16.—(1) For the protection of CRT the following provisions of this part of this Schedule, unless otherwise agreed in writing between Network Rail and CRT, have effect.
(2) In this part of this Schedule—
“car park” means the land forming part of plot 2 of the lands scheduled in the book of reference that consists of a car park;
“CRT” means the Canal & River Trust;
“CRT’s network” means CRT’s network of waterways;
“construction”, in relation to any specified work or protective work, includes–
the execution and placing of that work; and
any relaying, renewal, or maintenance of that work as may be carried out during the period of 24 months from the completion of that work; and “construct” and “constructed” have corresponding meanings;
“detriment” means any damage to the waterway or any other property of CRT and, without limitation on the scope of that meaning, includes—
any obstruction of, or interference with, or hindrance or danger to, navigation or to any use of the waterway (including towing paths);
the erosion of the bed or banks of the waterway, or the impairment of the stability of any works, lands or premises forming part of the waterway;
the deposit of materials or the siltation of the waterway so as to damage the waterway;
the pollution of the waterway;
any significant alteration in the water level of the waterway, or significant interference with the supply of water to it, or drainage of water from it;
any harm to the ecology of the waterway (including any adverse impact on any site of special scientific interest comprised in CRT’s network);
any interference with the exercise by any person of rights over CRT’s network;
“the engineer” means an engineer appointed by CRT for the purpose in question;
“plans” includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction) and programmes;
“practical completion” means practical completion of all of the specified work notwithstanding that items which would ordinarily be considered snagging items remain outstanding, and the expression “practically complete” and “practically completed” are construed accordingly
“protective work” means a work constructed under paragraph 21(3)(a);
“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 affect the waterway;
“towing path” means the towing path forming part of the waterway;
“the waterway” means the Worcester and Birmingham Canal, and includes any works, lands or premises belonging to CRT, or under its management or control, and held or used by CRT in connection with that canal.
17.—(1) Network Rail must not in the exercise of the powers conferred by this Order obstruct or interfere with pedestrian or vehicular access to the waterway unless such obstruction or interference with such access is with the consent of CRT but the temporary obstruction of the car park is deemed to be with the consent of CRT.
(2) Network Rail must not exercise any power conferred by this Order in such a way as to interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of CRT.
(3) Network Rail must not exercise the powers conferred article 14 (authority to survey and investigate land) or section 11(3) of the 1965 Act (power of entry for surveying land), in relation to the waterway unless such exercise is with the consent of CRT.
(4) Network Rail must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, as applied by Schedule 3 (footpaths to be stopped up), so as to divert any right of access to the waterway, but such right of access may be diverted with the consent of CRT.
(5) The consent of CRT under sub-paragraphs (1) to (4) must not be unreasonably withheld or delayed but may be given subject to reasonable terms and conditions which in the case of article 13 (discharge of water) may include conditions—
(a)specifying the maximum volume of water which may be discharged in any period; and
(b)authorising CRT on giving reasonable notice (except in an emergency, when CRT may require immediate suspension) to Network Rail to require Network Rail to suspend the discharge of water or reduce the flow of water where this is necessary by reason of any operational or environmental requirement of CRT.
18. Network Rail must not use any land or property of CRT forming part of the waterway (other than within Plots 2 or 3 of the lands referred to in the book of reference) for the passage or siting of vehicles, plant or machinery employed in the construction of the specified works other than—
(a)with the consent in writing of the engineer whose consent must not be unreasonably withheld; and
(b)subject to compliance with such reasonable requirements as the engineer may from time to time specify—
(i)for the prevention of detriment; or
(ii)in order to avoid or reduce any inconvenience to CRT, its officers and agents and all other persons lawfully on such land or property, but nothing in this paragraph applies in relation to anything done in accordance with any approval given by CRT under paragraph 21.
19. Where so required by the engineer Network Rail must to the reasonable satisfaction of the engineer fence off a specified work or a protective work or take such other steps as the engineer may require to be taken for the purpose of separating a specified work or a protective work from the waterway, whether on a temporary or permanent basis or both.
20.—(1) Before the commencement of the initial construction of any part of the specified works and again following practical completion of the specified works Network Rail must bear the reasonable cost of the carrying out by a qualified engineer (“the surveyor”), to be approved by CRT and Network Rail, of a survey including a dip-survey to measure the depth of the waterway (“the survey”) of so much of the waterway and of any land and existing works of Network Rail which may provide support for the waterway as will or may be affected by the specified works.
(2) For the purposes of the survey Network Rail must—
(a)on being given reasonable notice (save in case of emergency, when immediate access must be afforded) afford reasonable facilities to the surveyor for access to the site of the specified works and to any land and existing works of Network Rail which may provide support for the waterway as will or may be affected by the specified works; and
(b)supply the surveyor as soon as reasonable practicable with all such information as he may reasonably require with regard to such existing works of Network Rail and to the specified works or the method of their construction.
(3) The reasonable costs of the survey include the costs of any dewatering or reduction of the water level of any part of the waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey and the provisions of this part of this Schedule apply with all necessary modifications to any such dewatering or reduction in the water level as though the same were specified works.
(4) Copies of the survey must be provided to both CRT and Network Rail at no cost to CRT.
21.—(1) Network Rail must before commencing construction of any specified work comprising part of Work No. 1 of the authorised development including any temporary works supply to CRT proper and sufficient plans of that work and such further particulars available to it as CRT may within 14 days of the submission of the plans reasonably require for the approval of the engineer and must not commence such construction of a specified work until plans of that work have been approved in writing by the engineer or settled by arbitration.
