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The Network Rail (Hope Valley Capacity) Order 2018

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Statutory Instruments

2018 No. 446

Transport And Works, England

Transport, England

The Network Rail (Hope Valley Capacity) Order 2018

Made

28th March 2018

Coming into force

18th April 2018

An application has been made to the Secretary of State in accordance with the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006(1) for an Order under sections 1 and 5 of the Transport and Works Act 1992(2) (“the 1992 Act).

The Secretary of State has caused an inquiry to be held for the purposes of the application under section 11 of the 1992 Act.

The Secretary of State, having considered the objections made and not withdrawn and the report of the person who held the inquiry, has determined to make an Order giving effect to the proposal comprised in the application with modifications which in the opinion of the Secretary of State do not make any substantial change in the proposals.

Notice of the Secretary of State’s determination was published in the London Gazette on 16th February 2018.

The Secretary of State, in exercise of the powers conferred by sections 1 and 5 of, and paragraphs 1 to 5, 7, 8, 10, 11 and 16 of Schedule 1 to, the 1992 Act, makes the following Order:

PART 1PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Network Rail (Hope Valley Capacity) Order 2018 and comes into force on 18th April 2018.

Interpretation

2.—(1) In this Order—

“the 1961 Act” means the Land Compensation Act 1961(3);

“the 1965 Act” means the Compulsory Purchase Act 1965(4);

“the 1980 Act” means the Highways Act 1980(5);

“the 1981 Act” means the Acquisition of Land Act 1981(6);

“the 1984 Act” means the Road Traffic Regulation Act 1984(7);

“the 1990 Act” means the Town and Country Planning Act 1990(8);

“the 1991 Act” means the New Roads and Street Works Act 1991(9);

“the 2003 Act” means the Communications Act 2003(10);

“address” includes any number or address used for the purposes of electronic transmission;

“authorised works” means the scheduled works and any other works authorised by this Order or any part of them;

“the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

“building” includes any structure or erection or any part of a building, structure or erection;

“carriageway” has the same meaning as in the 1980 Act;

“the deposited plans” means the plans certified by the Secretary of State as the deposited plans for the purposes of this Order;

“the deposited sections” means the sections certified by the Secretary of State as the deposited sections for the purposes of this Order;

“electronic transmission” means a communication transmitted—

(a)

by means of an electronic communications network; or

(b)

by other means but while in electronic form;

“footpath” and “footway” have the same meaning as in the 1980 Act;

“highway” and “highway authority” have the same meaning as in the 1980 Act;

“the limits of deviation” means the limits of deviation for the scheduled works shown on the deposited plans;

“the limits of land to be acquired or used” means the limits of land to be acquired or used shown on the deposited plans;

“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace, and “maintenance” is to be construed accordingly;

“Network Rail” means Network Rail Infrastructure Limited (Company registration number 02904587) whose registered office is at 1 Eversholt Street, London NW1 2DN;

“the Order limits” means the limits of deviation and the limits of land to be acquired or used;

“owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the 1981 Act(11);

“the scheduled works” means the works specified in Schedule 1 (scheduled works) or any part of them;

“street” includes part of a street;

“street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

“the traffic regulation plans” means the plans certified by the Secretary of State as the traffic regulation plans for the purposes of this Order;

“the tribunal” means the Lands Chamber of the Upper Tribunal; and

“watercourse” includes all rivers, streams, ditches, drains, canals, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain.

(2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in, on or under land or in the air-space above its surface and references in this Order to the imposition of restrictive covenants are references to the creation of rights over land which interfere with the interests or rights of another and are for the benefit of land which is acquired under this Order or is otherwise comprised in Network Rail’s railway undertaking.

(3) References in this Order to numbered plots are references to plot numbers on the deposited plans.

(4) All distances, directions and lengths referred to in this Order are approximate and distances between points on a scheduled work are taken to be measured along the scheduled work.

(5) References in this Order to points by letters, or letters and numbers are construed as references to points on the deposited plans.

Incorporation of the Railway Clauses Acts

3.—(1) The following provisions of the Railways Clauses Consolidation Act 1845(12) are incorporated in this Order—

  • section 58(13) (company to repair roads used by them), except for the words from “and if any question” to the end;

  • section 61 (company to make sufficient approaches and fences to highways crossing on the level);

  • section 68 (accommodation works by company);

  • section 71 (additional accommodation works by owners), except for the words “or directed by such justices to be made by the company” and “or, in case of difference, as shall be authorised by two justices”;

  • section 72 and 73 (supplementary provisions relating to accommodation works);

  • section 75(14) (omission to fasten gates);

  • section 77 (presumption that minerals excepted from acquisition of land);

  • sections 78 to 85E(15) and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by section 15 of the Mines (Working Facilities and Support) Act 1923(16);

  • section 103(17) (refusal to quit carriage at destination);

  • section 105 (carriage of dangerous goods on railway), except for the words from “and if any person” to “for every such offence”; and

  • section 145(18) (recovery of penalties).

(2) Section 12 (signals, watchmen etc.) of the Railways Clauses Act 1863(19) is incorporated in this Order.

(3) In those provisions, as incorporated in this Order—

“the company” means Network Rail;

“goods” includes any thing conveyed on the railway authorised to be constructed by this Order;

“lease” includes an agreement for a lease;

“prescribed”, in relation to any such provision means prescribed by this Order for the purposes of that provision;

“the railway” means any railway authorised to be constructed by this Order and any other authorised works;

“the special Act” means this Order; and

“toll” includes any rate or charge or other payment payable under this Order or any other enactment for any passenger or goods conveyed on any railway authorised to be constructed by this Order.

Application of the 1991 Act

4.—(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway are treated for the purposes of Part 3 (street works in England and Wales) of the 1991 Act as major transport works if—

(a)they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) (which defines what highway authority works are major highway works) of that Act; or

(b)they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64(20) (dual carriageways and roundabouts) of the 1980 Act.

(2) The following provisions of the 1991 Act do not apply in relation to any works executed under the powers conferred by this Order—

  • section 56 (directions as to timing);

  • section 56A (power to give directions as to placing of apparatus);

  • section 58 (restrictions following substantial road works);

  • section 73A (power to require undertaker to re-surface street);

  • section 73B (power to specify timing, etc., of re-surfacing);

  • section 73C (materials, workmanship and standard of re-surfacing);

  • section 78A (contributions to costs of re-surfacing by undertaker); and

  • Schedule 3A (restriction on works following substantial street works).

(3) The provisions of the 1991 Act mentioned in paragraph (4), together with other provisions of that Act, which apply in relation to the execution of street works, and any regulations made or code of practice issued or approved under those provisions, apply (with the necessary modifications) in relation to any stopping up, alteration or diversion of a street of a temporary nature by Network Rail under the powers conferred by article 9 (temporary stopping up of streets) and to the carrying out of works under article 8 (power to execute street works), whether or not the stopping up, alteration or diversion, or the carrying out of such works, constitutes street works within the meaning of that Act.

(4) The provisions of the 1991 Act(21) referred to in paragraph (3) are—

  • section 54(22) (advance notice of certain works), subject to paragraph (5);

  • section 55(23) (notice of starting date of works), subject to paragraph (5);

  • section 57(24) (notice of emergency works);

  • section 59(25) (general duty of street authority to co-ordinate works);

  • section 60 (general duty of undertakers to co-operate);

  • section 68 (facilities to be afforded to street authority);

  • section 69 (works likely to affect other apparatus in the street);

  • section 76 (liability for cost of temporary traffic regulation);

  • section 77 (liability for cost of use of alternative route); and

all such other provisions as apply for the purposes of the provisions mentioned above.

(5) Sections 54 and 55 of the 1991 Act as applied by paragraph (3) have effect as if references in section 57 of that Act to emergency works were a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

(6) Nothing in article 11 (construction and maintenance of altered streets)—

(a)prejudice the operation of section 87 (prospectively maintainable highways) of the 1991 Act, and Network Rail is not by reason of any duty under that article to maintain a street to be taken to be a street authority in relation to that street for the purposes of Part 3 of that Act; or

(b)has effect in relation to street works with regard to which the provisions of Part 3 of the 1991 Act apply.

Disapplication of legislative provisions

5.—(1) The following provisions do not apply in relation to any works executed under the powers conferred by this Order—

(a)regulation 12(1)(a) (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(26) in relation to the carrying on of a relevant flood risk activity for the purposes of the works;

(b)the provisions of any byelaws made under, or having effect as if made under, paragraph 5 of Schedule 25 (byelaws for flood defence and drainage purposes) to the Water Resources Act 1991(27), which require consent or approval for the carrying out of the works;

(c)section 23 (prohibition on obstacles etc. in watercourses) of the Land Drainage Act 1991(28); and

(d)the provision of any byelaws made under, or having effect as if made under, section 66 (powers to make byelaws) of the Land Drainage Act 1991, which require consent or approval for the carrying out of the works.

