The River Mersey (Mersey Gateway Bridge) Order 2011

Article 51

SCHEDULE 8 PROTECTION OF NAVIGATION

1.  In this Schedule—

“construction” includes execution, placing, alteration and reconstruction and “constructed” has a corresponding meaning; and

“plans” includes sections, drawings, particulars and schedules of construction.

Tidal works

2.—(1) Unless its construction has commenced within 5 years of this Order coming into force no tidal work shall be constructed, replaced or re-laid except in accordance with plans approved by the Secretary of State and subject to any conditions and restrictions imposed by the Secretary of State before the work is begun.

(2) If a tidal work is constructed, replaced or re-laid in contravention of this paragraph or of any condition or restriction imposed under this paragraph—

(a) the Secretary of State may by notice in writing require the undertaker at its own expense to take whatever steps the Secretary of State considers necessary to remedy the contravention;

(b) without limiting the scope of sub-paragraph (a), the steps in question may include steps to—

(i) alter, replace or re-lay any tidal work; or

(ii) remove the tidal work or any part of it, and restore the site to its former condition or as near to its former condition as is acceptable to the Secretary of State;

(c) any notice served by the Secretary of State under sub-paragraph (a) shall specify the period within which the undertaker shall comply with the requirements of that notice and may specify different periods for the taking of different steps; and

(d) where the undertaker fails to comply with the requirements of a notice served under sub-paragraph (a) within the period specified in that notice, the Secretary of State may execute the works required by the notice.

(3) Where it appears to the Secretary of State to be urgently necessary to do so, the Secretary of State may remove the tidal work, or any part of it, or restore the site to its former condition or as near to its former condition as the Secretary of State considers appropriate.

(4) The Secretary of State may, if the Secretary of State considers it expedient, order a survey and examination of any site on which it is proposed to execute a tidal work.

Provision against danger to navigation

3.—(1) In case of damage to or destruction of a tidal work or any part of a tidal work the undertaker shall as soon as reasonably practicable notify Trinity House and shall lay down such buoys, exhibit such lights and take such steps for the prevention of danger to navigation as Trinity House shall from time to time direct.

(2) If the undertaker fails to notify Trinity House as required by this paragraph or to comply in any respect with any requirements of a direction given under this paragraph, it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Abandonment, etc. of structure

4.—(1) Where a tidal work is abandoned, or allowed to fall into decay, the Secretary of State may by notice in writing require the undertaker at its own expense—

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

(b) to remove the work and restore the site to its former condition or so near its former condition as is acceptable to the Secretary of State.

(2) Where—

(a) a work erected under this Order, part of which is a tidal work, is abandoned or allowed to fall into decay; and

(b) the part of the work on or over land above the level of mean high-water springs is in such a condition as to interfere, or cause reasonable apprehension that it may interfere, with the right of navigation or any public rights over the foreshore,

the Secretary of State may include that part of the work, or any portion of it, in any notice under sub-paragraph (1).

(3) If, at the end of the period of 28 days from the date when notice is served on the undertaker under sub-paragraph (1), it 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, the Secretary of State may execute the works specified in the notice.

Surveys, etc.

5.  Having concluded that it is expedient to do so the Secretary of State may order a survey and examination of any tidal work.

Lights on tidal works during construction

6.—(1) The undertaker shall, at or near to a tidal work during the whole time of the construction, extension, enlargement, replacement or relaying of that tidal work, exhibit from sunset to sunrise every night such lights, if any, and take such steps for the prevention of danger to navigation as the Secretary of State or Trinity House, or failing agreement between them, as the Secretary of State shall from time to time direct.

(2) If the undertaker fails to comply in any respect with any requirements of a direction given under this paragraph, it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Permanent lights on tidal works

7.—(1) After completion of a tidal work the undertaker shall exhibit at the outer extremity of that tidal work from sunset to sunrise every night such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as Trinity House shall from time to time direct.

(2) If the undertaker fails to comply in any respect with any requirements of a direction given under this paragraph, it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Defence of due diligence

8.—(1) In proceedings for an offence under paragraphs 3, 6 and 7 it shall be a defence for the undertaker to show that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(2) If in any case the defence provided by sub-paragraph (1) involves the allegation that the commission of the offence was due to the act or default of another person, the undertaker shall not, without the leave of the court, be entitled to rely on the defence unless, at least 7 clear days before the hearing, it has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of the other person as was then in its possession.

Trinity House

9.—(1) Where the undertaker is required to give notice of any matter to Trinity House in accordance with this Schedule it shall give notice of that matter to MDHC and MSCC at the same time.

(2) When Trinity House does not give any direction under this Schedule MDHC (in the case of the River Mersey) or MSCC (in the case of the Manchester Ship Canal) may give a direction in its stead provided that no such direction may conflict with any direction of Trinity House.

(3) Where MDHC or MSCC gives a direction as permitted by this paragraph it shall take effect as if given by Trinity House.

(4) In this paragraph—

“MDHC” means the Mersey Docks and Harbour Company; and

“MSCC” means the Manchester Ship Canal Company.

Expenses

10.  The Secretary of State shall be entitled to recover from the undertaker any expenditure incurred by the Secretary of State under sub-paragraph 2(2)(d) or 2(3) or 4(3) or on a survey and examination under sub-paragraph 2(4) or paragraph 5.