The Chiltern Railways (Bicester to Oxford Improvements) Order 2012

Article 53

SCHEDULE 17 FOR THE PROTECTION OF THE CANAL & RIVER TRUST

1.—(1) For the protection of the Canal & River Trust, the following provisions, have effect unless otherwise agreed in writing between the Company and the Trust.

(2) In this Schedule—

“the canal” means any canal or waterway owned or managed by the Trust, and includes any works connected with any such canal or waterway for the maintenance of which the Trust is responsible and any lands held or used by the Trust for the purposes of the canal;

“canal work” means so much of any specified work or any other work of which the Company is in possession under the powers conferred by this Order as is in or over the canal;

“construction” includes execution, placing, altering, replacing and relaying and includes removal;

“detriment” means any damage to the canal or any other property of the Trust and, without limitation on the scope of the meaning, includes—

(a)

the erosion of the bed or banks of the canal, or the impairment of the stability of any works, lands or premises forming part of the canal;

(b)

the silting of the canal or the deposit of materials in it so as to materially damage the canal;

(c)

the pollution of the canal;

(d)

any material alteration of the water level of the canal, or material interference with the supply of water to the canal, or drainage of water from the canal; and

(e)

any material harm to the ecology of the canal (including any material adverse impact on any site of special scientific interest comprised in the canal);

“non-canal work” means so much of any specified work or any other work of which the Company is in possession under the powers conferred by this Order as is not in or over the canal;

“plans” includes sections, drawings, specifications and method statements;

“specified work” means so much of any permanent or temporary work authorised by this Order as is in, across, under, or within 15 metres of, or may in any way affect, the canal but does not include painting;

“stoppage season” means a period of 5 calendar months running consecutively from 1 November until 31 March inclusive; and

“the Trust” means the Canal & River Trust.

2.  The Company must not under the powers conferred by article 22 (power to acquire land) acquire compulsorily any land of the Trust without the consent of the Trust.

3.—(1) Subject to sub-paragraph (2), the Company must not under the powers conferred by article 22 (power to acquire land) acquire compulsorily any easement or other right over any land of the Trust other than such easements or other rights over any such land, as are reasonably necessary for, or in connection with, the construction, maintenance or operation of the authorised works.

(2) The Company must not acquire any such easement or other right that would impede navigation (such that minimum clear headroom is reduced to below 3 metres above water level or the navigable width of the canal is reduced below that existing on the date on which this Order is made) at any point along the length of the canal.

4.  Before beginning to construct any specified work, the Company must submit to the Trust plans of the work and such further particulars available to it as the Trust may within 14 days of the submission of the plans reasonably require.

5.  Any specified work must not be constructed except in accordance with such plans as may be approved in writing by the Trust or determined under article 57 (arbitration).

6.  Any approval of the Trust required under paragraph 5 must not be unreasonably withheld and—

(a) is deemed to have been given if it is neither given nor refused (with an indication of the grounds for refusal) within 28 days of the submission of the plans for approval or where further particulars are submitted under paragraph 4, within 28 days of the submission of those particulars; and

(b) may be given subject to such reasonable requirements as the Trust may make for the purpose of ensuring the safety or stability of the canal, including requirements as to the construction of protective works.

7.  Any specified work, and any protective works required by the Trust under paragraph 6(b), must be constructed without unnecessary delay to the reasonable satisfaction of the Trust, and in such manner as to cause as little damage to the canal as may be reasonably practicable and as little interference as may be reasonably practicable with the passage of vessels using the canal, and an officer of the Trust is entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect the construction of such work or works.

8.  The Company must give to the Trust not less than 56 days’ notice in writing of its intention to commence construction of any specified work or any protective works and also, except in emergency (when the Company must give such notice as may be reasonably practicable), of its intention to carry out any works for the repair or maintenance of any specified work in so far as such works of repair or maintenance affect or interfere with the canal.

9.  The Company must not—

(a) temporarily close the canal; or

(b) temporarily obstruct navigation along the canal;

other than during the stoppage season and must give to the Trust notice in writing of its intention to close temporarily or obstruct temporarily the canal by 1 May immediately prior to the relevant stoppage season.

