[2024] EWHC 1435 (TCC)

Change Procedures means the procedures described in Schedule 12 (Change Procedures)

Effective Date has the meaning ascribed to it in Clause 2.2(b)

Relevant Cost means cost suffered or incurred (at the relevant time or in the future) by PFIC as a result of a Proposal as determined by Schedule 12 (Change Procedures) to this Agreement

Storm Event means a Weather Event where the sum of the Water Level and Significant Wave Height exceeds 6.5 metres.

The Service Requirements are set out in Schedule 4. These provide by way of Introduction:

The Agency’s aim for the Pevensey Bay Frontage is to develop a sustainable policy for the management of the Pevensey Bay Sea Defences that is economically justified, environmentally appropriate and which, while recognising the significant value of assets (both monetary and environmental) that are at risk, takes due regard of the natural processes within the sediment sub-cell and the effects of and to adjacent coastal defences.

The principal objectives to achieve the Agency’s aim are:-

management of the Sea Defences in sympathy with the natural processes;

provision of appropriate Sea Defences, where their need has been identified and justified, that are technically sound, economically viable and environmentally acceptable;

provision of best value to the public purse;

consistency of approach to the overall management of the Sea Defences within the sub-cell by liaising with Relevant Authorities in the production of Beach Management Plans;

formalized comprehensive monitoring to inform future management decisions and reviews; and

maximisation of recreational and environmental opportunities.

Schedule 11: Calculation of Charges and Deductions provided at Part 4 : Cost of Restoring the Key Physical Features :

“…

If there is a Weather Event which is both a Non-Protection Level Event as defined by Table 3.8 and Curves shown in Figure 3.8 and a Protection Level Event as defined by Table 3.12 and Curves shown in Figure 3.12 (“a Shingle Loss Event”), then the Agency shall, reimburse PFIC for PFIC’s reasonable costs properly incurred in obtaining and delivering shingle to the Frontage in order to replace the shingle permanently lost from the Frontage (as determined in accordance with Schedule 11 and paragraphs 4.8 to 4.10) (the “Permanent Shingle Loss”)

On the occurrence of Breach or Erosion as a result of a Non-Protection Level Event defined by Table 3.12 and Curves shown in Figure 3.12, the Agency shall reimburse PFIC for the reasonable costs to PFIC properly incurred in complying with its obligations under paragraphs 2.3.4 and 2.5.4 of Schedule 4 (Service Requirements), provided that PFIC shall take all reasonable steps to minimise any such costs. The Agency shall have the right not to reimburse PFIC in accordance with Schedule 11 paragraph 4.2 on the grounds of unaffordability but if the Agency intends to exercise such right then it shall reduce the Service Levels by giving a Notice pursuant to Schedule 12 paragraph 1.2(c) and 1.5.

When PFIC, acting reasonably, considers that a Shingle Loss Event has occurred, PFIC may, as soon as reasonably practicable, (and, in any event, not later than three months) after the occurrence of the relevant event) give the Agency written notice that it considers a Shingle Loss Event has occurred providing an estimate of the volume of shingle lost (the “Estimated Shingle Loss”) and an estimate of PFIC’s reasonable costs properly incurred of obtaining and delivering replenishment beach material to the Frontage to replace the Permanent Shingle Loss (the “Estimated Shingle Cost”). PFIC’s entitlement to reimbursement under this Part 4 is conditional upon PFIC giving notice to the Agency within three months of the occurrence of the relevant Shingle Loss Event.

The Change Procedures are set out in Schedule 12. Relevant clauses include the following: