Representation by Thames Water (Thames Water)
- Date submitted
- 23 June 2023
- Submitted by
- Other statutory consultees
London Luton Airport Expansion DCO Thames Water Utilities Limited Relevant Representations Thames Water Utilities Limited (“TWUL”) is appointed under Chapter 1 of Part II of the Water Industry Act 1991 (“WIA”) as water and sewerage undertaker for the Thames region, which includes sewerage only at the location of the London Luton Airport Expansion DCO. In principle, TWUL does not object to the London Luton Airport scheme but has concerns relating to the increase in sewage discharge as a result of the expansion, both during and beyond the development. TWUL requires assurances that this can be delivered and managed without having a detrimental impact to TWUL’s existing customers and assets. TWUL will need to work closely with London Luton Airport (the “Applicant”) to alleviate these concerns. TWUL owns land, sewers and other apparatus throughout and surrounding the DCO boundary that will be affected by the scheme, which will either need to be protected or diverted as a result. TWUL does not believe that the provisions of the draft Development Consent Order (“the Order”) satisfactorily protect TWUL’s existing and future apparatus and ability to comply with its statutory duties or exercise its statutory powers. Please find TWUL’s objections (all clauses below are objected to), proposed amendments to specific provisions and additions to the protective provisions in order to alleviate the concerns below. General Objections: a) Asset Protection Review: This DCO affects TWUL sewerage assets. We would require an asset protection review prior to any works within 5 meters of our assets. This would ultimately lead to either a letter of no further comment being issued, or the affected assets being diverted. b) Foul Water Discharge: TWUL needs to be provided with Luton’s modelled foul water flows and needs to understand the impact of the change in these (as a result of the development) on our network. This information should be provided a minimum of 36 months before flows come in to allow for any necessary upgrades in our network. TWUL will also need to understand how wastewater from aircraft will be managed as a result of the development, with emphasis on its chemical composition, average periodic volumes and points of discharge into TWUL’s network. c) Surface Water Discharge: TWUL needs assurance that any surface water discharge as a result of the development will not be contaminated and will adhere to the London Plan and associated discharge hierarchy. If there is any proposed increase in surface water runoff TWUL will need to know this in advance (with the same timescales as for the foul flows). d) Trade Effluent Discharge: There are particular concerns as to how glycol contaminated surface water will be managed. Prior to the development, TWUL will need the trade effluent (including the discharge of glycol contaminated surface water) monitored to understand the impact the development will have on TWUL’s network. Once this monitoring is established TWUL will then need to understand the proposed increase or changes to the trade effluent discharge. ? Specific Objections: With respect to the DCO Proper: Article 6(2) As noted above, the Applicant must be aware that the change in ground levels that are proposed and the possible deviations in Article 6 may prompt the requirement to divert assets. In order for TWUL to be aware of the possible diversions necessary, the Applicant must highlight where the ground level (above a TWUL asset) shall be altered beyond 300mm. TWUL propose to add the following clause 18 within the protective provisions, see below: “The Applicant agrees to inform the utility undertaker as soon as practically possible if they determine to alter the ground level more than 300mm within 3 metres laterally of the outside face of the asset. Subsequently the utility undertaker shall determine if a diversion is necessary.” Article 10 & 11 TWUL have land and asset interests in and adjoining to the DCO boundary that will be affected if streets are altered, temporarily or permanently. In order for TWUL to understand the impact on TWUL land and assets, TWUL would need to be fully informed of the street alterations required by the development. Article 14 As noted for clause (4) of the protective provisions below, TWUL request the standard wording be reinstated and use of ‘streets’ in the place of ‘public right of way’ be retained. Article 16 As stated above, TWUL have land and asset interests in the DCO boundary and surrounding area therefore TWUL will need to be fully informed of changes in traffic access required by the development. Article 19(1) There has been a change of wording from the standard wording from ‘construction’ to ‘carrying out’. This new phrasing creates unnecessary ambiguity and may lead to the inclusion of the operation of the development which TWUL would object to as this should be covered in a separate agreement. TWUL require construction/standard wording to be retained as follows: “(1) The Undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.” Article 19(2) There have been further unnecessary changes in the wording, TWUL require that the standard wording is retained: “(2) Any dispute arising from the exercise of the powers conferred by paragraph (1) to connect to or use a public sewer or drain is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991(a).” Article 19(9) TWUL requires “a person who receives an application” on behalf of the statutory undertaker to be more clearly defined as a condition of valid notice of the application. TWUL are happy to provide the