practicable after the Agency has taken or commence to take the steps specified in the notice.

Approval of Construction Environment Management Plan

11.—(1) Prior to the construction of any authorised project work, the undertaker shall submit the following plans to the Agency—

(a) pollution incident response plan;

(b) emergency preparedness plan;

(c) water management plan;

(d) ecology and landscape management plan,

such plans forming part of the CEMP and prepared pursuant to the CoCP, and the undertaker shall thereafter provide any revisions or updates of such plans to the Agency for approval.

(2) The Agency shall approve those parts of the plans listed in paragraph 11(1) as appropriate and relevant to the statutory remit of the Agency, and the relevant authorised project work shall not commence until the relevant parts of such plans have been approved by the Agency or otherwise determined pursuant to paragraph 13.

(3) Any approval of the Agency given under paragraph 11(1):

(a) shall not be unreasonably withheld;

(b) in the case of a refusal, accompanied by a statement of the grounds of a refusal; and

(c) shall be deemed to have been refused if it is neither given nor refused within 20 business days of receipt of any submission under paragraph 11(1).

(4) Any dispute in respect of any approval or refusal under paragraph 11 shall be subject to the dispute resolution procedure in paragraph 13.

Protection for Fish and Fisheries

12.—(1) The undertaker shall take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in any fishery during the construction of any authorised project work—

(2) If by reason of—

(a) the construction of any authorised project work, or

(b) the failure of any such authorised project work,

damage to a fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage or, as the case may be, to protect the fishery against such damage.

(3) If, within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the undertaker fails to take such steps as are described in paragraph 12(2), the Agency may take such steps as are reasonable for the purpose and may recover from the undertaker the reasonable cost of so doing provided that the notice specifying those steps is served on the undertaker as soon as is reasonably practicable after the Agency has taken, or commenced to take the steps specified in the notice.

Dispute Resolution

13.  Any dispute arising between the undertaker and the Agency under this Schedule shall be determined by arbitration in accordance with article 63 unless otherwise agreed in writing by the undertaker and the Agency.

Indemnities and Costs

14.—(1) The undertaker shall be responsible for and make good to the Agency all financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Agency by reason of—

(a) the construction or operation of the authorised project or the failure of any works comprised within it, or;

(b) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised project or dealing with any failure of the authorised project;

and the undertaker shall indemnify the Agency from and against all claims and demands arising out of or in connection with the authorised project or any such failure, act or omission.

(2) The fact that any act or thing may have been done—

(a) by the Agency on behalf of the undertaker; or

(b) by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Agency, or in a manner approved by the Agency, or under its supervision or the supervision of its duly authorised representative;

shall not (if it was done or required without negligence on the part of the Agency or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.

(3) In complying with the indemnity provisions pursuant to this paragraph the undertaker’s liability shall either be limited to a sum to be agreed between the parties or unlimited.

(4) The Agency shall give the undertaker reasonable notice of any such claim or demand as is referred to in paragraph 14(1), and no settlement or compromise of any such claim or demand shall be made without the prior consent of the undertaker.

Notices

15.—(1) All notices under this Part of the Schedule to be sent to the head office of the Agency applying at the time unless otherwise agreed in writing.

(2) The undertaker shall serve notice in writing of any transfer made pursuant to Article 9 upon the Agency together with a copy of the instrument effecting such transfer within 10 business days of any such transfer.

(3) The undertaker shall serve a copy of its application to discharge requirement PW4 upon the Agency within 10 business days of the submission of such application. In the event that any application for approval of detailed design of specified works pursuant to paragraph 5 of this Part of Schedule 16 is made before any application for discharge of requirement PW4 is made, then the undertaker shall supply with the application for approval details for each part of the authorised project which is submitted for approval of specified works, the details of the body responsible for carrying out the relevant works and the location and duration for undertaking those works.