(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed, and if within 30 days after such plans (including any other particulars reasonably required under sub-paragraph (1)) have been supplied to CRT the engineer has not intimated disapproval of those plans and the grounds of disapproval the engineer is deemed to have approved the plans as submitted.
(3) When signifying approval of the plans the engineer may specify on land held or controlled by CRT or Network Rail and subject to such works being authorised by the order or being development permitted by an Act of Parliament or general development order made under the 1990 Act —
(a)any protective work (whether temporary or permanent) which in the reasonable opinion of the engineer should be carried out before the commencement of a specified work to prevent detriment; and
(b)such other requirements as may be reasonably necessary to prevent detriment;
and such protective works are constructed by Network Rail or by CRT at Network Rail’s request with all reasonable dispatch and Network Rail must not commence the construction of a specified work until the engineer has notified Network Rail that the protective works have been completed to the engineer’s reasonable satisfaction not to be unreasonably withheld or delayed.
(4) In the event that Network Rail fails to complete the construction of, or part of, the specified works CRT may, if it is reasonably required in order to avoid detriment, construct any of the specified works, or part of such works, (together with any adjoining works) in order to complete the construction of, or part of, the specified works or make such works and Network Rail must reimburse CRT all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.
22. Without affecting its obligations under the provisions of this Part of this Schedule Network Rail must consult, collaborate and respond constructively to any approach, suggestion, proposal or initiative made by CRT on—
(a)the design and appearance of the specified works comprising Work No. 1, including the materials to be used for their construction; and
(b)the environmental effects of that work;
and must have regard to such views as may be expressed by CRT to the extent that these accord with the requirements of the local planning authority in response to such consultation pursuant in particular to the requirements imposed on CRT by section 22 (general environmental and recreational duties) of the British Waterways Act 1995(1) and to the interest of CRT in preserving and enhancing the environment of its waterways.
23. Network Rail must give to the engineer 30 days’ notice of its intention to commence the construction of any of the specified or protective works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable so that, in particular, CRT may where appropriate arrange for the publication of notices bringing those works to the attention of users of CRT’s network.
24.—(1) Any specified or protective works must, when commenced, be constructed—
(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under the provisions in paragraph 21 and with any requirements made under paragraph 21(3) and paragraph 22;
(b)under the supervision (if given) and to the reasonable satisfaction of the engineer;
(c)in such manner as to cause as little detriment as is reasonably practicable;
(d)in such manner as to cause as little inconvenience as is reasonably practicable to CRT, its officers and agents and all other persons lawfully using the waterways, except to the extent that temporary obstruction has otherwise been agreed by CRT.
(2) Nothing in this Order authorises Network Rail to make or maintain any permanent works in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which CRT is required by section 105(1)(b) and (2) (maintenance of waterways) of the Transport Act 1968(2) to maintain the waterway.
(3) Following the completion of the construction of the specified works Network Rail must restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of those works.
25. Network Rail must not in the course of constructing a specified work or a protective work or otherwise in connection therewith do or permit anything which may result in the pollution of the waterway or the deposit of materials therein and must take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph.
26.—(1) Network Rail on being given reasonable notice must—
(a)at all reasonable times and subject to any railway operational or safety requirements allow reasonable facilities to the engineer for access to a specified work during its construction; and
(b)supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.
(2) CRT on being given reasonable notice must—
(a)at all times afford reasonable facilities to Network Rail and its agents for access to any works carried out by CRT under this part of this Schedule during their construction; and
(b)supply Network Rail with such information as it may reasonably require with regard to such works or the method of constructing them and Network Rail must reimburse CRT’s reasonable costs in relation to the supply of such information.
27. If at any time after the completion of a specified work or a protective work, not being a work vested in CRT, CRT gives notice to Network Rail informing it that the state of maintenance of the work appears to be such that the work is causing or likely to cause detriment, Network Rail must, on receipt of such notice, take such steps as may be reasonably necessary to put the work in such state of maintenance as not to cause such detriment.
28. Network Rail must repay to CRT all fees, costs, charges and expenses reasonably incurred by CRT—
(a)in constructing any protective works under the provisions of paragraph 21(3)(a);
(b)in respect of the approval by the engineer of plans submitted by Network Rail and the supervision by the engineer of the construction or repair of a specified work and any protective works;
(c)in respect of the employment during the construction of the specified works or any protective works of any inspectors, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting any waterway and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works or any protective works; and
(d)in bringing the specified works or any protective works to the notice of users of CRT’s network.
29.—(1) If any detriment is caused by the construction or failure of the specified works or the protective works if carried out by Network Rail, Network Rail (if so required by CRT) must make good such detriment and must pay to CRT all reasonable expenses to which CRT may be put, and compensation for any loss which CRT may sustain, in making good or otherwise by reason of the detriment.
(2) Network Rail is responsible for and must make good to CRT all 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 CRT—
(a)by reason of the construction of a specified work or a protective work or the failure of such a work; or
(b)by reason of any act or omission of Network Rail or of any person in its employ or of its contractors or others whilst engaged upon the construction of a specified work or a protective work; and subject to sub-paragraph (4) Network Rail must effectively indemnify and hold harmless CRT from and against all claims and demands arising out of or in connection with any of the matters referred to in paragraphs (a) and (b).
(3) The fact that any act or thing may have been done by CRT on behalf of Network Rail or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision or in accordance with any directions or awards of an arbitrator does not (if it was done without negligence on the part of CRT or of any person in its employ or of its contractors or agents) excuse Network Rail from any liability under the provisions of this paragraph.
(4) CRT must give Network Rail reasonable notice of any such claim or demand as referred to in sub-paragraph (2) and no settlement or compromise of such a claim or demand is to be made without the prior consent of Network Rail.
30. Any difference arising between Network Rail and CRT 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 35 (arbitration).