The Leicestershire County Council (Ashby de la Zouch Canal Extension) Order 2005

2.—(1) Except as provided by this paragraph, where a street is stopped up or services diverted under the provisions of this Order, any statutory undertaker whose apparatus is placed under, in, upon, over, along or across the street, shall have the same powers and rights in respect of that apparatus as if this Order had not been made.

(2) Where, under the provisions of this Order, a street is stopped up or services diverted, any statutory undertaker whose apparatus is placed under, in, upon, over, along or across the street may remove the apparatus and place it, or other apparatus provided in substitution for it, in such other position as the statutory undertaker may reasonably determine and have power to place it;

(3) If reasonably requested to do so by the undertaker, the statutory undertaker shall remove his apparatus and provide other apparatus in substitution for it.

(4) Subject to the following provisions of this paragraph, the undertaker shall pay to any statutory undertaker an amount equal to the cost reasonably incurred by the statutory undertaker in or in connection with—

(a) the execution of relocation works required in consequence of the stopping up of the street; and

(b) the doing of any other work or thing rendered necessary by the execution of relocation works.

(5) If in the course of the execution of relocation works under sub-paragraph (2) or (3)—

(a) apparatus of better type, greater capacity or greater dimensions is placed in substitution for existing apparatus; or

(b) existing apparatus or apparatus which has been substituted for it is placed at a greater depth;

the provisions of paragraph (6) shall apply.

(6) Unless the substitutions referred to in sub-paragraph (5) above have been agreed to by the undertaker or determined to be necessary by arbitration, any costs incurred by the undertaker in consequence of the substitutions shall be deducted from the amount due to the statutory undertaker under sub-paragraph (4) above.

(7) For the purposes of sub-paragraph (5)—

(a) an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as placing apparatus of greater dimensions in substitution for existing apparatus; and

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

(8) Where under sub-paragraph (2) or (3) original apparatus is replaced by substituted apparatus and the original apparatus was put in place more than seven years and six months before the substitution was made, any amount due under sub-paragraph (4) above shall be reduced by the amount which represents the financial benefit of the substitution to the statutory undertaker.

(9) For the purposes of sub-paragraph (8)—

(a) the original apparatus shall be regarded as put in place on the day after the works to put it in place were completed;

(b) the substitution shall be regarded as made on the day after the works to put the substituted apparatus in place are completed;

(c) regulation 7 of the Street Works (Sharing of Costs of Works) (England) Regulations 2000(1) and the Code of Practice referred to in that regulation shall apply for the purpose of determining the amount of the financial benefit of the substitution to the statutory undertaker;

(d) “original apparatus” means the apparatus which is replaced by other apparatus; and

(e) “substituted apparatus” means the apparatus which replaces the original apparatus.

(10) Sub-paragraphs (4) to (9) shall not apply where the authorised works constitute major transport works as defined by section 91(2) of the 1991 Act, and—

(a) the allowable costs of the relocation works shall be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) and the Street Works (Sharing of Costs of Works) (England) Regulations 2000; and

(b) the allowable costs shall be borne by the undertaker and the statutory undertaker in such proportions as may be prescribed by those regulations.

(11) In this paragraph—

“relocation works” means works executed, or apparatus provided, under sub-paragraph (2) or (3); and

“statutory undertaker” means a statutory undertaker within the meaning given by section 329(1) of the Highways Act 1980 or a public communications provider as defined by section 151(1) of the Communications Act 2003.

(1)

S.I. 2000/3314.