The River Tyne (Tunnels) Order 2005

Article 45

SCHEDULE 9 PROTECTION OF NAVIGATION

1.  In this Schedule—

“construction” includes execution, placing, alteration and reconstruction and “constructed” has a corresponding meaning;

“plans” includes sections, drawings, particulars and schedules of construction;

“tidal work” means so much of any work authorised by this Order as is on, over or under tidal waters or land below the level of mean high-water springs; and

“Trinity House” means the Corporation of Trinity House of Deptford Strond.

Tidal works

2.—(1) A tidal work shall not be constructed, altered, replaced or re-laid except in accordance with plans approved by the Secretary of State and subject to any conditions and restrictions imposed by him before the work is begun.

(2) If a tidal work is constructed, altered, replaced or re-laid in contravention of this paragraph or of any condition or restriction imposed under this paragraph—

(a) the Secretary of State may by notice in writing require the undertaker at its own expense to take whatever steps he considers necessary to remedy the contravention;

(b) without prejudice to the generality of sub-paragraph (a), the steps in question may include steps to—

(i) alter, replace or re-lay any tidal work, or

(ii) remove the tidal work or any part of it, or restore the site to its former condition or as near to its former condition as is acceptable to him;

(c) any notice served by the Secretary of State under sub-paragraph (a) shall specify the period within which the undertaker shall comply with the requirements of that notice and may specify different periods for the taking of different steps; and

(d) where the undertaker fails to comply with the requirements of a notice served under sub-paragraph (a) within the period specified in that notice, the Secretary of State may himself execute the works required by the notice.

(3) Where it appears to the Secretary of State to be urgently necessary to do so, he may himself remove the tidal work, or any part of it, or restore the site to its former condition or as near to its former condition as he considers appropriate.

(4) The Secretary of State may, if he considers it expedient, order a survey and examination of any site on which it is proposed to execute a tidal work.

Damage etc. to works

3.—(1) In case of damage to or destruction or decay of a tidal work, or any part of a tidal work, the undertaker shall as soon as reasonably practicable—

(a) give notice to Trinity House and the Port Authority, and

(b) lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House may direct.

(2) If the undertaker fails to notify Trinity House and the Port Authority as required by this paragraph or to comply in any respect with a direction given under this paragraph it shall be guilty of an offence.

Abandonment etc. of structures

4.—(1) Where a tidal work is abandoned, or allowed to fall into decay, the Secretary of State may by notice in writing require the undertaker at its own expense—

(a) to repair and restore the work, or any part of it, or

(b) to remove the work and restore the site to its former condition or so near its former condition as is acceptable to him.

(2) Where—

(a) a work erected under this Order part of which is a tidal work is abandoned or allowed to fall into decay, and

(b) the part of the work on or over land above the level of mean high-water springs is in such a condition as to interfere, or cause reasonable apprehension that it may interfere, with the right of navigation or any public rights over the foreshore,

the Secretary of State may include that part of the work, or any portion of it, in any notice under sub-paragraph (1).

(3) If at the end of the period of 28 days from the date when notice is served on the undertaker under sub-paragraph (1) it has failed to begin taking steps to comply with the requirements of the notice or, after beginning, has failed to make reasonably expeditious progress towards their implementation, the Secretary of State may execute the works specified in the notice.

Surveys etc.

5.  The Secretary of State may, if he considers it expedient, order a survey and examination of any tidal work.

Offences

6.—(1) Where the undertaker is guilty of an offence under paragraph 3 it shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) In proceedings for any such offence it shall be a defence for the undertaker to show that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(3) If in any case the defence provided by sub-paragraph (2) involves the allegation that the commission of the offence was due to the act or default of another person, the undertaker shall not, without the leave of the court, be entitled to rely on the defence unless, not later than 7 days before the hearing of the proceedings, it has served on the prosecution a notice in writing giving such information as was then in its possession identifying or assisting in the identification of the other person.

Expenses

7.  The Secretary of State shall be entitled to recover from the undertaker any expenditure incurred by him under paragraphs 2(2)(d) or 2(3) or 4(3) or on a survey and examination under paragraphs 2(4) or 5.