The River Mersey (Mersey Gateway Bridge) Order 2011

Supplemental powers

Discharge of water

14.—(1) The undertaker may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the exercise of the powers conferred by paragraph (1) to connect to or use a public sewer or drain shall be determined as if it were a dispute under section 106 of the Water Industry Act 1991(1).

(3) The undertaker shall not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs and such consent may be given subject to such terms and conditions as that person may reasonably impose, but shall not be unreasonably withheld.

(4) The undertaker shall not make any opening into any public sewer or drain except—

(a) in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval shall not be unreasonably withheld; and

(b) where that person has been given the opportunity to supervise the making of the opening.

(5) The undertaker shall not, in the exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) The undertaker shall take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) Nothing in this article obviates the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2010(2).

(8) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to a local authority, the Homes and Communities Agency, the Environment Agency, a harbour authority within the meaning of the Harbours Act 1964(3), an internal drainage board, a joint planning board, or a sewerage undertaker; and

(b) other expressions, except watercourse, used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act.

Protective works to buildings

15.—(1) Subject to the following provisions of this article, the undertaker may at its own expense carry out such protective works to any building lying within the Order limits as the undertaker considers to be necessary or expedient.

(2) Protective works may be carried out—

(a) at any time before or during the construction in the vicinity of the building of any part of the authorised works; or

(b) after the completion of the construction of that part of the authorised works in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised works is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) and any land within its curtilage.

(4) For the purpose of carrying out protective works under this article to a building the undertaker may (subject to paragraphs (5) and (6))—

(a) enter the building and any land within its curtilage; and

(b) where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a) a right under paragraph (1) to carry out protective works to a building;

(b) a right under paragraph (3) to enter a building and land within its curtilage;

(c) a right under paragraph (4)(a) to enter a building and land within its curtilage; or

(d) a right under paragraph (4)(b) to enter land,

the undertaker shall, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 62 (arbitration).

(7) The undertaker shall compensate the owners and occupiers of any building or land in relation to which the powers conferred by this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8) Where—

(a) protective works are carried out under this article to a building; and

(b) within the period of 5 years beginning with the day on which the part of the authorised works constructed in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the construction or operation of that part of the authorised works,

the undertaker shall compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Without prejudice to article 61 (no double recovery) nothing in this article shall relieve the undertaker from any liability to pay compensation under section 10(2) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) shall be determined, in case of dispute, under Part 1 of the 1961 Act.

(11) In this article “protective works” in relation to a building means—

(a) underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, maintenance or operation of the authorised works; and

(b) any works the purpose of which is to remedy any damage which has been caused to the building by the construction, maintenance or operation of the authorised works.

Power to survey and investigate land

16.—(1) The undertaker may for the purposes of this Order—

(a) survey or investigate any land shown within the Order limits or which may be affected by the authorised works;

(b) without limiting the scope of sub-paragraph (a), make trial holes in such positions as the undertaker thinks fit on the land to investigate the nature of the surface layer and subsoil and remove soil samples;

(c) without limiting the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land;

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes; and

(e) enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (d).

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1), unless at least 7 days’ notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of the undertaker—

(a) shall, if so required, before or after entering the land produce written evidence of authority to do so; and

(b) may take onto the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes shall be made under this article—

(a) in a carriageway or footway without the consent of the highway authority; or

(b) in a private street without the consent of the street authority,

but such consent shall not be unreasonably withheld.

(5) The undertaker shall compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) Nothing in this article shall obviate the need to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979(4).

Additional powers

17.—(1) Subject to Schedule 10 (protective provisions) and having had reasonable regard to any relevant representations made by any user of the River Mersey but otherwise without prejudice to the other powers conferred by this Order or otherwise available to it, the undertaker may within the new crossing area for the purpose of or in connection with the carrying out and maintenance of the authorised works to be carried out within the new crossing area and regardless of any interference with any public or private rights—

(a) alter, relocate or replace any navigation work;

(b) carry out excavations and clearance, dredging, deepening, dumping and pumping operations;

(c) sell, use, appropriate and dispose of any materials (including liquids) obtained by it in carrying out any such operations;

(d) remove or relocate any mooring so far as may be reasonably necessary for the purposes of carrying out or maintaining the authorised works;

(e) temporarily moor or anchor vessels and structures;

(f) temporarily alter, interfere with, occupy and use the banks, bed, foreshores, waters and walls of a relevant navigation; and

(g) construct, place, maintain and remove temporary works and structures,

in such manner and to such extent as may appear to it to be necessary or convenient.

(2) Except in the case of urgency, the undertaker shall use reasonable endeavours to notify the owner of any mooring affected by the proposal to exercise the powers conferred by sub-paragraph (1)(d) before the exercise of those powers.

(3) The undertaker shall pay compensation to any person entitled to compensation under the 1961 Act who suffers any loss or damage from the exercise of the powers conferred by sub-paragraph 1(d).