correct contact details for this person to ensure the 28 day deadline can be complied with. Article 19(11) This subclause is not present in any previous DCO or TWAO due to the impossibility of its aim. TWUL, or any other statutory undertaker, is not able to consent to the discharge of Trade Effluent into watercourses, public sewers (specifically public surface water sewers) or drains under any circumstances. Trade Effluent can only be discharged to foul water sewers. Therefore, this subclause is redundant and needs to be removed. Article 21 Surveys are singled out in Article 21 and these works may take place far in advance of the main works. At this stage TWUL cannot determine if they may impact our assets. We consider the definition of ‘plan’ in the protective provisions Schedule 8(2) to incorporate information from surveys and therefore consider surveys to be part of the works and therefore covered by the protective provisions. TWUL propose the following new clause 19 within the protective provisions: “Surveys are to be considered part of the works. The Undertaker agrees to inform the utility undertaker as soon as practically possible if they intend to survey using ground intrusive methods within 3 metres laterally of the outside face of an asset. Subsequently the utility undertaker shall determine if protection of the asset is necessary” Articles 24, 27, 30 and 35 TWUL object as TWUL have assets and land within and adjoining the DCO boundary which are necessary to fulfil our statutory function. If TWUL were not to be in possession of those assets, the ability to perform TWUL’s statutory function would be restricted. Furthermore, the restrictions contained in these articles should not impact TWUL’s ability to access TWUL’s assets or carry out TWUL’s statutory function. Article 36 (1)(d) Building over TWUL assets contravenes the building regulations that recognise that doing so interferes with TWUL’s statutory undertaking as TWUL will be unable to repair or maintain TWUL’s assets once they are built over. Therefore, the undertaker should seek to reposition TWUL’s apparatus rather than building over them. Therefore, TWUL object to this article and it needs to be removed. Article 36 (1)(e) Similarly to the above, the behaviour described in (e) has the potential to damage our assets. If the Applicant damages TWUL’s assets than this will interrupt TWUL’s statutory duties. Therefore, TWUL object to this article and it needs to be removed. Article 38 TWUL objects to this clause and references the objection in respect of 11(1) of the protective provisions (Schedule 8). Sch 2 Clause 13 As utility undertakers, TWUL would need to be consulted on the drainage strategy and approve the strategy, in addition to the planning authority. ? With respect to the Protective Provisions for Sewerage Undertakers (Schedule 8) Sch 8 Clause (2) TWUL considers that the definition of ‘alternative apparatus’ should include the words ‘and effective’ after the words ‘no less efficient’. Efficiency relates to cost and productivity whereas effectiveness relates to ensuring the same output. TWUL’s general duty under section 37(1) WIA refers to an ‘efficient and economical’ system and its general duty under section 94(1)(a) WIA refers to ‘effectually’ draining an area. In TWUL’s opinion, alternative apparatus could be no less efficient than the asset which it replaces i.e. it might cost the same to maintain, but may be less effective, because it does not deal with the same quantity of water/effluent. On that basis, TWUL requests an amendment to paragraph 2 accordingly so that it is consistent with TWUL’s obligations under WIA. Sch 8 Clause 2(c) The definition of water apparatus in 2(c) does not refer to ‘accessories’ but to apparatus. Accessories are defined in section 219(1) WIA and constitute the parts of the apparatus that are integral to the apparatus, such as manholes, ventilating shafts, stopcocks etc. Furthermore, the definition in 2(c) does not include apparatus which may be adopted by a water undertaker under section 51A WIA. Sch 8 Clause 2(d) In relation to the definition in 2(d), it is not clear why 2(d)(i) only covers drains and works, and 2(d)(ii) only refers to sewers. Sewers, drains and disposal works can be vested in TWUL and can also be subject to vesting under section 102(1) and section 104(1) WIA. TWUL proposes the following amendment to paragraphs 2(c) and (d) for the purpose of clarity and consistency with WIA: “(c) In the case of a utility undertaker within paragraph (c) of the definition of that term (i) any mains, pipes, other water apparatus or accessories (as defined in section 219 of the Water Industry Act 1991) belonging to maintained or used by the utility undertaker for the purposes of water supply: and (ii) any water mains or service pipes which are the subject of a notice of intention to adopt under section 51A of the Water Industry Act 1991; and (d) in the case of a utility undertaker within paragraph (d) of the definition of that term (i)any sewer. drain or disposal works vested in the sewerage undertaker under the Water Industry Act 1991; and (ii)any sewer, drain or disposal works which are the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act, and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and manholes, ventilating shafts, pumps, inspection chambers or other accessories (as defined in section 219(1) of the Water Industry Act 1991) forming part of any such sewer, drain or works, and in each case includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;” Sch 8 Clause (4) There has been a change of wording from the standard wording, specifically ‘streets’ to ‘public right of way’ and also a change from ‘highway’ to ‘street’ in 4(2). The reasoning behind this is unclear and significantly changes the subject matter. We request the standard wording to be used. “Apparatus in stopped up streets 4.