[2024] EWHC 1435 (TCC)

CHANGE IN FREQUENCY OF STORM EVENS AND/OR SEA LEVEL RISE

Within 56 days of each of the tenth and the twentieth anniversaries of the Effective Date, PFIC may (and will if required by the Agency) submit to the Agency a report summarising Storm Events that have occurred from the Effective Date to the tenth anniversary of the Effective Date or from the tenth Anniversary of the effective Date until the twentieth anniversary of the Effective Date (as appropriate) and provide PFIC’s reasonable view (which must be supported by the written opinion of an independent expert in the relevant field) as to whether there has been a material increase or decrease in the frequency of Storm Events during that period as compared to the period from either 1 January 1990 up until the Execution Date or from the tenth anniversary of the effective Date until the twentieth anniversary of the Effective Date (as appropriate). (Footnote: ¹)

Without prejudice to Schedule 12 paragraphs 1 and 2, PFIC will only be entitled to claim a Relevant Cost due to there having been a material increase or decrease in Storm Events if it demonstrates (by production of such supporting information as the Agency may reasonably require) to the reasonable satisfaction of the Agency that:

any increase in loss of shingle in the Frontage (as determined by reference to the ABMS records and any other surveys for the two respective periods referred to in Schedule 12 paragraph 4.2 and records submitted by PFIC in accordance with this Agreement) was directly caused by an increase in frequency of Storm Events;

PFIC has otherwise complied with its obligations under this Agreement including, without limitation, its obligation to monitor and maintain the Key Physical Features of the Sea Defences in accordance with PFIC’s Proposal.

Notwithstanding any other provisions of this Schedule, the Agency and PFIC hereby agree that an increase or decrease in the frequency of Storm Events resulting in a Relevant Cost or Relevant Saving for the ten year period commencing on the Effective Date less than or equal to £100,000 in aggregate shall not entitle either party to claim a Relevant Cost or Relevant Saving under this Schedule.