(2) In article 5(1)(a) “relevant flood risk activity” means an activity within paragraph 3(1)(a), (b) or (c) of Schedule 25 (flood risk activities and excluded flood risk activities) to the Environmental Permitting (England and Wales) Regulations 2016.

PART 2WORKS PROVISIONS

Principal powers

Power to construct and maintain works

6.—(1) Network Rail may construct and maintain the scheduled works.

(2) Subject to article 7 (power to deviate), the scheduled works may only be constructed in the lines or situations shown on the deposited plans and in accordance with the levels shown on the deposited sections.

(3) Network Rail may on the land specified in columns (1) and (2) of Schedule 2 (acquisition of certain lands for ancillary works) carry out and maintain any works specified in relation to that land in column (3) of that Schedule with all necessary works and conveniences in connection with those works.

(4) Network Rail may, on the land specified in article 21(1) (cases where powers of acquisition limited to ground anchor rights) carry out and maintain any works specified in relation to that land in article 21(5)(a) with all necessary works and conveniences in connection with those works.

(5) Subject to paragraph (7), Network Rail may carry out and maintain such of the following works as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the scheduled works, namely—

(a)construction of electrical equipment, signalling and permanent way works;

(b)buildings, yards, machinery, plant, apparatus, track drainage works, fencing, platform shelters, and other works and conveniences;

(c)approaches, ramps, lifts, stairs, passages, means of access, gates, shafts and stagings including temporary means of access from a highway to adjoining land;

(d)embankments, cuttings, aprons, abutments, retaining walls, wing walls and culverts;

(e)works to alter or remove any structure erected upon any highway or adjoining land;

(f)works to alter the position of apparatus, including mains, sewers, drains, cables and street furniture;

(g)works to alter the course of, or otherwise interfere with, a watercourse other than a navigable watercourse;

(h)landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the scheduled works; and

(i)works for the benefit or protection of premises affected by the scheduled works.

(6) Subject to paragraph (7), Network Rail may carry out such other works (of whatever nature) as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the scheduled works, other than works that would interfere with a navigable watercourse.

(7) Paragraphs (5) and (6) only authorise the carrying out or maintenance of works outside the limits of deviation if such works are carried out on—

(a)land specified in columns (1) and (2) of Schedule 2 (acquisition of certain lands for ancillary works) for the purpose specified in relation to that land in column (3) of that Schedule; and

(b)land specified in columns (1) and (2) of Schedule 8 (land of which temporary possession may be taken) for the purposes specified in relation to that land in column (3) of that Schedule, relating to the scheduled works specified in column (4) of that Schedule.

Power to deviate

7.  In constructing or maintaining any of the scheduled works, Network Rail may—

(a)deviate laterally from the lines or situations shown on the deposited plans to the extent of the limits of deviation for that work; and

(b)deviate vertically from the levels shown on the deposited sections—

(i)to any extent not exceeding 3 metres upwards; or

(ii)to any extent downwards as may be found to be necessary or convenient.

Streets

Power to execute street works

8.—(1) Network Rail may, for the purposes of the authorised works, enter upon so much of any of the streets specified in Schedule 3 (streets subject to street works) as are within the Order limits and may—

(a)break up or open the street, or any sewer, drain or tunnel under it, or tunnel or bore under the street;

(b)place apparatus in the street;

(c)maintain apparatus in the street or change its position; and

(d)execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b) and (c).

(2) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Temporary stopping up of streets

9.—(1) Network Rail, during and for the purposes of the execution of the authorised works, may temporarily stop up, alter or divert any street and may for any reasonable time—

(a)divert the traffic from the street; and

(b)subject to paragraph (3), prevent all persons from passing along the street.

(2) Without limitation on the scope of paragraph (1), Network Rail may use any street stopped up under the powers conferred by this article as a temporary working site.

(3) Network Rail must provide reasonable access for pedestrians going to or from premises abutting a street affected by the exercise of the powers conferred by this article if there would otherwise be no such access.

(4) Without limitation on the scope of paragraph (1), Network Rail may exercise the powers conferred by this article in relation to the streets specified in columns (1) and (2) of Schedule 4 (streets to be temporarily stopped up) to the extent specified, in column (3) of that Schedule.

(5) Network Rail must not exercise the powers conferred by this article—

(a)in relation to any street specified as mentioned in paragraph (4) without first consulting the street authority; and

(b)in relation to any other street without the consent of the street authority which may attach reasonable conditions to any consent, but such consent must not be unreasonably withheld.

(6) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(7) If within 28 days of receiving an application for consent under paragraph (5)(b) a street authority fails to notify Network Rail of its decision or refuses consent without giving any grounds for its refusal that street authority is deemed to have granted consent.

Access to works

10.—(1) Network Rail may, for the purposes of the authorised works, with the approval of the highway authority, such approval not to be unreasonably withheld, form and lay out means of access or improve existing means of access, at such locations within the Order limits as Network Rail reasonably requires for the purposes of the authorised works.

(2) If a highway authority fails to notify Network Rail of its decision within 28 days of receiving an application for approval, under paragraph (1), the highway authority is deemed to have granted approval.

Construction and maintenance of altered streets

11.—(1) Where a street is altered under this Order, the altered part of the street must, when completed to the reasonable satisfaction of the street authority unless otherwise agreed with the street authority, be maintained by and at the expense of Network Rail for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(2) Paragraph (1) does not apply in relation to the structure of any bridge or tunnel carrying a street over or under any railway of Network Rail.

(3) In any action against Network Rail in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (without affecting any other defence or the application of the law relating to contributory negligence) to prove that Network Rail had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

(4) For the purposes of a defence under paragraph (3), the court must in particular have regard to the following matters—

(a)the character of the street and the traffic which was reasonably to be expected to use it;

(b)the standard of maintenance appropriate for a street of that character and used by such traffic;

(c)the state of repair in which a reasonable person would have expected to find the street;

(d)whether Network Rail knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and

(e)where Network Rail could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that Network Rail had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that Network Rail had given the competent person proper instructions with regard to the maintenance of the street and that the competent person had carried out those instructions.

Agreements with street authorities

12.—(1) A street authority and Network Rail may enter into agreements with respect to—

(a)any stopping up, alteration or diversion of a street under the powers conferred by this Order; or

(b)the execution in the street of any of the works referred to in article 8(1) (power to execute street works).

(2) Such an agreement may, without limitation on the scope of paragraph (1)—

(a)make provision for the street authority to carry out any function under this Order which relates to the street in question; and

(b)contain such terms as to payment and otherwise as the parties consider appropriate.

Replacement and closure of footpath level crossing

13.—(1) Subject to paragraph (3), the footpath level crossing specified in columns (1) and (2) of Schedule 5 (replacement and closure of footpath level crossing) is stopped up and discontinued.

(2) Subject to paragraph (3), upon the stopping up and discontinuance of the footpath level crossing referred to in paragraph (1), any right of way over the part of the footpath specified in relation to it in column (3) of Schedule 5 is extinguished.

(3) Paragraphs (1) and (2) are not to take effect with respect to the footpath specified in columns (1), (2) and (3) of Schedule 5 until the replacement footpath specified in relation to it in column (4) of that Schedule has been provided to the reasonable satisfaction of the street authority and is open for use.

(4) On completion of the construction of the replacement footpath specified in column (4) of Schedule 5 Network Rail must submit a written request to the street authority for written approval for the replacement footpath to be open for use which must not be unreasonably withheld and which must be given within 28 days of the street authority receiving a request for approval under this paragraph. If the street authority fails to notify Network Rail of a decision, in writing, by the expiry of 28 days from receiving a request for approval, the street authority is deemed to have granted approval.

(5) If, in response to a request under paragraph (4), the street authority notifies Network Rail that it does not give its approval for the replacement footpath to be open for use, the matter is to be determined in accordance with article 43 (arbitration).

(6) In providing the replacement footpath specified in column (4) of Schedule 5, Network Rail may within the Order limits erect barriers and signs and carry out or provide any ancillary works or conveniences, subject to the agreement of the highway authority, such agreement not to be unreasonably withheld.

(7) Any person who suffers loss by the extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(8) The replacement footpath specified in column (4) of Schedule 5 provided under this article is to be a public footpath and, subject to paragraphs (9) to (12), in relation to that replacement footpath, section 28(29) (compensation for loss caused by public path creation order) of the 1980 Act applies as if the right of way over the replacement footpath had been created by a public path creation order.

(9) In its application by virtue of paragraph (8), section 28 of the 1980 Act has effect with the modifications mentioned in paragraphs (10) to (12).

(10) In subsection (1), for “the authority by whom the order was made” substitute “Network Rail Infrastructure Limited”.