—(1) Where any street is stopped up under article 14 (permanent stopping up of streets and private means of access), any utility undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the undertaker must grant to the utility undertaker legal easements reasonably satisfactory to the utility undertaker in respect of such apparatus and access to it, but nothing in this paragraph affects any right of the undertaker or of the utility undertaker to require the removal of that apparatus under paragraph 7 or the power of the undertaker to carry out works under paragraph 9. (2) Regardless of the temporary closure, alteration, diversion and restriction of use of any highway under the powers conferred by article 12 (temporary closure, alteration, diversion and restriction of use of streets), a utility undertaker is at liberty at all times to take all necessary access across any such stopped up highway and to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain any apparatus which at the time of the stopping up or diversion was in that highway.” Sch 8 Clause 7(2) TWUL believe the Applicant has incorrectly inserted “a utility” in the highlighted section. This should be “an undertaker” as the powers provided in this order are for the benefit of the Applicant as undertaker. TWUL also requires comfort in the relevant paragraphs that the Applicant will consult about any required diversion or protection works and agree the technical solution before notice is served. Currently, the provisions are unclear and suggest that the Applicant could in practice serve only 28 days' notice of their requirements without any prior consultation or agreement as to their requirements. In addition to imposing a requirement to consult and agree on technical solutions before serving notice, TWUL would like to increase the notice period to not less than 56 days, which would at least accommodate the statutory notice period for alteration of apparatus where necessary and appears to be the standard timescale agreed with other utility undertakers. Sch 8 Clause 7(3) This clause relates to rights and facilities for constructing alternative apparatus. It says that where the alternative apparatus is to be constructed elsewhere than in other land of the Applicant or if the Applicant cannot afford such rights and facilities, TWUL must, on receipt of written notice to that effect from the Applicant, as soon as reasonably practicable use reasonable endeavours to obtain the necessary facilities and rights in the land in which alternative apparatus is to be constructed. TWUL has statutory powers to lay, alter and maintain apparatus under sections 158 and 159 WIA as set out above. However, these powers are not unlimited in the sense that the powers are not exercisable in Crown land or in land owned by the undertakings listed in Schedule 13 WIA without consent. Furthermore, although TWUL has the power to enter land where it has served the relevant notice and that notice has expired, it is not entitled to enter land by force and landowners can refuse entry to land. This can result in having to obtain warrants of entry from Magistrates’ Courts, with consequent unrecoverable costs and reputational issues. Sch 8 Clause 7(6) The following amendment is necessary because if the undertaker is in a position to remove our asset without TWUL’s consent or prior to providing an effective and efficient alternative this leaves the utility undertaker vulnerable to failing to discharge its own statutory obligations. The below text is suggested to replace this clause: “Regardless of anything in sub-paragraph (5), and subject to sub-paragraph (7), 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 gives its consent in writing (which shall not be unreasonably withheld or delayed), that work, instead of being executed by the utility undertaker, may be executed by the undertaker without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the utility undertaker.” Sch 8 Clause 7(7) & (8) TWUL object to this clause as deemed consent is not appropriate. Deemed consent of removal of assets has the potential to prevent TWUL from discharging its statutory obligations such as conveying sewerage or potable water. There needs to be assets or replacement assets which are operating in order for TWUL statutory duties to be fulfilled. Sch 8 Clause 8(1) With respect to subsection 8(1) we believe there has been a typing error and this clause should have been drafted as follows: (using London Resort’s DCO numbering) “Sch 10, 8(1) Where, in accordance with the provisions of this Part of this Schedule, the undertaker affords to a utility undertaker facilities and rights for the construction and maintenance in land of the undertaker of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between the undertaker and the utility undertaker in question or in default of agreement settled by arbitration in accordance with article 46 (arbitration).” In respect to subsection 8(2), the following should be added as a subsection (c): “(c) the arbitrator will also give effect to the statutory obligations of the utility undertaker.” Sch 8 Clause 9 (1) & (5) Firstly, TWUL require the following underlined wording to be inserted into subsection (1): (1) Not less than 28 days before starting the execution of any works in, on or under any land purchased, held, appropriated or used under this Order that are near to, or will or may affect, any apparatus (or any means of access to it) the removal of which has not been required by the undertaker under paragraph 7(2), the undertaker must submit to the utility undertaker in question a plan of the works to be executed. These clauses refer to a 28 day notice period. 