(4) Any dispute as to a person’s entitlement to compensation under paragraph (3), or as to the amount of compensation, shall be determined under Part 1 of the 1961 Act.

Prohibitions within the new crossing area, etc.

18.—(1) Regardless of anything in any other enactment or rule of law but subject to the provisions of this article, the relevant navigation authority shall, if the undertaker reasonably so requires during construction of the new crossing or at any other time for reasons of public safety, at the request of the undertaker and at the undertaker’s expense, by direction close the whole or any part of the new crossing area to navigation by all vessels or by any class of vessel.

(2) In the event that no navigation authority has or admits to have jurisdiction to issue a direction under paragraph (1) the undertaker may by direction close the whole or any part of the new crossing area to navigation by all vessels or by any class of vessel for the purposes of the authorised works during construction of the new crossing or at any other time for reasons of public safety and the provisions of this article shall apply to the undertaker as if the undertaker was the relevant navigation authority.

(3) Subject to paragraph (4), a direction under paragraph (1) or (2) shall specify the duration of the closure, the part of the relevant navigation affected and the vessels to which it applies.

(4) The duration of a closure under this article may be extended by the relevant navigation authority until it is satisfied (acting reasonably) that any navigation to be opened following the closure has adequate depth and is free of obstruction.

(5) A person may not, without the written consent of the relevant navigation authority, within any part of the new crossing area, during a period when it is closed to navigation under this article—

(a) navigate any vessel or moor a vessel if the vessel concerned is subject to the closure;

(b) lay down or place any mooring or apparatus, including mains, sewers, drains and cables; or

(c) undertake or cause any other operation or activity,

unless that person does so in compliance with any direction which the relevant navigation authority has given either in an emergency or for naval or military operational requirements which the relevant navigation authority is satisfied it is not reasonably practicable to fulfil at any other time.

(6) Any person who contravenes the requirements of paragraph (5) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) Except in an emergency, the relevant navigation authority shall at the undertaker’s expense publish notice of any direction given under paragraph (1) or (2) in at least one local newspaper circulating in the area in which the works are situated, not less than 14 days before the direction is to take effect.

(8) In making a direction pursuant to paragraph (1) or (2), the relevant navigation authority shall ensure that no more of the new crossing area is closed to navigation at any time by all vessels, or by any class of vessel, than is at that time necessary in the circumstances.

(9) If complete closure of the new crossing area to all vessels or to any particular class of vessels is necessary at any time, the undertaker shall secure that any work of construction or maintenance of the new crossing shall be carried out as soon as reasonably practicable to ensure that the minimum obstruction, delay or interference is caused to vessels which may be using or intending to use the new crossing area.

(10) Without prejudice to article 22 (application of Part 1 of the 1965 Act), neither the undertaker nor the relevant navigation authority shall be liable for any costs, damages or expenses whatsoever incurred by any person as a result, directly or indirectly, of any closure of the new crossing area under this article.

(11) A direction given under this article may be varied or revoked by a subsequent direction given under this article.

Protection of the new crossing, etc.

19.—(1) A person may not without the consent of the undertaker use, for any purpose, any part of the authorised works.

(2) A person may not, without the consent in writing of the undertaker—

(a) interfere with any part of the authorised works; or

(b) remove, move or otherwise interfere with any such work or any machinery, apparatus, tools or other things in use or intended for use in connection with the authorised activities,

and to the extent that any activity within sub-paragraph (a) or (b) affects a navigation work the consent in writing of the relevant navigation authority shall also be required, provided that this paragraph shall not require the undertaker to obtain the consent of the relevant navigation authority except in accordance with Schedule 10 (protective provisions).

(3) Any consents required under this article may be given subject to conditions.

(4) A person who without reasonable excuse contravenes paragraph (1) or (2), or fails to comply with any conditions attached to a consent given by the undertaker or the relevant navigation authority under paragraph (3), shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Restriction on mooring of vessels, etc.

20.—(1) During the period of the construction of the new crossing, a person who is not engaged in the construction of the authorised works shall not, without the consent in writing of the relevant navigation authority and the undertaker (which consent may be given subject to conditions), moor any vessel or place any article over or on the bed of any relevant navigation within the new crossing area; and after that period, a person shall not within an exclusion zone—

(a) so moor without the consent of the relevant navigation authority;

(b) so place without the consent of the relevant navigation authority and the undertaker; or

(c) anchor any vessel except in an emergency.

(2) The restrictions in paragraph (1) shall have effect in relation to the relevant navigation from a day 14 days after notice of their imposition on that relevant navigation has been published in at least one local newspaper circulating in the area in which the authorised works are situated or the day on which a plan, chart or map showing the exclusion zone has been deposited at the principal office of any relevant navigation authority whichever is later.

(3) In this article “exclusion zone” means so much of any relevant navigation as is bounded by imaginary parallel lines drawn at a distance of 40 metres on either side of the centre line of the new crossing.

(1)

1991 c. 56.

(2)

S.I. 2010/675.

(3)

1964 c. 40.

(4)

1979 c. 46.