Article 45
1. The following provisions of this Schedule shall have effect, unless otherwise agreed in writing between the Agency and Network Rail and, in the case of paragraph 14, any other person on whom rights or obligations are conferred by that paragraph.
2. In this Schedule—
“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;
“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;
“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of his powers under section 8 of the Railways Act 1993;
“Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 736 of the Companies Act 1985(1) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;
“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;
“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993);
“railway property” means any railway belonging to Network Rail Infrastructure Limited and—
any station, land, works, apparatus and equipment belonging to Network Rail Infrastructure Limited or connected with any such railway; and
any easement or other property interest held or used by Network Rail Infrastructure Limited for the purposes of such railway or works, apparatus or equipment; and
“specified work” means so much of any of the authorised works as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.
3.—(1) Where under this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.
(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail shall—
(a)co-operate with the Agency with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and
(b)use its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised works pursuant to this Order.
4.—(1) The Agency shall not exercise the powers conferred by section 11(3) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.
(2) The Agency shall not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.
(3) The Agency shall not exercise the powers conferred by sections 271 or 272 of the 1990 Act, as applied by Schedule 6 to this Order, in relation 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 Agency shall not under the powers of this Order acquire or use or acquire new rights over any railway property except with the consent of Network Rail.
(5) Where Network Rail is asked to give its consent pursuant to this paragraph, such consent shall not be unreasonably withheld but may be given subject to reasonable conditions.
5.—(1) The Agency shall before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work shall not be commenced 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, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated disapproval of those plans and the grounds of his disapproval the Agency may serve upon the engineer written notice requiring the engineer to intimate his approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the Agency. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as submitted.
(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the Agency that Network Rail desires itself to construct any part of a 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 then, if the Agency desires such part of the specified work to be constructed, Network Rail shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the Agency in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the Agency.
(4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should he carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail or by the Agency, if Network Rail so desires, and such protective works shall be carried out at the expense of the Agency in either case with all reasonable dispatch and the Agency shall not commence the construction of the specified works until the engineer has notified the Agency that the protective works have been completed to his reasonable satisfaction.
6.—(1) Any specified work and any protective works to he constructed by virtue of paragraph 5(4) 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 paragraph 5;
(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;
(c)in such manner as to cause as little damage as is possible to railway property; and
(d)so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic thereon and the use by passengers of railway property.
(2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the Agency 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.
(3) Nothing in this Schedule shall impose any liability on the Agency with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the Agency or its servants, contractors or agents.
7. The Agency shall—
(a)at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and
(b)supply the engineer with all such information as he may reasonably require with regard to a specified work or the method of constructing it.
8. Network Rail shall at all times afford reasonable facilities to the Agency and its agents for access to any works carried out by Network Rail under this Schedule during their construction and shall supply the Agency with such information as it may reasonably require with regard to such works or the method of constructing them.
9.—(1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the Agency reasonable notice of its intention to carry out such alterations or additions (which shall be specified in the notice), the Agency shall pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.
(2) If during the construction of a specified work by the Agency, Network Rail gives notice to the Agency that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the Agency decides that part of the specified work is to be constructed, Network Rail shall assume construction of that part of the specified work and the Agency shall, notwithstanding any such approval of a specified work under paragraph 5(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.
(3) The engineer shall, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a) provide such details of the formula by which those sums have been calculated as the Agency may reasonably require.
(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving shall be set off against any sum payable by the Agency to Network Rail under this paragraph.
10. The Agency shall repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—
(a)in constructing any part of a specified work on behalf of the Agency as provided by paragraph 5(3) or in constructing any protective works under the provisions of paragraph 5(4) 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 approval by the engineer of plans submitted by the Agency and the supervision by him of the construction of a specified work;
(c)in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it shall he 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 a specified work;
(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 a specified work or from the substitution of 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 a specified work.
11. 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 Agency informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the Agency shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.
12. The Agency 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.
13. 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, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the Agency, be repaid by the Agency to Network Rail.
14.—(1) The Agency shall pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may he occasioned to or reasonably incurred by Network Rail—
(a)by reason of the construction or maintenance of a specified work or the failure thereof; or
(b)by reason of any act or omission of the Agency or of any person in its employ or of its contractors or others whilst engaged upon a specified work,
and the Agency shall indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work 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 Agency 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 employ or of its contractors or agents) excuse the Agency from any liability under the provisions of this sub-paragraph.
(2) Network Rail shall give the Agency reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior consent of the Agency.
(3) The sums payable by the Agency under sub-paragraph (1) shall include a sum equivalent to the relevant costs.
(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail shall promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.
(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).
(6) In this paragraph—
“the 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, maintenance or failure of a specified work or any such act or omission as mentioned in subparagraph (1); 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.
15. Network Rail shall, on receipt of a request from the Agency, from time to time provide the Agency free of charge with written estimates of the costs, charges, expenses and other liabilities for which the Agency is or will become liable under this Schedule (including the amount of the relevant costs mentioned in paragraph 14) and with such information as may reasonably enable the Agency to assess the reasonableness of any such estimate or claim made or to he made pursuant to this Schedule (including any claim relating to those relevant costs).
16. In the assessment of any sums payable to Network Rail under this Schedule there shall not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the Agency under this Schedule or increasing the sums so payable.
17. The Agency and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the Agency of—
(a)any railway property shown on the works and land plans and described in the book of reference;
(b)any lands, works or other property held in connection with any such railway property; and
(c)any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.
18. Nothing in this Order, or in any enactment incorporated with or applied by this Order, shall prejudice or affect the operation of Part I of the Railways Act 1993.
19. The Agency shall give written notice to Network Rail if any application is proposed to be made by the Agency for the Secretary of State’s consent, under article 53 (certification of plans etc.) of this Order and any such notice shall be given no later than 28 days before any such application is made and shall describe or give (as appropriate)—
(a)the nature of the application to be made;
(b)the extent of the geographical area to which the application relates; and
(c)the name and address of the person acting for the Secretary of State to whom the application is to be made.
20. The Agency shall no later than 28 days from the date that the plans submitted to and certified by the Secretary of State in accordance with article 53 (certification of plans etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read only memory.