(11) For subsection (2), substitute—

(2) A claim for compensation under this section is to be made to Network Rail Infrastructure Limited in writing within 6 months from the date the replacement footpath specified in column (4) of Schedule 5 to the Network Rail (Hope Valley Capacity) Order 2018(30) is open for use and is to be served on Network Rail Infrastructure Limited by delivering it at, or by sending it by pre-paid post to, the registered office of Network Rail Infrastructure Limited.

(12) Subsection (3) is omitted.

(13) For the purposes of paragraphs (8) to (12), section 307 (disputes as to compensation which are to be determined by Upper Tribunal and related provisions) of the 1980 Act, in its application to section 28 of the 1980 Act by virtue of section 307(1), has effect as if in subsection (2) for “the authority from whom the compensation in question is claimed” the words “Network Rail Infrastructure Limited” were substituted.

Supplemental powers

Discharge of water

14.—(1) Network Rail may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, public sewer or drain.

(2) Any dispute arising from the exercise of the powers in paragraph (1) to connect to or use a public sewer or drain is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991(31).

(3) Network Rail must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) Network Rail must not make any opening into any public sewer or drain except—

(a)in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

(b)where that person has been given the opportunity to supervise the making of the opening.

(5) Network Rail must not, in the exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) Network Rail must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(32).

(8) If a person who receives an application for consent or approval fails to notify Network Rail of a decision within 28 days of receiving an application for consent under paragraph (3) or approval under paragraph (4)(a) that person is deemed to have granted consent or given approval, as the case maybe.

(9) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, Environment Agency, a National Park Authority, an internal drainage board or a local authority; and

(b)other expressions, excluding watercourses, used both in this article and in the Water Resources Act 1991(33) have the same meaning as in that Act.

Protective works to buildings

15.—(1) Subject to the following provisions of this article, Network Rail may at its own expense carry out such protective works to any building lying within the Order limits as Network Rail considers to be necessary or expedient.

(2) Protective works may be carried out—

(a)at any time before or during the construction in the vicinity of the building of any part of the authorised works; or

(b)after the completion of the construction of that part of the authorised works in the vicinity of the building at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised works is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised Network Rail may (subject to paragraph (5)) enter and survey any building falling within paragraph (1) and any land within its curtilage.

(4) For the purpose of carrying out protective works under this article to a building Network Rail may (subject to paragraphs (5) and (6))—

(a)enter the building and any land within its curtilage; and

(b)where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a)a right under paragraph (1) to carry out protective works to a building;

(b)a right under paragraph (3) to enter a building and land within its curtilage;

(c)a right under paragraph (4)(a) to enter a building and land within its curtilage; or

(d)a right under paragraph (4)(b) to enter land,

Network Rail must, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days’ notice of its intention to exercise that right and, in a case falling within subparagraph (a) or (c), specifying the protective works proposed to be carried out.

(6) Where a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 43 (arbitration).

(7) Network Rail must compensate the owners and occupiers of any building or land in relation to which the powers conferred by this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8) Where—

(a)protective works are carried out under this article to a building; and

(b)within the period of 5 years beginning with the day on which the part of the authorised works constructed in the vicinity of the building is first opened for use it appears that the protective works are inadequate to protect the building against damage caused by the construction or operation of that part of the authorised works,

Network Rail must compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Without affecting article 42 (no double recovery) nothing in this article relieves Network Rail from any liability to pay compensation under section 10(2)(34) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, under Part 1 of the 1961 Act.

(11) In this article “protective works” in relation to a building means—

(a)underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, maintenance or operation of the authorised works;

(b)any works the purpose of which is to remedy any damage which has been caused to the building by the construction, maintenance or operation of the authorised works; and

(c)any works the purpose of which is to secure the safe operation of the authorised works or to prevent or minimise the risk of such operation being disrupted.

Power to survey and investigate land

16.—(1) Network Rail may for the purposes of this Order—

(a)survey or investigate any land shown within the Order limits;

(b)without limitation on the scope of sub-paragraph (a), make trial holes in such positions as Network Rail thinks fit on the land to investigate the nature of the surface layer and subsoil and remove soil samples;

(c)without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land;

(d)place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes; and

(e)enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (d).

(2) No land may be entered or equipment placed or left on or removed from the land under paragraph (1), unless at least 7 days’ notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of Network Rail—

(a)must, if so required, before or after entering the land produce written evidence of authority to do so; and

(b)may take onto the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes are to be made under this article—

(a)in a carriageway or footway without the consent of the highway authority; or

(b)in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld.

(5) Network Rail must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) Nothing in this article overrides the need to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979(35).

(7) If either a highway authority or street authority fails to notify Network Rail of its decision within 14 days of receiving an application for consent—

(a)under paragraph 4(a) in the case of a highway authority; or

(b)under paragraph 4(b) in the case of a street authority,

that authority is deemed to have granted consent.

PART 3ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land

17.—(1) Network Rail may acquire compulsorily—

(a)so much of the land shown on the deposited plans within the limits of deviation as land to be acquired compulsorily and described in the book of reference as may be required for the purposes of the authorised works; and

(b)so much of the land specified in columns (1) and (2) of Schedule 2 (acquisition of certain lands for ancillary works) (being land shown on the deposited plans and described in the book of reference) as may be required for the purpose specified in relation to that land in column (3) of that Schedule,

and may use any land so acquired for those purposes, or for any other purposes that are ancillary to its railway undertaking.

(2) This article is subject to article 20 (power to acquire new rights), article 21 (cases where powers of acquisition limited to ground anchor rights) and article 24 (temporary use of land for construction of works).

Application of Part 1 of the 1965 Act

18.—(1) Part 1 of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, applies to the acquisition of land under this Order—

(a)as it applies to a compulsory purchase to which the 1981 Act applies; and

(b)as if this Order were a compulsory purchase order under that Act.

(2) Part 1 of the 1965 Act, as applied by paragraph (1), has effect with the following modifications.

(3) Omit section 4 (which provides a time limit for compulsory purchase of land).

(4) In section 4A(1)(36) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to the High Court in respect of compulsory purchase order), the three year period mentioned in section 4”, substitute “section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the five year period mentioned in article 29 (time limit for exercise of powers of acquisition) of the Network Rail (Hope Valley Capacity) Order 2018(37)”.

(5) In section 11(1B)(38) (powers of entry) in a case where the notice to treat relates only to the acquisition of an easement or other right over land, for “3 months” substitute “1 month”.

(6) In section 11A(39) (powers of entry: further notices of entry)—

(a)in subsection (1)(a), after “land” insert “under that provision”;

(b)in subsection (2), after “land” insert “under that provision”.

(7) In section 22(2) (expiry of time limit for exercise of compulsory purchase power not to affect acquisition of interests omitted from purchase), for “section 4 of this Act” substitute “article 29 (time limit for exercise of powers of acquisition) of the Network Rail (Hope Valley Capacity) Order 2018(40)”.

(8) In Schedule 2A(41) (counter-notice requiring purchase of land not in notice to treat)—

(a)for paragraphs 1(2) and 14(2) substitute—

(2) But see articles 21(4) (cases where powers of acquisition limited to ground anchor rights) and 22(3) (power to acquire subsoil or airspace only) of the Network Rail (Hope Valley Capacity) Order 2018, which exclude acquisition with respect to ground anchor rights only and the acquisition of subsoil or airspace only from this Schedule.; and

(b)after paragraph 29, insert—

PART 4INTERPRETATION

30.  In this Schedule, references to entering on and taking possession of land do not include doing so under article 15 (protective works to buildings), 24 (temporary use of land for construction of works) or 25 (temporary use of land for maintenance of works) of the Network Rail (Hope Valley Capacity) Order 2018.

Application of the Compulsory Purchase (Vesting Declarations) Act 1981

19.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(42) applies as if this Order were a compulsory purchase order.

(2) The Compulsory Purchase (Vesting Declarations) Act 1981, as applied by paragraph (1), has effect with the following modifications.

(3) In section 5 (earliest date for execution of declaration), in subsection (2), omit the words from “, and this subsection” to the end.

(4) Omit section 5A(43) (time limit for general vesting declaration).

(5) In section 5B(44) (extension of time limit during challenge) for “section 23 of the Acquisition of Land Act 1981 (application to High Court in respect of compulsory purchase order), the three year period mentioned in section 5A” substitute “section 22 of the Transport and Works Act 1992 (validity of orders under section 1 or 3), the five year period mentioned in article 29 (time limit for exercise of powers of acquisition) of the Network Rail (Hope Valley Capacity) Order 2018”.

(6) In section 6(45) (notices after execution of declaration), in subsection (1)(b), for “section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981” substitute “section 14A of the Transport and Works Act 1992”.

(7) In section 7(46) (constructive notice to treat) in subsection (1)(a), omit “(as modified by section 4 of the Acquisition of Land Act 1981)”.

