Article 60
1.—(1) The provisions of this Schedule shall, unless otherwise agreed in writing between the Harbour Authority and Network Rail, have effect for the protection of Network Rail.
(2) In this Schedule—
“construction” includes alteration, reconstruction and any non-routine maintenance and “construct” and “constructed” have corresponding meanings;
“the engineer” means an engineer to be appointed by Network Rail for the purpose in question;
“plans” includes sections, designs, drawings, specifications, soil reports, calculations and descriptions (including descriptions of methods of construction), staging proposals and programmes;
“relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction of the specified works or of any such act as is mentioned in paragraph 18;
“the specified works” means so much of the authorised works as may be situated upon, across, under, over or within 15 metres of, or may in any way affect, railway property; and
“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993(1).
2. The Harbour Authority shall not, under the powers conferred by this Order, acquire or enter upon, take or use (whether temporarily or permanently) any railway property, or acquire any new rights over any railway property unless such acquisition, entry or use is with the consent of Network Rail.
3. The provisions of article 32 (extinction of private rights of way) shall not apply to any right of access of Network Rail to railway property but such right of access may be diverted with the consent of Network Rail.
4. The exercise by the Harbour Authority against Network Rail of the powers of section 11(3) of the 1965 Act shall be confined to lands in relation to which the Harbour Authority’s powers of compulsory acquisition are not subject to the consent of Network Rail under paragraph 2.
5. Where Network Rail is asked to give its consent pursuant to paragraphs 2, 3 or 4, such consent shall not be unreasonably withheld or delayed but may be given subject to reasonable conditions.
6. The Harbour Authority shall before commencing construction of the specified works supply to Network Rail proper and sufficient plans for the reasonable approval of the engineer and shall not commence such construction of the specified works until plans of that work have been approved in writing by the engineer or settled by arbitration.
7. The approval of the engineer under paragraph 6 shall not be unreasonably withheld or delayed and if by the end of the period of 56 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated his disapproval of those plans and the grounds of his disapproval he shall be deemed to have approved the plans as submitted.
8. If by the end of the period of 56 days beginning with the date on which such plans have been supplied to Network Rail, Network Rail gives notice to the Harbour Authority that Network Rail desires itself to construct any part of the specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail or the services of train operators using the same then, if the Harbour Authority desires such part of the specified works to be constructed, Network Rail shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the Harbour Authority in accordance with the plans approved or deemed to be approved or settled as aforesaid.
9.—(1) When signifying his approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in his opinion should be carried out before the commencement of construction of the specified works to ensure the safety or stability of railway property, the continuation of safe and efficient operation of the railways of Network Rail or the services of train operators using the same (including any relocation of works, apparatus and equipment necessitated by the specified works) and the comfort and safety of passengers who may be affected by the specified works.
(2) Such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail, with all reasonable dispatch or, if Network Rail so desires such protective works shall be carried out by the Harbour Authority at its own expense. The Harbour Authority shall not commence the construction of the specified works until the engineer has notified the Harbour Authority that the protective works have been completed to his reasonable satisfaction.
10. Any specified work and any protective works to be constructed by virtue of paragraph 9 shall, when commenced, be constructed—
(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under this Schedule;
(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer; and
(c)in such manner as to cause as little damage as possible to railway property and as little interference as may be reasonably practicable with the conduct of traffic on the railways of Network Rail;
and, if any damage to railway property or any such interference or obstruction is caused by the carrying out of the specified works, the Harbour Authority shall, notwithstanding any such approval, make good such damage and shall pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.
11. The Harbour Authority shall—
(a)at all times afford reasonable facilities to the engineer for access to the specified works during their construction; and
(b)supply the engineer with all such information as he may reasonably require with regard to the specified works or the method of construction of the specified works.
12. Network Rail shall at all times afford reasonable facilities to the Harbour Authority and its agents for access to any works carried out by Network Rail under this Schedule during their construction and shall supply the Harbour Authority with such information as it may reasonably require with regard to such works or the method of construction of those works.
13.—(1) If any alterations or additions, either permanent or temporary, to railway property are reasonably necessary in consequence of the construction of a specified work, either—
(a)during the construction of the specified works or any protective works under paragraph 9; or
(b)during a period of 12 months after the completion of the specified works,
then such alterations and additions may be carried out by Network Rail.
(2) If Network Rail gives to the Harbour Authority reasonable notice of its intention to carry out alterations or additions as provided for in sub-paragraph (1), the Harbour Authority shall pay to Network Rail the reasonable cost of such alterations or additions including, in respect of permanent alterations and additions, a capitalised sum representing any increase in the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations and additions.
(3) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions referred to in sub-paragraph (1) a capitalised sum representing such saving shall be set off against any sum payable by the Harbour Authority to Network Rail under sub-paragraph (2).
