The Welsh Highland Railway Order 1999

For the protection of public electricity suppliers

23.—(1) The following provisions of this article shall apply for the purposes of the protection of any public electricity supplier in relation to the carrying out of the authorised works for the exercise of any other powers conferred by this Order, save in so far as otherwise agreed in writing by the public electricity supplier in question and the undertaker.

(2) The provisions of article 20(2) above shall not apply in relation to any apparatus.

(3) The following provisions of this article shall not apply to anything done or proposed to be done in relation to or affecting any apparatus in so far as the relations between the undertaker and the public electricity supplier concerned are regulated by the provisions of Part III of the Act of 1991.

(4) The undertaker shall not under or for the purposes of this Order acquire any apparatus or seek to terminate any wayleave or other right of a public electricity supplier otherwise than by agreement with the public electricity supplier concerned.

(5) The undertaker shall afford to any public electricity supplier affected by the authorised works new permanent easements in respect of all apparatus situated in land acquired by it for the purposes of the railway or otherwise vested in it following the completion of the authorised works, such easements to afford to the public electricity supplier concerned the right to enter for the purposes of and to use, maintain, repair, remove and replace existing and future apparatus upon reasonable terms to be agreed between the undertaker and the public electricity supplier concerned including provision—

(a) to ensure that the public electricity supplier concerned is able to fulfill its obligations under the Electricity Act 1989(1) and any licence granted to it under that Act; and

(b) for annual rental payments to the undertaker and an indemnity for the undertaker in respect of any damage caused by the public electricity supplier.

(6) The undertaker shall use its best endeavours to co-operate with any public electricity supplier in preparing for, and in the construction of, the authorised works—

(a) in the interests of safety;

(b) to minimise the need for any relocation or replacement of or alteration to apparatus or disturbance to apparatus;

(c) to avoid the need for any relocation or replacement of apparatus on or onto, or alteration of apparatus on, land not vested in the undertaker;

and the undertaker shall use its best endeavours to assist the public electricity supplier concerned to obtain any statutory consents or other rights required for the relocation, replacement or alteration of apparatus.

(7) Without prejudice to the generality of paragraph (6) above, the undertaker shall agree with any public electricity supplier (such agreement not to be unreasonably withheld) any necessary relocation, replacement or alteration of the public electricity supplier’s apparatus (and the programmes and procedures for such relocation, replacement or alteration) and shall not commence the construction of the authorised works until any such relocation, replacement or alteration has been completed by the public electricity supplier concerned and is operating to its reasonable satisfaction, provided that any such relocation, replacement or alteration is undertaken by the public electricity supplier with all reasonable expedition.

(8) Without prejudice to paragraph (7) above, not less than 56 days before commencing to construct any work authorised by this Order which is near to, or may affect, any apparatus, the undertaker shall submit to the public electricity supplier a plan and description of the work and of any protective measures which the undertaker proposes to take in respect of that apparatus, together with a specification of such measures where appropriate.

(9) Any work of a type mentioned in paragraph (8) above shall be constructed only in accordance with the plan and description submitted in accordance with that paragraph and in accordance with such reasonable requirements as may be specified by the public electricity supplier for the protection of the apparatus or for securing access to it and the public electricity supplier shall be entitled (by its officer) to watch and inspect the construction of the work.

(10) Nothing in paragraphs (8) and (9) above shall preclude the undertaker from submitting at any time, or from time to time, but in no case less than 28 days before commencing the construction of the work in question, a new plan and description in substitution for the plan and description previously submitted, and where such a new plan and description are submitted, the provisions of paragraph 9 and this paragraph shall thereafter apply to and in respect of the new plan and description.

(11) Subject to the following provisions of this article, the undertaker shall within 28 days of the submission to it of an invoice by a public electricity supplier repay to that public electricity supplier the reasonable expenses incurred by it (including the cost of obtaining any necessary rights or consents) in, or in connection with—

(a) the removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus under any provision of this article;

(b) the cutting off of any apparatus from any other apparatus in consequence of the exercise by the undertaker of any power under this article; and

(c) any other work or thing rendered reasonably necessary in consequence of the exercise by the undertaker of any such power.

(12) Paragraph (11) above does not apply to any expenses incurred as a consequence of the construction of any part of the specified works on the same alignment and level as the former railway, other than expenses incurred in acquiring any consents or rights to install apparatus required to be relocated, replaced or altered on land not vested in the undertaker or any expenses relating to apparatus exclusively serving the railway.

(13) There shall be deducted from any sum payable under sub-paragraph (11) above the value of any apparatus removed under the provisions of this article, that value being calculated after removal.