(8) In Schedule A1(47) (counter-notice requiring purchase of land not in general vesting declaration) for paragraph 1(2) substitute—

(2) But see articles 21(4) (cases where powers of acquisition limited to ground anchor rights) and 22(3) (power to acquire subsoil or airspace only) of the Network Rail (Hope Valley Capacity) Order 2018, which exclude acquisition with respect to ground anchor rights only and the acquisition of subsoil or airspace only from this Schedule.; and

(9) References to the 1965 Act are construed as references to that Act as applied to the acquisition of land under article 17 (power to acquire land).

Power to acquire new rights

20.—(1) Network Rail may acquire compulsorily such easements or other rights over any land referred to in paragraphs 1(a) or (b) of article 17 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.

(2) Network Rail may impose restrictive covenants affecting any land referred to in article 21(1) (cases where powers of acquisition limited to ground anchor rights) as may be required for the purposes referred to in article 21(6).

(3) In the case of the land specified in Schedule 7 (acquisition of new rights only) Network Rail’s powers of compulsory acquisition are limited to the acquisition of such new rights as may be required for the purpose specified in relation to that land in column (3) of that Schedule.

(4) Subject to Schedule 2A (counter-notice requiring purchase of land) to the 1965 Act (as substituted by paragraph 5(8) of Schedule 6 (modification of compensation and compulsory purchase enactments for creation or imposition of new rights)) where Network Rail acquires a right over land or the benefit of a restrictive covenant under paragraph (1), paragraph (3), article 21(2) or article 21(6) Network Rail is not required to acquire a greater interest in that land.

(5) Schedule 6 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article or article 21(2) of a right over land by the creation of a new right or the imposition of a restrictive covenant under article 21(6).

(6) In any case where the acquisition of new rights under paragraph (1) is required for the purpose of diverting, replacing or protecting apparatus of an undertaker Network Rail may, with the consent of the Secretary of State, transfer the power to acquire such rights to the undertaker in question.

(7) The exercise by an undertaker of any power in accordance with a transfer under paragraph (6) is subject to the same restrictions, liabilities and obligations as would apply under this Order if that power were exercised by Network Rail.

(8) In paragraphs (6) and (7) “undertaker” means—

(a)any person who is a statutory undertaker for the purposes of the 1990 Act;

(b)any public communications provider within the meaning of section 15(1) of the 2003 Act; and

(c)the owners of the oil pipeline situated within the plots numbered 3, 3a, 3b, 12, 13, 14, 14a, 15, 15a, 16, 17, 17a, 18a, 20, 20a, 21, 21a, 22, 22a, 23, 23a, and 23b in the County of Derbyshire, Peak District National Park.

Cases where powers of acquisition limited to ground anchor rights

21.—(1) This article applies to—

(a)the plots numbered 5, 7, 9 and 12 in the County of Derbyshire, Peak District National Park; and

(b)the plots numbered 42, 43, 44 and 45 in the City of Sheffield.

(2) Network Rail’s powers of compulsory acquisition under article 17 (power to acquire land) as respects the land referred to in paragraph (1) are limited to the acquisition of ground anchor rights in the subsoil of the land and the imposition of restrictive or other covenants under paragraph (6).

(3) Where Network Rail acquires ground anchor rights in the subsoil of land to which this article applies or imposes a covenant under paragraph (6) affecting the land, it is not required to acquire a greater interest in the land or any other interest in any part of it.

(4) The following do not apply in connection with the exercise of the power under paragraph (2) in relation to ground anchor rights or under paragraph (6) in relation to the imposition of restrictive or other covenants—

(a)Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

(b)Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the Compulsory Purchase (Vesting Declarations) Act 1981; and

(c)section 153(4A) (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

(5) In this article “ground anchor rights” means—

(a)rights to insert ground anchors or soil nails into the subsoil, or to carry out other subsoil works, for the purpose of strengthening and stabilising Work No. 2, Work No. 3 and Work No. 6; and

(b)rights to maintain the ground anchors, soil nails or other subsoil works referred to in sub-paragraph (a).

(6) In addition to acquiring ground anchor rights over the land referred to in paragraph (1), Network Rail may impose such restrictive or other covenants affecting the land as may be required for the purposes of maintaining or protecting the ground anchors, soil nails or other subsoil works referred to in paragraph (5)(a).

Power to acquire subsoil or airspace only

22.—(1) Network Rail may acquire compulsorily so much of, or such rights in, the subsoil of or the airspace over the land referred to in paragraph (1)(a) or (b) of article 17 (power to acquire land) as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where Network Rail acquires any part of, or rights in, the subsoil of or the airspace over land under paragraph (1), Network Rail is not required to acquire an interest in any other part of the land.

(3) The following do not apply in connection with the exercise of the power under paragraph (1) in relation to subsoil or airspace only—

(a)Schedule 2A (counter-notice requiring purchase of land not in notice to treat) to the 1965 Act;

(b)Schedule A1 (counter-notice requiring purchase of land not in general vesting declaration) to the Compulsory Purchase (Vesting Declarations) Act 1981; and

(c)section 153(4A) (blighted land: proposed acquisition of part interest; material detriment test) of the 1990 Act.

(4) Paragraphs (2) and (3) are to be disregarded where Network Rail acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory or airspace above a house, building or manufactory.

Rights under or over streets

23.—(1) Network Rail may enter upon and appropriate so much of the subsoil of, or airspace over, any street within the Order limits as may be required for the purposes of the authorised works and may use the subsoil or airspace for those purposes or any other purpose ancillary to its railway undertaking.

(2) Subject to paragraph (4), the power under paragraph (1) may be exercised in relation to a street without Network Rail being required to acquire any part of the street or any easement or right in the street.

(3) Subject to paragraph (5), any person who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without Network Rail acquiring any part of that person’s interest in the land, and who suffers loss by the exercise of that power, is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) Paragraph (2) does not apply in relation to—

(a)any subway or underground building; or

(b)any cellar, vault, arch or other construction in, on or under a street which forms part of a building fronting onto the street.

(5) Compensation is not payable under paragraph (3) to any person who is an undertaker to whom section 85 (sharing of cost of necessary measures) of the 1991 Act applies in respect of measures of which the allowable costs are to be borne in accordance with that section.

Temporary Possession of Land

Temporary use of land for construction of works

24.—(1) Network Rail may, in connection with the carrying out of the authorised works—

(a)enter upon and take temporary possession of—

(i)the land specified in columns (1) and (2) of Schedule 8 (land of which temporary possession may be taken) for the purpose specified in relation to that land in column (3) of that Schedule relating to the authorised works (or any of those works) specified in column (4) of that Schedule; and

(ii)any other land within the Order limits in respect of which no notice of entry has been served under section 11(48) (powers of entry) of the 1965 Act (other than in connection with the acquisition of rights only) and no declaration has been made under section 4(49) (execution of declaration) of the Compulsory Purchase (Vesting Declarations) Act 1981;

(b)remove any buildings and vegetation from that land;

(c)construct temporary works (including the provision of means of access) and buildings on that land;

(d)temporarily occupy and use airspace for the purposes of the operation of a crane in connection with the construction of the authorised works; and

(e)construct any permanent works specified in relation to that land in column (3) of Schedule 8 or any other permanent mitigation works.

(2) Not less than 14 days before entering upon and taking temporary possession of land under this article Network Rail must serve notice of the intended entry on the owners and occupiers of the land.

(3) Network Rail may not, without the agreement of the owners of the land, remain in possession of any land under this article—

(a)in the case of land specified in columns (1) and (2) of Schedule 8, after the end of the period of one year beginning with the date of completion of the work specified in relation to that land in column (4) of Schedule 8; or

(b)in the case of land referred to in paragraph (1)(a)(ii), after the end of the period of one year beginning with the date of completion of the work for which temporary possession of the land was taken unless Network Rail has, before the end of that period, served a notice of entry under section 11 of the 1965 Act or made a declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981.

(4) Before giving up possession of land of which temporary possession has been taken under this article, Network Rail must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land, but Network Rail is not required to—

(a)replace a building removed under this article; or

(b)restore the land on which any works have been constructed under paragraph 1(e).

(5) Network Rail must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(7) Without affecting article 42 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2)(50) (further provisions as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).

(8) The powers of compulsory acquisition of land conferred by this Order do not apply in relation to the land referred to in paragraph (1)(a)(i) except that Network Rail is not precluded over any part of that land, from—

(a)acquiring new rights under article 20 (power to acquire new rights); or

(b)acquiring ground anchor rights or imposing restrictive covenants under article 21 (cases where powers of acquisition limited to ground anchor rights).

(9) Where Network Rail takes possession of land under this article, Network Rail is not required to acquire the land or any interest in it.

(10) Section 13(51) (refusal to give possession to acquiring authority) of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 18(1) (application of Part 1 of the 1965 Act).

