The River Mersey (Mersey Gateway Bridge) Order 2011

PART 1 PROTECTION OF THE MANCHESTER SHIP CANAL COMPANY

1.—(1) For the protection of the Manchester Ship Canal Company the following provisions of this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and MSCC, have effect.

(2) In this Part of this Schedule—

“the Bridgewater Canal” means the Bridgewater Canal owned or managed by MSCC or the Bridgewater Canal Company Limited, and includes any works connected with the Bridgewater Canal for the maintenance or operation of which MSCC is responsible and lands held or used by MSCC for the purposes of the Bridgewater Canal;

“the Canals” means the Bridgewater Canal and the Ship Canal;

“construction”, in relation to any specified work or protective work, includes execution, placing, altering, replacing, relaying and removal, and “construct” and “constructed” have corresponding meanings;

“deputy harbour master” means the deputy harbour master appointed by MSCC for the purpose in question;

“detriment” means any physical damage to the Canals wholly or partly caused by the specified works which affects the stability, structure and safety of the Canals and, without limiting the scope of that meaning, includes—

(a)

the erosion of the bed, banks or walls of the Canals, or the impairment of the stability of any works or lands forming part of the Canals;

(b)

damage to the wall of the Ship Canal caused by excessive weight being placed on the Ship Canal wall;

(c)

the silting of the Canals or the deposit of materials in the Canals so as to damage the Canals;

(d)

the pollution of the Canals; and

(e)

any alteration in the water level of the Canals, or interference with the supply of water to the Canals, or drainage from the Canals;

“the engineer” means an engineer (whether an employee of MSCC or external consultant) appointed by MSCC for the purpose in question;

“exclusion zone” means an area of land extending 20 metres landwards from either bank of the Ship Canal and an area of land extending 3 metres landwards from either bank of the Bridgewater Canal;

“MSCC” means the Manchester Ship Canal Company and its statutory successors;

“plans” includes sections, drawings, specifications, calculations, soil reports, descriptions (including descriptions of methods of construction), risk assessments and method statements but shall not include the design and appearance of the specified works;

“protective work” means a work which is reasonably necessary to be carried out to minimise or prevent detriment constructed under sub-paragraph 5(3)(a);

“the Ship Canal” means the Manchester Ship Canal owned and managed by MSCC, and includes any works connected with the Ship Canal for the maintenance or operation of which MSCC is responsible and lands held or used by MSCC for the purposes of the Ship Canal;

“specified work” means so much of the authorised works as is situated upon, across, under, over or within 15 metres of, or may in any way affect, the Canals or either of them; and

“weight limit” means the relevant weight limit for any section of the wall of the Ship Canal that may be affected by any specified work or protective work such weight limit to be approved by the engineer in accordance with the provisions of paragraph 5.

2.  The undertaker shall not under the powers conferred by this Order acquire compulsorily any land of MSCC or any easement or other right over such land, other than such land or easements or other rights over such land, as is reasonably necessary for, or in connection with, the construction, maintenance or operation of the works authorised by this Order.

3.  The undertaker shall not under the powers conferred by this Order construct in the exclusion zone any bridge piers (and their foundations) to support an approach viaduct to the new bridge except with the written agreement of MSCC which may be withheld by MSCC at its absolute discretion.

4.  Where so required by the engineer for the purpose of ensuring the safety of the Canals the undertaker shall, to the reasonable satisfaction of the engineer, fence off any specified work or protective work or take such steps as the engineer may reasonably require to be taken for the purpose of separating a specified work or a protective work from the Canals, whether on a temporary or permanent basis or both.

5.—(1) The undertaker shall, before commencing construction of any specified work, including any temporary works, supply to MSCC proper and sufficient plans of that work and such further particulars available to it as MSCC may within 14 days of the submission of the plans reasonably require for the reasonable approval of the engineer and shall not commence the construction of any specified work except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.