14. The Harbour Authority shall repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—
(a)in constructing any part of the specified works on behalf of the Harbour Authority as provided by paragraph 8 or in constructing any protective works under the provisions of paragraph 9(2) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;
(b)in respect of the supervision by the engineer of the construction of the specified works and otherwise in connection with the implementation of the provisions of this Schedule;
(c)in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it shall be reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;
(d)in respect of any special traffic working resulting from any speed restrictions which may, in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of the specified works, or from the substitution or diversion of services which may be reasonably necessary for the same reason; and
(e)in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of the specified works.
15. If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the Harbour Authority informing it that the state of maintenance of the specified work appears to be such as may adversely affect the operation of railway property, the Harbour Authority shall, on receipt of such notice, take such steps as may be reasonably necessary to put the specified works in such state of maintenance as not to adversely affect railway property.
16. The Harbour Authority shall not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it shall have first consulted Network Rail and it shall comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.
17. Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work shall be repaid by the Harbour Authority to Network Rail provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the Harbour Authority.
18. The Harbour Authority shall pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by Network Rail—
(a)by reason of the construction or maintenance of the specified works or the failure of the specified works; or
(b)by reason of any act or omission of the Harbour Authority or of any person in its employment or of its contractors or others whilst engaged upon the specified works;
and the Harbour Authority shall indemnify Network Rail from and against all claims and demands arising out of or in connection with the specified works or any such failure, act or omission and the fact that any act or thing may have been done by Network Rail on behalf of the Harbour Authority or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision shall not (if it was done without negligence on the part of Network Rail or of any person in its employment or of its contractors or agents) excuse the Harbour Authority from any liability under the provisions of this Schedule.
19. Network Rail shall give to the Harbour Authority reasonable notice of any claim or demand as mentioned in paragraph 18 and no settlement or compromise of such a claim shall be made without the prior consent of the Harbour Authority.
20.—(1) In this paragraph—
“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail’s apparatus generated by the operation of the Harbour Authority’s apparatus where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus;
“the Harbour Authority’s apparatus” means any electric lines, circuits, wires, apparatus, equipment and other works of any description owned or used (or intended to be used) by the Harbour Authority for the purpose of the authorised works; and
“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.
(2) This paragraph shall apply to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of those plans under paragraph 6 for the relevant part of the authorised works giving rise to EMI unless the Harbour Authority has been given notice in writing before the approval of the plans of the intention to make such change, other than any change carried out by Network Rail as part of, or in consequence of the authorised works.
(3) Subject to sub-paragraph (4), the Harbour Authority shall in the design and construction of the authorised works take all measures necessary to prevent EMI and shall establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4) In order to facilitate the Harbour Authority’s compliance with sub-paragraph (3)—
(a)the Harbour Authority shall consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter shall continue to consult with Network Rail (both before and after formal submission of plans under paragraph 6) to identify all potential causes of EMI and the measures required to eliminate them;
(b)Network Rail shall make available to the Harbour Authority all information in the possession of Network Rail reasonably requested by the Harbour Authority in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (4)(a); and
(c)Network Rail shall allow the Harbour Authority reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (4)(a).
(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail shall not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution shall be selected in Network Rail’s reasonable discretion and in relation to such modifications, paragraph 6 shall have effect subject to this sub-paragraph.
(6) If at any time prior to the opening of the authorised works for the passage of railway traffic and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then the Harbour Authority shall immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the Harbour Authority’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent specified in sub-paragraph (5)) to Network Rail’s apparatus.
(7) In the event of EMI having occurred—
(a)the Harbour Authority shall afford reasonable facilities to Network Rail for access to the Harbour Authority’s apparatus in the investigation of such EMI;
(b)Network Rail shall afford reasonable facilities to the Harbour Authority for access to Network Rail’s apparatus in the investigation of such EMI; and
(c)Network Rail shall make available to the Harbour Authority any additional material information in its possession reasonably requested by the Harbour Authority in respect of Network Rail’s apparatus or such EMI.
(8) Where Network Rail approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—
(a)Network Rail shall allow the Harbour Authority reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and
(b)any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the Harbour Authority in accordance with the approval given.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 18 shall apply to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purpose of paragraph 14(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.
21.—(1) The sums payable by the Harbour Authority under paragraph 18 shall include a sum equivalent to the relevant costs.
(2) Subject to the terms of any agreement between Network Rail and the relevant train operators regarding the timing or method of payment of the relevant costs in respect of that train operator, once received, Network Rail shall promptly pay to each train operator the amount of any sum referred to in sub-paragraph (1) that relates to the relevant costs of that train operator.
(3) The obligation under paragraph 18 and sub-paragraph (1) to pay to Network Rail the relevant costs shall, in the event of default, be enforceable directly by a train operator concerned to the extent that such a sum would be payable to that operator pursuant to sub-paragraph (2).