Temporary use of land for maintenance of works

25.—(1) Subject to paragraph (2), at any time during the maintenance period relating to any of the scheduled works, Network Rail may—

(a)enter upon and take temporary possession of any land within the Order limits if such possession is reasonably required for the purpose of maintaining the work or any ancillary works connected with it; and

(b)construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) does not authorise Network Rail to take temporary possession of—

(a)any house or garden belonging to a house; or

(b)any building (other than a house) if it is for the time being occupied.

(3) Not less than 28 days before entering upon and taking temporary possession of land under this article Network Rail must serve notice of the intended entry on the owners and occupiers of the land.

(4) Network Rail may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance of works for which possession of the land was taken.

(5) Before giving up possession of land of which temporary possession has been taken under this article, Network Rail must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

(6) Network Rail must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(7) Any dispute as to a person’s entitlement to compensation under paragraph (6), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(8) Without affecting article 42 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2) (further provisions as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6).

(9) Where Network Rail takes possession of land under this article, Network Rail is not required to acquire the land or any interest in it.

(10) Section 13 of the 1965 Act applies to the temporary use of land under this article to the same extent as it applies to the acquisition of land under this Order by virtue of article 18(1) (application of Part 1 of the 1965 Act).

(11) In this article “the maintenance period”, in relation to a scheduled work, means the period of 5 years beginning with the date on which the work is opened for use.

Compensation

Disregard of certain interests and improvements

26.—(1) In assessing the compensation payable to any person on the acquisition from that person of any land under this Order, the tribunal must not take into account—

(a)any interest in land; or

(b)any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.

Set-off for enhancement in value of retained land

27.—(1) In assessing the compensation payable to any person in respect of the acquisition from that person under this Order of any land (including the subsoil) the tribunal must set off against the value of the land so acquired any increase in value of any contiguous or adjacent land belonging to that person in the same capacity which will accrue to that person by reason of the construction of the authorised works.

(2) In assessing the compensation payable to any person in respect of the acquisition from that person of any new rights over land (including the subsoil), or the imposition of restrictive covenants, under this Order, the tribunal must set off against the value of the rights so acquired or restrictive covenants imposed—

(a)any increase in the value of the land over which the new rights are required or restrictive covenants are imposed; and

(b)any increase in value of any contiguous or adjacent land belonging to that person in the same capacity,

which will accrue to that person by reason of the construction of the authorised works.

(3) The 1961 Act has effect, subject to paragraphs (1) and (2), as if this Order were a local enactment for the purposes of that Act.

Supplementary

Extinction or suspension of private rights of way

28.—(1) Subject to the provisions of this article all private rights of way over land subject to compulsory acquisition under this Order are extinguished—

(a)as from the date of acquisition of the land by Network Rail, whether compulsorily or by agreement; or

(b)on the date of entry on the land by Network Rail under section 11(1)(52) (powers of entry) of the 1965 Act,

whichever is the sooner.

(2) Subject to the provisions of this article in respect of land owned by Network Rail and required for the purposes of this Order all private rights of way are extinguished on the appropriation of the land for any of those purposes by Network Rail.

(3) Subject to the provisions of this article, all private rights of way over land subject to the compulsory acquisition of rights or the imposition of restrictive covenants under this Order are extinguished in so far as their continuance would be inconsistent with the exercise of the right or the burden of the restrictive covenant—

(a)as from the date of the acquisition of the right or the imposition of the restrictive covenant by Network Rail, whether compulsorily or by agreement; or

(b)on the date of entry on the land by Network Rail under section 11(1) of the 1965 Act in pursuance of the right,

whichever is the sooner.

(4) Subject to the provisions of this article all private rights of way over land of which Network Rail takes temporary possession under this Order are suspended and unenforceable for as long as Network Rail remains in lawful possession of the land.

(5) Subject to paragraph (7), any person who suffers loss by the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) This article does not apply in relation to any right of way to which section 271 or 272 (extinguishment of rights of statutory undertakers etc.) of the 1990 Act(53) applies.

(7) Paragraphs (1), (2), (3) and (4) have effect subject to—

(a)any notice given by Network Rail before the completion of the acquisition of the land, Network Rail’s appropriation of it, Network Rail’s entry onto it or Network Rail taking temporary possession of it that any or all of those paragraphs do not apply to any right of way specified in the notice; and

(b)any agreement made (whether before or after any of the events mentioned in sub-paragraph (a) and before or after the coming into force of this Order) which makes reference to this article between Network Rail and the person in or to whom the right of way in question is vested or belongs.

(8) If any such agreement as is mentioned in sub-paragraph (7)(b) which is expressed to have effect also for the benefit of those deriving title from or under the person in or to whom the right of way in question is vested or belongs, is effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

Time limit for exercise of powers of acquisition

29.—(1) After the end of the period of 5 years beginning with the day on which this Order comes into force—

(a)no notice to treat is to be served under Part 1 of the 1965 Act as applied to the acquisition of land by article 18 (application of Part 1 of the 1965 Act); and

(b)no declaration is to be executed under section 4 (execution of declaration) of the Compulsory Purchase (Vesting Declarations) Act 1981 as applied by article 19 (application of the Compulsory Purchase (Vesting Declarations) Act 1981).

(2) The powers conferred by article 24 (temporary use of land for construction of works) cease at the end of the period referred to in paragraph (1), except that nothing in this paragraph prevents Network Rail remaining in possession of land after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART 4MISCELLANEOUS AND GENERAL

Defence to proceedings in respect of statutory nuisance

30.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisances) of the Environmental Protection Act 1990(54) in relation to a nuisance falling within paragraph (g) of section 79(1)(55) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance), no order is to be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows—

(a)that the nuisance relates to premises used by Network Rail for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to authorised works and that the nuisance is attributable to the carrying out of authorised works which are being carried out in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61(56) (prior consent for work on construction sites) or section 65(57) (noise exceeding registered level), of the Control of Pollution Act 1974(58); or

(b)that the nuisance is a consequence of the operation of the authorised works and that it cannot reasonably be avoided.

(2) The following provisions of the Control of Pollution Act 1974—

(a)section 61(9); and

(b)section 65(8),

do not apply where the consent relates to the use of premises by Network Rail for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.

(3) The provisions of this article do not affect the application to the authorised works of section 122 (statutory authority as a defence to actions in nuisance, etc.) of the Railways Act 1993(59) or any rule of common law having similar effect.

Planning permission

31.  Planning permission which is deemed by a direction under section 90(2A)(60) (development with government authorisation) of the 1990 Act to be granted in relation to the authorised works is to be treated as specific planning permission for the purposes of section 264(3)(a) (cases in which land is to be treated as operational land of the purposes of that Act) of that Act.

Power to lop trees overhanging the authorised works

32.—(1) Network Rail may fell or lop any tree or shrub near any part of the authorised works, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

(a)from obstructing or interfering with the construction, maintenance or operation of the authorised works or any apparatus used on the authorised works; or

(b)from constituting a danger to passengers or other persons using the authorised works.

(2) In exercising the powers conferred by paragraph (1), Network Rail must not cause unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from the exercise of those powers.

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined under Part 1 of the 1961 Act.

Power to operate and use railway

33.—(1) Network Rail may operate and use the railway and other authorised works as a system, or part of a system, of transport for the carriage of passengers and goods.

(2) Nothing in this Order, or in any enactment incorporated with or applied by this Order, affects the operation of Part 1 (the provision of railway services) of the Railways Act 1993(61).

Obstruction of construction of authorised works

34.  Any person who, without reasonable excuse—

(a)obstructs any person acting under the authority of Network Rail in setting out the lines of the scheduled works or in constructing any authorised work; or

(b)interferes with, moves or removes any apparatus belonging to any person acting under the authority of Network Rail,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Temporary traffic regulation

35.—(1) Subject to the provisions of this article Network Rail, may for the purposes of and during the construction of the authorised works—

(a)permit, prohibit, suspend or restrict the stopping, waiting, parking, loading or unloading of vehicles in the manner specified in Part 1 of Schedule 9 (temporary traffic regulation) on those streets specified in column (3) and between the points and to the extent specified in columns (4) and (5) of that Part of that Schedule; and

(b)make provision as to the restriction on the speed of vehicular traffic in the manner specified in Part 2 of Schedule 9 on the streets specified in column (3) between the points and to the extent specified in column (4) of that Part of that Schedule; and

(c)so far as may be necessary or expedient for the purposes of or in connection with construction of the authorised works—

(i)revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act;

(ii)permit, prohibit or restrict the stopping, waiting, loading or unloading of vehicles on any road;

(iii)suspend or authorise the use as a parking place of any road;

(iv)make provision as to the direction or priority of vehicular traffic on any road; and

(v)permit or prohibit vehicular access to any road,

either at all times or at times, on days or during such periods as may be specified by Network Rail.