(2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld or delayed, and if within 42 days after such plans (including any other particulars reasonably required under sub-paragraph (1)) have been supplied to MSCC the engineer has not intimated disapproval of those plans and the grounds of disapproval the engineer shall be deemed to have approved the plans as submitted.

(3) When signifying approval of the plans the engineer may specify—

(a) any protective work to be carried out before the commencement of a specified work (whether temporary or permanent) that may be reasonably required to prevent detriment; and

(b) such other requirements as may be reasonably necessary to prevent detriment but not involving alteration to the basic design of the specified works,

and such protective work shall be constructed by the undertaker or (if the undertaker so elects) MSCC without unnecessary delay and the undertaker shall not commence the construction of any specified work until the engineer has notified the undertaker that the protective work has been completed to the engineer’s reasonable satisfaction.

(4) The approval of the engineer under sub-paragraph (3) shall not be unreasonably withheld or delayed, and if by the end of the period of 14 days beginning with the date on which the engineer is notified of the completion of such protective work the engineer has not intimated disapproval and the grounds of disapproval the engineer shall be deemed to have approved the protective work.

(5) MSCC shall at all times afford reasonable facilities to the undertaker and its agents for access to any protective works carried out by MSCC under this paragraph during their construction and shall supply the undertaker with such information as it may reasonably require with regard to such protective works or the method of constructing them.

6.  The undertaker shall not impede, obstruct or interfere with, as far as reasonably practicable, the free and uninterrupted and safe use of the Canals or the vessels on the Canals except to the extent that the obstruction or interference has otherwise been agreed by MSCC.

7.  The undertaker shall provide and maintain at its own expense in the vicinity of any specified work or protective work such temporary lighting from sunset to sunrise or other periods of adverse visibility and such signal lights for the control of navigation as the deputy harbour master may reasonably require during the construction or failure of the specified work or protective work.

8.—(1) Any specified work shall, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled by arbitration and with any requirements made under sub-paragraph 5(3)(b);

(b) under the supervision (if given), and in the case of any specified work which directly and physically affects the Canals, to the reasonable satisfaction of the engineer;

(c) in such a manner as to cause as little detriment as is reasonably practicable to the Canals;

(d) in such a manner as to cause no detriment to the walls of the Canals;

(e) so far as is reasonably practicable, so as not to interfere with, delay or obstruct the safe passage of vessels using the Canals except to the extent that such interference, delay or obstruction has otherwise been agreed by MSCC; and

(f) in such a manner as to cause as little inconvenience as is reasonably practicable to MSCC, its officers and agents.

(2) Nothing in this Order shall authorise the undertaker to make or maintain any permanent works in or over the Canals so as to impede or prevent (whether by reducing the headroom or depth of water available for vessels, or the width of the Canals or otherwise) the passage of any vessel along the Canals (unless otherwise agreed in writing by MSCC) such that—

(a) the minimum permanent vertical clearance over the Ship Canal will be maintained at all times at 28.63 metres Above Ordnance Datum and the existing permanent minimum width of the Ship Canal will be maintained at all times at 40 metres; and

(b) the minimum permanent vertical clearance over the Bridgewater Canal will be maintained at all times at 5 metres over the normal water level of 25.260 metres Above Ordnance Datum and the existing permanent minimum width of the Bridgewater Canal will be maintained at all times at 5 metres.

(3) Nothing in this Order shall authorise the undertaker to—

(a) construct or maintain any specified work or protective work which would result in the weight limit of the Ship Canal wall being exceeded; or

(b) use the Ship Canal wall as a load bearing wall or structure for any specified work or protective work.

(4) Nothing in this Order shall authorise the undertaker to construct any specified work or make or maintain any permanent works in the Bridgewater Canal which would impede the free-flow of water in the Bridgewater Canal.

(5) Following the completion of the construction of any specified work the undertaker shall restore the Canals to a condition no less satisfactory than their condition immediately prior to the commencement of those works subject to the presence of the new bridge.

9.—(1) The undertaker shall not in the course of constructing any specified work or protective work or otherwise in connection with such works do or permit anything which may result in the deposit of any polluting materials on, in or over the Canals and shall take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph.

(2) Nothing in article 14 (discharge of water) shall authorise the undertaker to discharge (directly or indirectly) surface drainage water into the Canals save that with the written consent of MSCC the undertaker may discharge water directly into the Ship Canal only.

(3) The undertaker shall not in the course of constructing any specified work or protective work or otherwise in connection with such works do or permit anything which may result in the deposit of any other materials in the Canals and shall take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph save that with the written consent of MSCC the undertaker may deposit any other materials into the Ship Canal only.

(4) Any consent of MSCC required under this paragraph shall not be unreasonably withheld or delayed and may be given subject to such terms and conditions as MSCC may reasonably require including—

(a) in the case of a discharge of water into the Ship Canal, concerning the reimbursement by the undertaker of expenses incurred by MSCC in disposing of the water so discharged, being expenses which MSCC would not have incurred but for the discharge;

(b) in the case of a deposit of any other materials, so as to ensure that the use of the Ship Canal is not obstructed or rendered less safe and the reimbursement by the undertaker of additional expenses incurred by MSCC in dredging the Ship Canal, being expenses which MSCC would not have incurred but for the deposit of other materials.

10.—(1) The undertaker shall at all reasonable times on being given reasonable notice (except in cases of emergency) allow reasonable facilities to the engineer for access to inspect any specified work during its construction.

(2) The undertaker shall supply the engineer with all such information as the engineer may reasonably require with regard to any specified work or the method of constructing it.

11.—(1) If any reasonable alterations or additions, either permanent or temporary, to the Canals are necessary in consequence of the construction of the specified work in order to avoid detriment and MSCC gives to the undertaker reasonable notice (being not less than 28 days) of its intention to carry out such alterations or additions (which shall be specified in the notice), and takes into account any reasonable representations the undertaker may make to the notice within 21 days of receipt of the notice, the undertaker shall pay to MSCC, provided that 28 days’ notice has been given to the undertaker, the cost of those alterations or additions reasonably incurred including, in respect of permanent alterations and additions, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by MSCC in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If the cost of maintaining, working or renewing the Canals is reduced as a 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 undertaker to MSCC under sub-paragraph (1).

12.—(1) The undertaker shall, upon completion of any part of a specified work and after the purpose of any temporary works has been accomplished, remove as soon as practicable any temporary works constructed and materials for temporary works placed in, on or over the Canals in connection with that part of the specified work.

(2) All temporary works shall be removed to the reasonable satisfaction of the engineer and in such a way as causes as little detriment or interference as reasonably practicable with, or delay or interruption to, the safe passage of vessels along the Canals.

(3) In the event of any detriment to the Canals or interference with, or delay or interruption to, any vessels on the Canals that is caused by the undertaker’s failure to remove any such temporary works, the undertaker shall immediately make good such damage and pay to MSCC the costs and expenses to which it may be put and the compensation for any loss which it may suffer by reason of such detriment, interference, delay or interruption.

(4) In the event of the undertaker failing to remove the temporary works within a reasonable period after receiving notice from MSCC, MSCC may remove the same and charge the undertaker with the reasonable costs and expenses reasonably incurred as a result.

13.—(1) Following the completion of any specified work and any protective work the undertaker and MSCC shall co-operate with each other on the development of a maintenance schedule for the new bridge to reflect, where possible, the maintenance requirements of the undertaker with regards to the new bridge and the operational requirements of MSCC in managing the Ship Canal.

(2) The undertaker and the deputy harbour master shall jointly review the maintenance schedule on a twice yearly basis (on a date to be agreed between the parties) and, acting reasonably, shall agree what reasonable actions (if any) need to be taken to revise the maintenance schedule.

(3) The undertaker shall, before placing any temporary structure or apparatus over the Ship Canal required in connection with the maintenance or repair of the new bridge or renewal of a specified work, comply with the reasonable requirements of MSCC, such requirements to include—

(a) the undertaker providing MSCC with 42 days’ written notice of this requirement so that, in particular, MSCC may bring these works to the attention of users of the Ship Canal;

(b) receiving approval from the deputy harbour master in accordance with the maintenance schedule, which approval shall not be unreasonably withheld or delayed in any event; and

(c) any temporary structure or apparatus being capable of being moved within 45 minutes of the undertaker being instructed to do so by the deputy harbour master to allow the safe movement of vessels along the Ship Canal.

(4) In the case of repair work carried out in an emergency the undertaker shall only be required to give such notice to the deputy harbour master as may be reasonably practicable in the circumstances.

14.  If as a result of the construction of any specified work or protective work any part of the towing path or access way beside the Bridgewater Canal, or any public right of way giving access to the Bridgewater Canal, is temporarily closed to pedestrians or cyclists, the undertaker shall provide a substitute path or paths for such time as the closure continues to the satisfaction of the relevant highway authority and MSCC and shall reinstate, on completion of the specified work or protective work, to the same standard and to the satisfaction of the relevant highway authority and MSCC the towing path or access way beside the Bridgewater Canal (such towing path or access way to be of no less width or benefit than the towing path or access way replaced).

15.  If at any time after the completion of a specified work, not being a work vested in MSCC, MSCC give notice to the undertaker informing it that the state of maintenance of the specified work appears to be such that the specified work is causing or is likely to cause detriment, the undertaker shall, on receipt of such notice, take such steps as may be reasonably necessary to put the specified work in such state of maintenance as not to cause such detriment and if the undertaker fails to do so, MSCC may make and do in and upon the land of the undertaker or MSCC all such works to put the specified work in such state of maintenance as before and the cost, expenses and losses incurred by MSCC in so doing shall be repaid to MSCC by the undertaker.

16.  Any reasonable and proper additional expenses not otherwise provided for in this Part of this Schedule which MSCC may incur in maintaining the Canals under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 42 days’ notice of the commencement of such maintenance has been given to the undertaker, be repaid by the undertaker to MSCC.

17.  Before providing any illumination or illuminated traffic sign on or in connection with the specified work or in the vicinity of the Canals, the undertaker shall consult with MSCC and comply with MSCC’s reasonable requirements in regard to such lighting with a view to ensuring that—

(a) appropriate navigation lighting will be placed on the new bridge; and

(b) any bridge illuminations will not be directed upstream or downstream into the path of oncoming vessels on the Canals to ensure that such illumination or illuminated signs can not be confused with any lights or lighting used for controlling, directing or securing the safety of vessels on the Canals.

18.—(1) If any canal work is abandoned, and is in such a condition that it is, or is likely to become, a danger to or to interfere with navigation, MSCC may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice to remove the work and (to such extent as MSCC reasonably requires) to restore the site to its former condition.

(2) If any canal work is in such condition that it is, or is likely to become, a danger to or to interfere with navigation, MSCC may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—

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

(b) if the undertaker so elects, to remove the work and (to such extent as MSCC reasonably requires) to restore the site to its former condition.

(3) If—

(a) a work which consists of a canal work and a non-canal work is abandoned or falls into decay; and

(b) the non-canal work is in such a condition as to interfere with the right of navigation in the Canals or as to interfere with the rights of access or use of land adjacent to the Canals,

MSCC may include the non-canal work, or any part of it, in any notice under this paragraph.

(4) If after such reasonable period as may be specified in a notice under this paragraph the undertaker 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, MSCC may carry out the works specified in the notice and any costs incurred by MSCC in so doing shall be recoverable from the undertaker.

(5) In this paragraph “canal work” means so much of any specified work or any other work of which the undertaker is in possession under the powers conferred by this Order as is in or over the Canals and “non-canal work” means so much of any such work as is not in or over the Canals.

19.  The undertaker shall repay to MSCC all costs, charges and expenses reasonably and properly incurred by MSCC—

(a) in constructing any protective work under the provisions of paragraph (5)(3)(a) including, in respect of any permanent protective work, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the employment of any inspectors, watchguards and other persons whom it is reasonably necessary to appoint for inspecting, watching and lighting any part of the Canals affected by any specified work or protective work and for preventing as far as may be practicable all interference, obstruction, danger or accident arising from the construction, maintenance, renewal, repair or failure of the specified work or any protective work;

(c) in respect of any special navigation or traffic procedures resulting from any restrictions which are necessary as a result of the construction, maintenance, renewal, repair or failure of the specified work and which may in the reasonable opinion of the engineer be required to be imposed or from the suspension of navigation or traffic which may be necessary for the same reasons;

(d) in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of any specified work or any protective work; and

(e) in bringing the specified work or any protective work to the notice of users of the Canals.

20.—(1) If any detriment to the Canals or any interference with, or delay or obstruction to, any vessels on the Canals is caused by, or arises as a result of, the construction or failure of any specified work or protective work if carried out by the undertaker, the undertaker or (if MSCC so elects) MSCC, but at the undertaker’s expense, shall immediately make good such detriment and the undertaker shall on demand pay to MSCC all reasonable expenses to which MSCC may be put, and compensation for any loss which MSCC may sustain, in making good or otherwise by reason of any such detriment, interference, delay or obstruction.

(2) The undertaker shall be responsible for and make good to MSCC all claims, demands, proceedings, costs, charges, damages, expenses and losses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by MSCC—

(a) by reason of the construction or failure of any specified work or a protective work;

(b) by reason of any planned closure of the Canals, as a result of the construction or failure of any specified work or a protective work, or of any closure which is not in accordance with the provisions of this Part of this Schedule;

(c) by reason of any planned closure of the Canals over-running, as a result of the construction or failure of any specified work or a protective work; and

(d) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction of any specified work or of a protective work,

and subject to sub-paragraph (4) the undertaker shall effectively indemnify and hold harmless MSCC from and against all charges, claims, demands, expenses and liabilities arising out of any of the matters referred to in paragraphs (a), (b), (c) and (d).

(3) Nothing in this paragraph shall impose any liability on the undertaker with respect to any losses, costs, charges, damages, expenses, claims or demand referred to in sub-paragraph (2) to the extent that they are attributable to negligence on the part of MSCC or of any person in their employ or their contractors or agents.

(4) The fact that any act or thing may have been done by MSCC on behalf of the undertaker or in accordance with any requirements of the engineer or in accordance with plans approved by the engineer or under the engineer’s supervision or awards of an arbitrator shall not (if it was done without negligence on the part of MSCC or any person in its employ or its contractor or agents) excuse the undertaker from any liability under the provisions of this paragraph.

(5) MSCC shall give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand shall be made without the prior consent in writing of the undertaker (which shall not be unreasonably withheld) which, if it notifies MSCC that it desires to do so, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand provided that no settlement or compromise of any such claim or demand shall be made without the consent of MSCC (which shall not be unreasonably withheld). If consent is not given by the undertaker, MSCC shall diligently defend such claim or demand.

21.  Where under any provision of this Part of this Schedule MSCC or the undertaker (as the case may be) is entitled to a capitalised sum, it shall provide such details of the formula by which the sum is calculated as may reasonably be requested by the party required to pay the sum.

22.  Except as provided by this Order, nothing in this Order shall prejudice or derogate from the estates, rights, interests, privileges, liberties or franchises of MSCC or alter or diminish any power, authority or jurisdiction vested in MSCC at the making of this Order.

23.  Any differences arising between the undertaker and MSCC under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) shall be referred to and settled by arbitration in accordance with article 62 (arbitration).