10.  The Company must not exercise the maintenance powers conferred by articles 5 (power to construct and maintain works) and 30 (temporary use of land for maintenance of works) in relation to the canal unless such exercise is with the consent of the Trust.

11.  The Company must bear the reasonable costs of the carrying out, by a qualified surveyor or engineer (“the surveyor”) to be appointed by the Trust and Company, of surveys of so much of the canal as will or may be affected by the specified works—

(a) before commencement of the initial construction of any part of the specified works; and

(b) following completion of the specified works,

and if the Trust and the Company do not agree on the appointment of the surveyor under this paragraph an arbitrator is to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

12.  For the purposes of the surveys the Company—

(a) on being given reasonable notice (save in the case of emergency, when immediate access must be afforded) must afford reasonable access to the site of the specified works and to any land and existing works of the Company which may provide support for the canal as will or may be affected by the specified works; and

(b) as soon as reasonably practicable must supply the surveyor with all such information as the surveyor may reasonably require with regard to such land and existing works of the Company and to the specified works or the method of construction of the specified works.

13.  The surveyor must provide copies of a report of the surveys to both the Trust and the Company without unnecessary delay.

14.  Where, in the reasonable opinion of the Trust, the surveys show that the specified works are likely to cause detriment to the canal then, at the request of the Trust and at its own expense, the Company must take steps to remedy such detriment to the reasonable satisfaction of the Trust.

15.  The Company must not deposit any polluting material on, in or over the canal and must not without the consent of the Trust—

(a) deposit any other materials on, in or over the canal (other than materials comprised in a specified work); or

(b) regardless of anything in article 19 (discharge of water), discharge any water directly or indirectly into the canal.

16.  Any consent of the Trust required under paragraph 15 must not be unreasonably withheld and—

(a) is deemed to have been given if it is neither given nor refused within 28 days of the submission of the request for it; and

(b) may be given subject to such reasonable requirements as the Trust may make—

(i) in the case of a deposit, so as to ensure that the use of the canal is not obstructed or rendered less safe, and

(ii) in the case of a discharge, concerning the reimbursement by the Company of expenses incurred by the Trust in disposing of the water so discharged, being expenses which the Trust would not have incurred but for the discharge.

17.  In its application to the discharge of water into the canal, article 19(6) (discharge of water) has effect subject to the terms of any requirements attached to the consent under paragraph 16 and, where such discharge includes a deposit to which consent has been given under paragraph 15, to any requirements attached to that consent.

18.  If any canal work is abandoned, the Trust may by notice in writing require the Company to take such reasonable steps as may be specified in the notice to remove the work and (to such extent as the Trust reasonably requires) to restore the site to its former condition.

19.  If any canal work is in such condition that it is, or is likely to become, a danger to or to interfere with navigation, the Trust may by notice in writing require the Company 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 Company so elects, to remove the work and (to such extent as the Trust reasonably requires) to restore the site to its former condition.

20.  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 relevant canal or as to interfere with the rights of access or use of land adjacent to the relevant canal;

the Trust may include the non-canal work, or any part of it, in any notice under paragraph 19.

21.  If after such reasonable period as may be specified in a notice under paragraph 19 the Company 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 Trust may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing is recoverable from the Company.

22.  The Company must indemnify the Trust from all claims, demands, proceedings or damages, which may be made or given against, or recovered from the Trust by reason of any damage to the canal which is caused by the construction of any specified work or protective work or any act or omission of the Company, its contractors, agents or employees whilst engaged upon the work and from any costs reasonably incurred in making good such damage.

23.  The Trust must give to the Company reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand is to be made without the consent of the Company which, if it notifies the Trust that it desires to do so, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

24.  Nothing in paragraph 22 imposes any liability on the Company with respect to any damage to the extent that it is attributable to the act, neglect or default of the Trust, its officers, servants, contractors or agents but the fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the Trust, or to its satisfaction, or in accordance with a determination in accordance with the article 57 (arbitration), does not (in the absence of negligence on the part of the Trust, its officers, servants, contractors or agents) relieve the Company from any liability under the provisions of this Schedule.