(2) The powers conferred by paragraph (1)(c) may only be exercised after Network Rail has consulted the chief officer of police and such other persons as it considers necessary and appropriate, after Network Rail has taken into consideration any representations made to it by any such person and after Network Rail has obtained the consent of the traffic authority in whose area the road concerned is situated (which must not be unreasonably withheld but may be given subject to reasonable conditions).

(3) Network Rail must not exercise the powers conferred by this article in relation to any road unless it has—

(a)given not less than 4 weeks’ notice in writing of its intention so to do to the chief officer of police and to the traffic authority in whose area the road is situated; and

(b)advertised its intention in such manner as the traffic authority may within 7 days of its receipt of notice of Network Rail’s intention specify in writing.

(4) Any prohibition, suspension or other provision made by Network Rail under paragraph (1) has effect as if duly made by, as the case may be—

(a)the traffic authority in whose area the road is situated, as a traffic regulation order under the 1984 Act; or

(b)the local authority in whose area the road is situated, as an order under section 32 of the 1984 Act,

and the instrument by which it is effected may specify savings and exemptions (in addition to those mentioned in Schedule 9) to which the prohibition, restriction or other provision is subject.

(5) Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by Network Rail from time to time by subsequent exercise of the powers of paragraph (1).

(6) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.

(7) The powers conferred on Network Rail by this article with respect to any road have effect subject to any agreement entered into by Network Rail with any person with an interest in (or who undertakes activities in relation to) premises served by the road.

Traffic signs

36.—(1) Network Rail may, for the purposes of the construction of the authorised works, place or maintain traffic signs on any street within the Order limits or which gives access to such a street, or on any street in connection with any instrument made under article 35 (temporary traffic regulation) or any other street as reasonably required for conveying information to traffic.

(2) Network Rail—

(a)must consult with the traffic authority as to the placing of traffic signs; and

(b)may subject to any directions given under section 65 (powers and duties of highway authorities as to placing of traffic signs) of the 1984 Act, enter into arrangements with the consent of the traffic authority for the traffic signs to be placed and maintained by the traffic authority, such consent not to be unreasonably withheld.

(3) Any power conferred by section 65 of the 1984 Act to give directions to a traffic authority or local traffic authority as to traffic signs includes a power to give directions to Network Rail as to traffic signs under this article; and the powers conferred by paragraph (1) are exercisable subject to and in conformity with any directions given under that section.

(4) A traffic authority or other authority having power under or by virtue of the 1984 Act to place and maintain, or cause to be placed and maintained, traffic signs on any street referred to in paragraph (1) must consult with Network Rail as to the placing of any traffic signs which may affect the authorised works.

(5) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.

Disclosure of confidential information

37.  A person who—

(a)enters a factory, workshop or workplace under the provisions of article 15 (protective works to buildings) or article 16 (power to survey and investigate land); and

(b)discloses to any person any information obtained as a result of that entry and relating to any manufacturing process or trade secret,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale unless the disclosure is made in the course of that person’s performance of a duty in connection with the purposes for which the person was authorised to enter the land.

Statutory undertakers etc.

38.  The provisions of Schedule 10 (provisions relating to statutory undertakers etc.) have effect.

Protection of interests

39.  Schedule 11 (protective provisions) has effect.

Certification of plans etc.

40.  Network Rail must, as soon as practicable after the making of this Order, submit copies of the book of reference, the deposited plans, the deposited sections and the traffic regulation plans to the Secretary of State for certification that they are, respectively, true copies of the book of reference, the deposited plans, the deposited sections and the traffic regulation plans referred to in this Order; and a document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Service of notices

41.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

(a)by post; or

(b)with the consent of the recipient and subject to paragraphs (6) to (8) by electronic transmission.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(62) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

(a)in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b)in any other case, the last known address of that person at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

(a)addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

(b)either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is taken to be fulfilled where the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission either in writing or by electronic transmission.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or any part of that notice or other document the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic transmission given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a)that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b)such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article does not be taken to exclude the employment of any method of service not expressly provided for by it.

No double recovery

42.  Compensation is not payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.

Arbitration

43.  Any difference under any provision of this Order, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, 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.

Signed by authority of the Secretary of State

Natasha Kopala

Head of the Transport and Works Act Orders Unit

Department for Transport

28th March 2018

Articles 2 and 6

SCHEDULE 1SCHEDULED WORKS

In the County of Derbyshire, Peak District National Park—

Work No. 1 – A railway embankment and associated maintenance walkway (23 metres in length) commencing at a point 370 metres east of the junction of Sickleholme with Hathersage Road (A6187) and terminating at a point 390 metres east of that junction.

Work No. 2 – A railway cutting and associated maintenance walkway (30.94 metres in length) commencing at a point 395 metres east of the junction of Sickleholme with Castleton Road (A6187) and terminating at a point 425 metres east of that junction.

Work No. 3 – A railway cutting and a railway embankment (501.38 metres in length) commencing at a point 156 metres west of culvert MAS/25A beneath the Manchester to Sheffield Railway and terminating at a point 77 metres east of culvert MAS/24 beneath the Manchester to Sheffield Railway. Work No. 3 includes extensions to culvert MAS/25A, Underbridge MAS/25, culvert MAS/24 and the construction of a maintenance walkway.

Work No. 3a – A diversion of an oil pipeline (25.72 metres in length) commencing beneath a point 59 metres north-west of culvert MAS/24 continuing south-westwards beneath Work No.3 and terminating beneath the Manchester to Sheffield Railway at a point 5 metres west of Underbridge MAS/25.

Work No. 4 – A retaining wall and the reprofiling of an existing railway embankment (49.72 metres in length), commencing at a point 52 metres west of Underbridge MAS/23 beneath the Manchester to Sheffield Railway and terminating at a point east of its commencement.

Work No. 5 – A footbridge (51.86 metres in length) over the Manchester to Sheffield Railway commencing at a point 10 metres north-east of the Hathersage West level crossing and terminating at a point 8 metres south-west of that crossing.

In the City of Sheffield—

Work No. 6 – A railway (28.90 metres in length) commencing at a point 116 metres east of the junction of Five Trees Avenue with Five Trees Drive passing north-eastwards and terminating at a point 177 metres north-west of the junction of Rosamond Avenue with Everard Avenue.

Work No. 7 – Work number not used.

Work No. 8 – A footbridge (53.08 metres in length) within Dore and Totley Station commencing at a point 58 metres south-east of the junction of Dore Road with Abbeydale Road South (A621) and terminating at a point 66 metres east of the junction of Abbeydale Road South (A621) with Ladies Spring Grove.

Work No. 9 – An extension of the existing platform at Dore and Totley Station (36.03 metres in length) commencing at a point 47 metres east of the junction of Dore Road with Abbeydale Road South (A621) and terminating at a point 57 metres north-east of that junction.

Work No. 10 – A new platform at Dore and Totley Station (153 metres in length) commencing at a point 113 metres east of the junction of Abbeydale Road South with Twentywell Lane and terminating at a point 68 metres north-east of the junction of Dore Road with Abbeydale Road South (A621).

Articles 6 and 17

SCHEDULE 2ACQUISITION OF CERTAIN LANDS FOR ANCILLARY WORKS

(1)

Area

(2)

Number of land shown on the deposited plans

(3)

Purpose for which land may be acquired

County of Derbyshire, Peak District National Park3, 19, 28a and 29Construction of authorised works for the railway
City of Sheffield41, 46, 50 and 54Construction of authorised works for the railway
55 and 56Construction of authorised works for the railway and Dore and Totley Station

Article 8

SCHEDULE 3STREETS SUBJECT TO STREET WORKS

(1)

Area

(2)

Street subject to street works

County of Derbyshire, Peak District National ParkCastleton Road (A6187)
City of SheffieldAbbeydale Road South (A621)

Article 9

SCHEDULE 4STREETS TO BE TEMPORARILY STOPPED UP

(1)

Area

(2)

Street to be temporarily stopped up

(3)

Extent of stopping up

County of Derbyshire, Peak District National ParkBamford Railway Station Approach RoadWithin the Order limits
Castleton Road (A6187)Within the Order limits
Footpath FP/28Within the Order limits
City of SheffieldFootpath SHE/318Between points F1 and F2
Abbeydale Road South (A621)Within the Order limits

Article 13

SCHEDULE 5REPLACEMENT AND CLOSURE OF FOOTPATH CROSSING

(1)

Area

(2)

Footpath level crossing to be discontinued

(3)

Footpath to be stopped up

(4)

New footpath to be substituted

County of Derbyshire, Peak District National ParkHathersage West level crossingFootpath FP/28 between points F1 and F2Footpath between points F1, F3, Work No. 5, F4 and F2

Article 20

SCHEDULE 6MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply with the necessary modifications as respects compensation in the case of a compulsory acquisition under this Order of a right by the creation of a new right or imposition of a restrictive covenant as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.—(1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the following modification set out in sub-paragraph (2).