(14) If in pursuance of the provisions of this article—

(a) alternative apparatus of better type, or greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, except where this has occurred solely due to the use of the nearest currently available type to the apparatus for which the substitution is being made; or

(b) apparatus (whether existing apparatus or alternative apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated;

and the placing of apparatus of that type or capacity or of those dimensions, or the placing of apparatus at that depth (as the case may be) is not agreed by the undertaker or, in default of agreement, is not determined by an arbitrator pursuant to article 42 below to be necessary, then, if such placing involves costs in the construction of works in excess of the costs which would have been incurred if the apparatus placed had been of the existing type, capacity or dimensions (or the nearest currently available type), or at the existing depth (as the case may be), the amount which apart from this paragraph would be payable to the public electricity supplier by virtue or paragraph (11) above shall be reduced by the amount of that excess.

(15) For the purposes of paragraph (14) above—

(a) an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus, except where the apparatus as so extended serves a purpose (either additional to or instead of that served by the existing apparatus) which was not served by the existing apparatus; and

(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall be treated as if it also had been agreed or had been so determined.

(16) Subject to paragraphs (17) and (18) below, if by reason or in consequence of the construction of any of the authorised works, or any subsidence resulting from any of these works, 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 the public electricity supplier, or there is any interruption in any service provided, or in the supply of any goods, by the public electricity supplier, the undertaker shall bear and pay the cost reasonably incurred by the public electricity supplier in making good such damage or restoring the supply and shall—

(a) make reasonable compensation to the public electricity supplier for loss sustained by it; and

(b) indemnify the public electricity supplier against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, it;

by reason or in consequence of any such damage or interruption.

(17) Nothing in paragraph (16) above shall impose any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to any act, neglect or default of the public electricity supplier, its officers, servants, contractors or agents.

(18) The public electricity supplier shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent of the undertaker, which consent shall not be unreasonably withheld.

(19) The undertaker shall, so far as it is reasonably practicable, exercise its powers under this Order so as not to obstruct or render less convenient the access to any apparatus.

(20) Notwithstanding the temporary stopping up or diversion of any highway under article 8 above, the public electricity supplier may do all such works and things in any such highway as may be reasonably necessary to enable it to inspect, repair, maintain, renew, remove or use any apparatus which at the time of the stopping up or diversion was in that highway.

(21) A public electricity supplier may give notice to the undertaker that, by reason of proposed works required for the construction, maintenance or renewal of any apparatus or of any service provided by it, it is reasonably necessary, for reasons of safety, for the undertaker to cease to use the railway or to reduce the speed of the trains on the railway within such area and for such periods as may be stipulated in the notice.

(22) Where a notice has been served under paragraph (21) above the undertaker shall cease to use the railway or reduce the speed of the trains on the railway (as the case may be) within such area and for such periods as the undertaker shall agree, such agreement not to be unreasonably withheld.

(23) Where a notice has been served under paragraph (21) above, the public electricity suppliers shall carry out the proposed works mentioned in that notice—

(a) in a manner which conforms with any requirements of the Health and Safety Executive in relation to railway safety and operational procedures; and

(b) with all expedition;

and shall take reasonable steps to minimise interruption in the operation of the railway.

(24) The notice referred to in paragraph (21) above shall be given in writing not less than 7 days before the commencement of the first period specified in that notice unless the proposed works in question arise as a matter of urgency, in which case the public electricity supplier shall give such notice as is reasonably practicable in all the circumstances of the case (which notice need not be given in writing).

(25) Any difference arising between the undertaker and a public electricity supplier under this article (other than a difference as to its meaning or construction) shall be determined by arbitration under article 42 below.

(26) In determining any such dispute the arbitrator may, if he thinks fit, require the undertaker to construct any temporary or other works so as to avoid, so far as reasonably possible, interference with the use of any apparatus.

(27) In this article—

“apparatus” means electric lines or electrical plant (as defined in section 64(1) of the Electricity Act 1989) belonging to or maintained by a public electricity supplier and includes any structure used, or to be used, to lodge apparatus or given access to apparatus;

“construction” includes execution, placing, altering, replacing, laying, relaying and removal and, in its application to works which include or comprise any operation, means the carrying out of that operation;

“in”, in a context referring to apparatus in land, includes under and over land;

“plans” includes sections and method statements; and

“public electricity supplier” means a licence holder within the meaning of Part I of the Electricity Act 1989 and, in relation to any apparatus, means the public electricity supplier to whom it belongs or by whom it is maintained.

(1)

1989 c. 29.