The River Mersey (Mersey Gateway Bridge) Order 2011

PART 4 PROTECTION OF THE MERSEY CONSERVANCY

General

44.  For the protection of the Mersey Conservancy and the users of the River Mersey, the following provisions of this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the Secretary of State for Transport, have effect.

Interpretation

45.  In this Part of this Schedule—

“ACRM” means the Acting Conservator of the River Mersey, or, if no person holds that office, the Secretary of State for Transport;

“construction” includes execution, placing, altering, replacing, relaying and removal and, in its application to the tidal works which include or comprise any operation, means the carrying out of that operation and “construct” and “constructed” have corresponding meanings; and

“plans” includes sections, elevations, drawings, specifications and programmes and construction methods including where applicable, such relevant hydraulic information about the River Mersey as may be reasonably requested by the ACRM.

Tidal work

46.—(1) The undertaker shall not commence any tidal work until—

(a) it has supplied to the ACRM proper and sufficient plans of that work and such further particulars as the ACRM may within 14 days of the submission of the plans reasonably require; and

(b) those plans have been approved in writing by the ACRM.

(2) A tidal work must not be constructed except in accordance with such plans as have been approved in writing by the ACRM, such approval not to be unreasonably withheld or delayed.

(3) If, within 42 days after such plans and any other particulars reasonably required under sub-paragraph (1)(a) have been supplied to the ACRM, the ACRM does not notify the undertaker of approval or disapproval of those plans, the ACRM is to be deemed to have disapproved of the plans or such part of the plans as is not approved.

(4) The approval of such plans may include conditions that—

(a) specified protective work be carried out before the commencement of a tidal work (whether temporary or permanent), if that protective work is reasonably required to prevent detriment to vessel movement on, or the flow or regime of, the River Mersey; and

(b) other things, not including alteration to the basic design of the works, be done or omitted in order to prevent detriment to vessel movement on, or the flow or regime of, the River Mersey.

(5) The undertaker—

(a) must comply with all such conditions; and

(b) must not commence construction of the relevant tidal work until the ACRM has notified the undertaker in writing that any protective work has been completed to the ACRM’s reasonable satisfaction.

(6) (a) The undertaker must carry out all operations for the construction or maintenance of any tidal works so that vessel movement on, or the flow or regime of, the River Mersey and the exercise of the ACRM’s statutory functions do not suffer more interference than is reasonably practicable.

(b) The ACRM may at all reasonable times, on giving such notice as may be reasonable in the circumstances, inspect and survey such operations.

(7) (a) If any tidal work is constructed otherwise than in accordance with—

(i) the requirements of this Part of this Schedule; or

(ii) with any condition in an approval pursuant to sub-paragraph (1),

the ACRM may by notice in writing require the undertaker at the undertaker’s own expense to comply with the requirements of this Part of this Schedule or that condition.

(b) If the undertaker does not comply with that notice, or is unable to do so, within a reasonable period specified in the notice, the ACRM may in writing require the undertaker to remove, alter or pull down the tidal work and, where the tidal work is removed or pulled down, to restore the site of that work to its condition prior to the construction of the tidal work to such an extent and within such limits as the ACRM may think proper.

(8) Upon completion of the construction or maintenance of an authorised work, the undertaker must—

(a) remove as soon as is practicable any temporary tidal works and materials for such temporary tidal works, carried out or placed only for the purposes of that part of the authorised work; and

(b) make good the site to the reasonable satisfaction of the ACRM.

(9) The undertaker must not—

(a) deposit in or allow to fall or be washed into the River Mersey any gravel, soil or other material except to the extent permitted by any approval of a tidal work;

(b) discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise; or

(c) discharge into the river any water by any watercourse, public sewer or drain without the consent of the ACRM, who may impose such terms and conditions as may be reasonable but must not unreasonably withhold consent.

(10) The undertaker shall (subject to sub-paragraph (11)) remove from the River Mersey any pile, stump or other obstruction which becomes exposed in consequence of the construction of a tidal work.

(11) If it is not reasonably practicable to remove a pile, stump or other obstruction, the undertaker must cut it off at such level below the bed of the River Mersey as the ACRM may reasonably direct.

(12) If the undertaker fails to remove or cut off (as the case may be) any pile, stump or other obstruction pursuant to sub-paragraphs (10) and (11) within a period of 28 days beginning with the date of receipt of a written notice from the ACRM requiring its removal or cutting off, the ACRM may carry out the removal or cutting off and recover the cost of doing so from the undertaker.

(13) (a) If a tidal work is abandoned or falls into decay, the ACRM may by notice in writing require the undertaker—

(i) to repair or restore the tidal work, or any part of it; or

(ii) to remove the tidal work and restore the site of that work to its condition prior to the construction of the tidal work.

(b) In that notice the ACRM may—

(i) prescribe a reasonable period for compliance; and

(ii) prescribe such extent and such limits for the restoration as the ACRM thinks proper.

(14) If—

(a) a work consisting partly of a tidal work and partly of works (“the land works”) on or over land above the level of high-water spring tides is abandoned or falls into decay; and

(b) the land works are in such condition as to interfere or cause reasonable apprehension that they might interfere with the right of navigation on the River Mersey or other public rights over the foreshore,

the ACRM may include the land works or any part of them in any notice under sub‑paragraph (13).

(15) If the work specified in a notice given under sub-paragraph (13) is not completed to the satisfaction of the ACRM, the ACRM may undertake that work and may recover any expenditure reasonably incurred in doing so from the undertaker.

(16) On completion of the construction of the tidal works, the undertaker must supply to the ACRM a plan on a scale of not less than 1 to 2500 and sections and elevations on a scale of not less than 1 to 100 showing to the ACRM’s reasonable satisfaction the situation and levels of the permanent tidal works at that time.

47.—(1) The undertaker must at all times comply with the hydrodynamic and sedimentary monitoring plans agreed between the undertaker and the ACRM and any variations of the plan agreed between them.

(2) If the undertaker fails to do so to the satisfaction of the ACRM, the ACRM may undertake such measures as are reasonably necessary to secure such compliance and may recover any expenditure reasonably incurred from the undertaker in doing so.

48.  When giving any notice required by this Order to Trinity House or the Mersey Docks and Harbour Company, the undertaker must give a copy of that notice to the ACRM.

49.—(1) The undertaker must reimburse to the ACRM all costs, charges, damages and expenses which may reasonably be incurred by the ACRM—

(a) by reason of the construction or maintenance of the authorised works or failure subsequently; or

(b) by reason of any act or omission of the undertaker or of any persons in its employ or of its contractors or agents or others whilst engaged upon the construction or maintenance of the authorised works or dealing with any failure of such works; or

(c) by reason of the hydrodynamic and sedimentary monitoring plan.

(2) The undertaker must indemnify the ACRM from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission.

(3) The fact that any act or thing may have been done by the ACRM on behalf of the undertaker or done by the undertaker, any person in its employ or its contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the ACRM, or in a manner approved by the ACRM, or under its supervision or the supervision of its duly authorised representative, shall not (if it was done or required without negligence on the part of the ACRM or the duly authorised representative of the ACRM, or any person in the employ of the ACRM or the contractors or agents of the ACRM) excuse the undertaker from liability under the provisions of this paragraph.

(4) The ACRM must give the undertaker reasonable notice of any such claim or demand as is referred in sub-paragraph (1) and no settlement or compromise subsequently may be made without the prior consent of the undertaker, which must not be unreasonably withheld.

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