28 days is insufficient to arrange potentially significant infrastructure works. Arranging infrastructure works, including but not limited to the diversion of apparatus, can take many years to arrange. For example, the timescale for diverting apparatus includes considering the requirement to divert, considering the options for diversion, design of the preferred option, tender, procurement, construction and commissioning. Furthermore, the statutory notice period for laying a relevant pipe otherwise than in substitution for an existing pipe of the same description is 3 months (s159(5)(a)), and 42 days for the purpose of altering an existing pipe (s159(5)(b)). As such, depending on the required work, TWUL may have to give up to 3 months’ notice to the landowner (this may not be the Applicant, as the Applicant has not arranged to acquire sufficient interest in land to accommodate diversion works) before it can exercise its powers (s159(5)). Additional notices will need to be given where works are in the street. TWUL may also have to coordinate works with local authorities/in line with other work being undertaken in the street, which would result in further delays. The Applicant and TWUL’s technical departments are already in communication. TWUL believes that the timescale noted in this subclause needs to at least be able to accommodate the statutory notice periods set out in WIA, TWUL also requires comfort in the relevant paragraphs that the Applicant will consult about any required diversion or protection works and agree the technical solution before notice is served. Currently, the provisions are unclear and suggest that the Applicant could in practice serve only 28 days’ notice of their requirements without any prior consultation or agreement as to their requirements. In addition to imposing a requirement to consult and agree on technical solutions before serving notice, TWUL would like to increase the notice period to not less than 56 days, which would at least accommodate the statutory notice period for alteration of apparatus where necessary, and appears to be the standard timescale agreed with other statutory undertakers. Sch 8 Clause 9(6) TWUL proposes this clause be removed. There should not be a situation where our assets are or may be affected without consent from TWUL. If accepted, this could lead to TWUL breaching its statutory duties as a water and sewage undertaker. In addition, there may be health and safety ramifications which at the time would be unknown or not within the capability of the undertaker or TWUL to recognise or address. The application must be properly considered and therefore consent is essential. Sch 8 Clause 10 (1) Clause 10(1) relates to reimbursement by the Applicant of any ‘proper and reasonable expenses’ incurred by TWUL in connection with the inspection, removal, alteration or protection of any apparatus. The words ‘proper and reasonable’ suggest that the Applicant will challenge both the reasonableness of the expense and whether it was properly incurred. TWUL should also be able to recover compensation properly paid in relation to any work it carries out under the Order, as under Schedule 12 WIA it is obliged to pay compensation to landowners and business owners in relation to specific losses incurred (diminution in value of land, disturbance and loss of business profits) in exercise of its pipe laying powers under sections 158 and 159 WIA. In TWUL’s view, the protective provisions relating to recovery of expenses should be consistent for all undertakers, should be consistent with TWUL’s statutory right to recover sums under s185(5) and should cover TWUL’s obligations to pay compensation under Schedule 12 WIA. TWUL proposes the following amendment to clause 10(1): “Subject to the following provisions of this paragraph, the undertaker must repay to the utility undertaker in question all expenses, costs and charges reasonably incurred and any compensation properly paid by that utility undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus.” Sch 8 Clause 11(1) TWUL has not been provided with any indemnity by the Applicant relating to damage to apparatus or alternative apparatus, property or any interruption of services or supply, despite the fact that it is also a utility undertaker whose apparatus, alternative apparatus or property could be damaged by works carried out under the Order or whose supply and services could be interrupted by reason of or in consequence of the construction, use, maintenance or failure of the authorised development. TWUL refer you to Silvertown DCO (Protective Provisions) – the below was inserted. TWUL require the wording for 11(1) contained in the Luton DCO to be substituted for the following: (Silvertown numbering) 10.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, maintenance or failure of any of the works referred to in paragraph 6(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a statutory undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any statutory undertaker, the Undertaker must— a) bear and pay the cost reasonably incurred by that statutory undertaker in making good such damage or restoring the supply; and b) indemnify the statutory undertaker against all reasonable claims, penalties, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from, or reasonably and properly incurred by, the statutory undertaker, by reason or in consequence of any such damage or interruption. Proposed new Clauses to Protective Provisions for Sewerage Undertakers (Schedule 8): Sch 8 Clause 15 It would be useful to include an additional paragraph in this schedule to cover situations where TWUL’s access to apparatus and land is materially obstructed. TWUL have a number of land parcels directly adjacent to the DCO boundary which TWUL will need to continue to have access to. The scheme provides for accessing assets that lie within land that the undertaker is occupying, but it doesn’t make similar provisions for accessing TWUL’s assets that are situated in land that may become ‘landlocked’ or severed by the scheme or effectively so if the only other access were via a river or railway, etc. TWUL simply need the same rights for access to assets as if they were in the occupied land. This may be unnecessary, but the information provided so far is insufficient to decide. We request that a Clause 15 be inserted: “If in consequence of the exercise of the powers conferred by this Order the access to any apparatus and/or land of the utility undertaker is obstructed the undertaker must provide such alternative means of access to that apparatus and/or land as will enable the utility undertaker to maintain or use the apparatus and/or land no less effectively than was possible before the obstruction.” Sch 8 Clause 16 TWUL have a number of assets and land interests either within or adjacent to the DCO boundary that could be significantly impacted by the proposed works. As a result, TWUL require assurance that there will be limited impact to TWUL’s statutory functions. We request that a Clause 16 be inserted: “At all times the undertaker shall procure that its employees, contractors and subcontractors take all reasonable and proper precautions in exercise of powers conferred by this Order to ensure that as little damage, obstruction or interference as reasonably practicable is caused to the undertaking of the utility undertaker. The undertaker shall use its reasonable endeavours during the exercise of powers conferred by this Order to ensure that such works do not cause any interruption to the exercise by the utility undertaker of its statutory functions.” Sch 8 Clause 17 The below addition highlights that if TWUL have to use their powers then these shall be done so not through the DCO but through TWUL’s statutory powers and not through the power of the DCO. (17(1)) (17(2)) Is there to provide comfort to the Applicant that if TWUL were to carry out works it would be done under compliance of the Protective Provisions. In addition (17(3)) again provides comfort to the Applicant concerning any works that may be carried out by TWUL. We propose that a Clause 17 be inserted: Authority for the works (1) Any works involving the laying or construction of pipes or accessories thereto to form part of the utility undertaker’s undertaking, or inspection, adjustment, repair or alteration (including moving or removing and replacing) of such apparatus, or any works requisite for or incidental to the purpose of any such works, shall, unless otherwise agreed in writing by the utility undertaker, be undertaken pursuant to the utility undertaker’s statutory powers following the service of statutory notice of entry onto land, such notice to be served by the utility undertaker. (2) In the event that utility undertaker carries out any works involving new or existing TW assets under its own statutory powers then the Protective Provisions shall apply to such works and utility undertaker covenants to observe and comply with the Protective Provisions irrespective of whether it is carrying out the works under its own statutory powers or in reliance on the powers conferred by the Order. (3) In the event that utility undertaker carries out any works involving new or existing utility undertaker assets under its own statutory powers but then fails to carry out those works in accordance with the Protective Provisions or within a reasonable timeframe (including in accordance with such programme for the carrying out of those works as may be agreed in writing between Highways England and utility undertaker) then this shall not prevent or otherwise prejudice the exercise of the powers to carry out the works conferred by the Order. Sch 8 Clause 18 As noted above, the Applicant must be aware that the change in ground levels that are proposed and the possible deviations in Article 6 may prompt the requirement to divert assets. In order for TWUL to be aware of the possible diversions necessary, the Applicant must highlight where the ground level (above a TWUL asset) shall be altered beyond 300mm. We propose that a Clause 18 be inserted: “The Undertaker agrees to inform the utility undertaker as soon as practically possible if they determine to alter the ground level more than 300mm within 3 metres laterally of the outside face of the asset. Subsequently the utility undertaker shall determine if a diversion is necessary.” Sch 8 Clause 19 Surveys are singled out in Article 21 and these works may take place far in advance of the main works. At this stage TWUL cannot determine if they may impact our assets. We consider the definition of ‘plan’ in the protective provisions Schedule 8(2) to incorporate information from surveys and therefore consider surveys to be part of the works and therefore covered by the protective provisions. We propose that a Clause 19 be inserted: “Surveys are to be considered part of the works. The Undertaker agrees to inform the utility undertaker as soon as practically possible if they intend to survey using ground intrusive methods within 3 metres laterally of the outside face of an asset. Subsequently the utility undertaker shall determine if protection of the asset is necessary”