(2) For section 5A(5A) (relevant valuation date) of the 1961 Act substitute—

(5A) If—

(a)the acquiring authority enter on land for the purposes of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 6 to the Network Rail (Hope Valley Capacity) Order 2018 (“the 2018 Order”)),

(b)the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 6 to the 2018 Order) to acquire an interest in the land, and

(c)the acquiring authority enter on and takes possession of that land,

the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.

3.—(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973(63) has effect subject to the modifications set out in sub-paragraph (2).

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)—

(a)for the words “land is acquired or taken from” substitute “a right or restrictive covenant over land is purchased from or imposed on”; and

(b)for the words “acquired or taken from him” substitute “over which the right is exercisable or the restrictive covenant enforceable”.

Application of Part 1 of the 1965 Act

4.  Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied by article 18 (application of Part 1 of the 1965 Act) to the acquisition of land under article 17 (power to acquire land), applies to the compulsory acquisition of a right by the creation of a new right, or to the imposition of a restrictive covenant, under article 20(1), (2) or (3) (power to acquire new rights)—

(a)with the modification specified in paragraph 5; and

(b)with such other modifications as may be necessary.

5.—(1) The modifications referred to in paragraph 4(a) are as follows.

(2) References in the 1965 Act to land are, in the appropriate contexts, to be read (according to the requirements of the particular context) as referring to, or as including references to—

(a)the right acquired or to be acquired, or the restriction imposed or to be imposed; or

(b)the land over which the right is or is to be exercisable, or the restriction is or is to be enforceable.

(3) For section 7 (measure of compensation in the case of severance) of the 1965 Act substitute—

7.  In assessing the compensation to be paid by the acquiring authority under this Act regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired or the restrictive covenant is to be imposed is depreciated by the acquisition of the right or imposition of the restrictive covenant, but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

(4) The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

(a)section 9(4) (failure by owners to convey);

(b)paragraph 10(3) of Schedule 1 (owners under incapacity);

(c)paragraph 2(3) of Schedule 2 (absent and untraced owners); and

(d)paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired or the restrictive covenant which is to be imposed is vested absolutely in the acquiring authority.

(5) Section 11(64) (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right or restriction, as well as the notice of entry required by subsection (1) of that section (as it applies to a compulsory acquisition under article 18(1)), it has power, exercisable in the equivalent circumstances and subject to the equivalent conditions, to enter for the purpose of exercising that right or enforcing that restrictive covenant; and sections 11A(65) (powers of entry: further notices of entry), 11B(66) (counter-notice requiring possession to be taken on specified date), 12(67) (penalty for unauthorised entry) and 13(68) (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

(6) Section 20(69) (protection for interests of tenants at will etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right or the enforcement of the restrictive covenant in question.

(7) Section 22 (interests omitted from purchase) of the 1965 Act (as modified by article 18(7)) is modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired or to enforce the restrictive covenant imposed, subject to compliance with that section as respects compensation.

(8) For Schedule 2A to the 1965 Act substitute—

SCHEDULE 2ACOUNTER-NOTICE REQUIRING PURCHASE OF LAND

Introduction

1.(1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or a restrictive covenant affecting the whole or part of a house, building or factory.

(2) But see articles 21(4) (cases where powers of acquisition limited to ground anchor rights) and 22(3) (power to acquire subsoil or airspace only) of the Network Rail (Hope Valley Capacity) Order 2018, which excludes the acquisition of subsoil or airspace only from this Schedule.

2.  In this Schedule “house” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land

3.  A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner’s interest in the house, building or factory.

4.  A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice

5.  On receiving a counter-notice, the authority must decide whether to—

(a)withdraw the notice to treat,

(b)accept the counter-notice, or

(c)refer the counter-notice to the Upper Tribunal.

6.  The authority must serve notice of its decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).

7.  If the authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.

8.  If the authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.

9.  If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.

Determination by Upper Tribunal

10.  On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would—

(a)in the case of a house, building or factory, cause material detriment to the house, building or factory, or

(b)in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.

11.  In making its determination, the Upper Tribunal must take into account—

(a)the effect of the acquisition of the right or the imposition of the covenant,

(b)the use to be made of the right or covenant proposed to be acquired or imposed, and

(c)if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.

12.  If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take.

13.  If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.

14.(1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.

(2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.

(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

Article 20

SCHEDULE 7ACQUISITION OF NEW RIGHTS ONLY

(1)

Area

(2)

Number of land shown on the deposited plan

(3)

Purpose for which rights may be acquired

County of Derbyshire, Peak District National Park3b, 17, 18, 27, 28b and 29aProvision of maintenance access for the authorised works
City of Sheffield38, 40 and 40aProvision of maintenance access for the authorised works

Articles 6 and 24

SCHEDULE 8LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1)

Area

(2)

Number of land shown on the deposited plans

(3)

Purpose for which temporary possession may be taken

(4)

Authorised works

County of Derbyshire, Peak District National Park1aWorking site and accessWork Nos. l and 2
2AccessWork Nos. 1 and 2
2a and 3aWorking site and accessWork Nos. 1 and 2
3bAccessWork Nos. 3 and 3a
5 and 7AccessWork Nos. 1 and 2
9 and 12AccessWork No. 3
15Working site, access and environmental mitigation worksWork Nos. 3 and 3a
16, 17, 18, 21 and 22aAccessWork Nos. 3 and 3a
23 and 24Working site, access and environmental mitigation worksWork Nos. 3, 3a and 4
23b and 25AccessWork Nos. 3, 3a and 4
26Working site and accessWork Nos. 3, 3a and 4
27, 28b and 29aAccessWork Nos. 3, 3a and 4
30AccessWork No. 5
31 and 36Working site, access, temporary footpath diversion and environmental mitigation worksWork No. 5
City of Sheffield38 and 40aAccessWork No. 6
39 and 40Access and environmental mitigation worksWork No. 6
39aWorking site, access and environmental mitigation worksWork No. 6
42, 44 and 49Access and environmental mitigation worksWork No. 6
43 and 45Environmental mitigation worksWork No. 6
51Working site, access and environmental mitigation worksWork No. 6
52Working site, access, temporary footpath diversion and environmental mitigation worksWork No. 6
70, 73 and 75Working site and accessWork Nos. 8, 9 and 10
76AccessWork Nos. 8, 9 and 10

Article 35

SCHEDULE 9TEMPORARY TRAFFIC REGULATION

In column (2) of each of the tables below, the number before the full stop refers to the relevant sheet number of the traffic regulation plans, and the number after the full stop refers to the relevant traffic regulation category shown on that sheet. References in the tables below to points by letters are to be construed as references to points on the traffic regulation plans.

PART 1NO WAITING, NO PARKING AND NO LOADING AT ANY TIME

(1)

Area

(2)

No.

(3)

Road

(4)

Side of Road

(5)

Extent

(6)

Notes

County of Derbyshire, Peak District National Park1.1Bamford Railway Station Approach RoadSouthNo waiting, no parking, no loading or unloading at any time (24 hrs all day) between points A and B on the southern side of Bamford Railway Station Approach Road an overall distance of 108 metres. Exemptions to apply for authorised construction vehicles.To facilitate access for the construction of the authorised works.
1.1Bamford Railway Station Approach RoadNorthNo waiting, no parking, no loading or unloading at any time (24 hrs all day) between points C and D on the northern side of Bamford Railway Station Approach Road an overall distance of 106 metres. Exemptions to apply for authorised construction vehicles.To facilitate access for the construction of the authorised works.
City of Sheffield4.1Dore RoadSouthNo waiting, no parking, no loading or unloading at any time (24 hrs all day) between points K and L on the southern side of Dore Road an overall distance of 344 metres.To facilitate access for the construction of the authorised works.
4.1Dore RoadNorthNo waiting, no parking, no loading or unloading at any time (24 hrs all day) between points M and N on the northern side of Dore Road an overall distance of 348 metres.To facilitate access for the construction of the authorised works.

PART 2SPEED RESTRICTIONS

(1)

Area

(2)

No.

(3)

Road

(4)

Extent

(5)

Notes

County of Derbyshire, Peak District National Park1.2Castleton Road (A6187)Introduction of new speed restriction to reduce the speed limit from 60 mph to 40 mph between points E and F on both carriageways of Castleton Road (A6187) an overall distance of 362 metres.To facilitate access from Castleton Road (A6187) to the authorised works for construction traffic and to maintain road safety.
2.2Castleton Road (A6187)Introduction of new speed restriction to reduce the speed limit from 60 mph to 40 mph between points G and H on both carriageways of Castleton Road (A6187) an overall distance of 794 metres.To facilitate access from Castleton Road (A6187) to the authorised works for construction traffic and to maintain road safety.
3.2Castleton Road (A6187)Introduction of new speed restriction to reduce the speed limit from 60 mph to 40 mph between points I and J on both carriageways of Castleton Road (A6187) an overall distance of 758 metres.To facilitate access from Castleton Road (A6187) to the authorised works for construction vehicles and to maintain road safety.

Article 38

SCHEDULE 10PROVISIONS RELATING TO STATUTORY UNDERTAKERS ETC.

Apparatus of statutory undertakers etc. on land acquired

1.  Sections 271 to 274(70) (extinguishment of rights of statutory undertakers etc.) of the 1990 Act apply in relation to any land acquired or appropriated by Network Rail under this Order subject to the following provisions of this paragraph; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282(71), which provide for the payment of compensation) have effect accordingly.

2.  In the provisions of the 1990 Act, as applied by paragraph 1, references to the appropriate Minister are references to the Secretary of State.

3.  Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by paragraph 1, any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from Network Rail compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

4.  Paragraph 3 does not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

(a)the owner or occupier of premises the drains of which communicated with that sewer; or

(b)the owner of a private sewer which communicated with that sewer,

is entitled to recover from Network Rail compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer communicate with any other public sewer or with a private sewerage disposal plant.

5.  The provisions of the 1990 Act mentioned in paragraph 1, as applied by that paragraph, do not have effect in relation to apparatus as respects which paragraph 2 or Part 3 of the 1991 Act applies.

6.  Nothing in this Schedule affects the provisions of any enactment or agreement regulating the relations between Network Rail and an undertaker in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which the Order is made.

7.  In this Schedule—

“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003(72); and

“public utility undertakes” has the same meaning as in the 1980 Act(73).

Article 39

SCHEDULE 11PROTECTIVE PROVISIONS

PART 1FOR THE PROTECTION OF SPECIFIED UNDERTAKERS

1.—(1) For the protection of the undertakers referred to in this Part of this Schedule the following provisions have effect unless otherwise agreed in writing between Network Rail and the undertakers concerned.

(2) The provisions of paragraph 1 of Schedule 10 (provisions relating to statutory undertakers etc.), in so far as they relate to the removal of apparatus, do not apply in relation to apparatus to which this Part of this Schedule applies.

2.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable the undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means—

(a)

in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989(74)) belonging to or maintained by that undertaker;

(b)

in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;

(c)

in the case of a water undertaker any mains, pipes or other apparatus belonging to, or maintained by, the undertaker for the purposes of water supply; and

(d)

in the case of a sewerage undertaker—

(i)

any drain or works vested in the undertaker under the Water Industry Act 1991; and

(ii)

any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act,

and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works,

and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties;

“in”, in a context referring to apparatus or alternative apparatus in land, includes a reference to apparatus or alternative apparatus under, over or upon land; and

“undertaker” means—

(a)

any licence holder within the meaning of Part 1 of the Electricity Act 1989;

(b)

a gas transporter within the meaning of Part 1 of the Gas Act 1986(75);

(c)

a water undertaker within the meaning of the Water Industry Act 1991; and

(d)

a sewerage undertaker within the meaning of Part 1 of the Water Industry Act 1991,

for the area of the authorised works, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between Network Rail and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.

4.  Without affecting any provision in this Order or anything shown on the deposited plans Network Rail must not acquire any apparatus other than by agreement.

5.—(1) If, in the exercise of the powers conferred by this Order, Network Rail acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of an undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker in question.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, Network Rail requires the removal of any apparatus placed in that land, it must give to the undertaker in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an undertaker reasonably needs to remove any of its apparatus) Network Rail must, subject to sub-paragraph (3), afford to the undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of Network Rail and for the subsequent maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of Network Rail, or Network Rail is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the undertaker in question must, on receipt of a written notice to that effect from Network Rail, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of Network Rail under this Part of this Schedule must be constructed in such manner and in such line or situation as may be agreed between the undertaker in question and Network Rail or in default of agreement settled by arbitration in accordance with article 43 (arbitration).

(5) The undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 43, and after the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by Network Rail to be removed under the provisions of this Part of this Schedule.

(6) Without affecting anything in sub-paragraph (5), if Network Rail gives notice in writing to the undertaker in question that it desires itself to execute any work to which this sub-paragraph applies, that work, instead of being executed by the undertaker, must be executed by Network Rail without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker.

(7) Sub-paragraph (6) applies to any part of any work necessary in connection with construction of alternative apparatus, or the removal of apparatus required to be removed, as will take place in any land of Network Rail.

(8) Nothing in sub-paragraph (6) authorises Network Rail to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

6.—(1) Where, in accordance with the provisions of this Part of this Schedule, Network Rail affords to an undertaker facilities and rights for the construction and maintenance in land of Network Rail of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between Network Rail and the undertaker in question or in default of agreement settled by arbitration in accordance with article 43 (arbitration).

(2) In settling those terms and conditions in respect of the alternative apparatus to be constructed in or along any railway, the arbitrator must—

(a)give effect to all reasonable requirements of Network Rail for ensuring the safety and efficient operation of the railway and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of Network Rail or the traffic on the railway; and

(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions, if any, applicable to the apparatus constructed in or along the railway for which the alternative apparatus is to be substituted.

(3) If the facilities and rights to be afforded by Network Rail in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by Network Rail to that undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

7.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by Network Rail under paragraph 5(2), Network Rail must submit to the undertaker in question a plan, section and description of the works to be executed.

(2) Those works are to be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and an officer of the undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by the undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description are submitted to it under sub-paragraph (1).

(4) If an undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by Network Rail, reasonably requires the removal of any apparatus and gives written notice to Network Rail of that requirement, paragraphs 1 to 6 apply as if the removal of the apparatus had been required by Network Rail under paragraph 5(2).

(5) Nothing in this paragraph precludes Network Rail from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) Network Rail is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

8.—(1) If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed Network Rail must provide such alternative means of access to such apparatus as will enable the undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

(2) Subject to the following provisions of this paragraph, Network Rail must repay to an undertaker the reasonable expenses incurred by that undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 5(2).

(3) The value of any apparatus removed under the provisions of this Part of this Schedule is to be deducted from any sum payable under sub-paragraph (2), that value being calculated after removal.

(4) If in accordance with the provisions of this Part of this Schedule—

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions; or

(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by Network Rail or, in default of agreement, is not determined by arbitration in accordance with article 43 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the undertaker in question by virtue of sub-paragraph (2), is to be reduced by the amount of that excess.

(5) For the purposes of sub-paragraph (4)—

(a)an extension of apparatus to a length greater than the length of existing apparatus must not be treated as placing of apparatus of greater dimensions than those of the existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole must be treated as if it also had been agreed or had been so determined.

(6) An amount which apart from this sub-paragraph would be payable to an undertaker in respect of works by virtue of sub-paragraph (2) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the undertaker any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any of the works referred to in paragraph 5(2), any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, Network Rail must—

(a)bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and

(b)make reasonable compensation to that undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker,

by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on Network Rail with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an undertaker, its officers, servants, contractors or agents.

(3) An undertaker must give Network Rail reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of Network Rail, which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

10.  Nothing in this Part of this Schedule affects the provision of any enactment or agreement regulating the relations between Network Rail and an undertaker in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which this Order is made.

PART 2FOR THE PROTECTION OF OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

11.—(1) For the protection of any operator, the following provisions have effect, unless otherwise agreed in writing between Network Rail and the operator, have effect.

(2) In this Part of this Schedule—

“conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system are to be construed in accordance with paragraph 1(3A) of that code;

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act(76);

“electronic communications code network” means—

(a)

so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and

(b)

an electronic communications network which the Secretary of State is providing or proposing to provide;

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act; and

“operator” means the operator of an electronic communications code network.

12.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised works or their construction, or of any subsidence resulting from any of those works—

(a)any damage is caused to any electronic communications apparatus belonging to an operator (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works), or other property of an operator; or

(b)there is any interruption in the supply of the service provided by an operator,

Network Rail must bear and pay the cost reasonably incurred by an operator in making good such damage or restoring the supply and must—

(i)make reasonable compensation to that operator for loss sustained by it; and

(ii)indemnify that operator against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, that operator by reason, or in consequence of, any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on Network Rail with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

(3) The operator must give Network Rail reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand is to be made without the consent of Network Rail which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between Network Rail and the operator under this Schedule must be referred to and settled by arbitration under article 43 (arbitration).

13.  This Part of this Schedule does not apply to—

(a)any apparatus in respect of which the relations between Network Rail and an operator are regulated by the provisions of Part 3 of the 1991 Act; or

(b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised works.

14.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between Network Rail and an operator in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which this Order is made.

PART 3FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

15.—(1) The following provisions of this Part of this Schedule apply for the protection of the Agency unless otherwise agreed in writing between Network Rail and the Agency.

(2) In this Part of this Schedule—

“the Agency” means the Environment Agency;

“construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are to be construed accordingly;

“drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

“the fishery” means any waters containing fish and the spawn, habitat or food of such fish;

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

“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to—

(a)

affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;

(b)

affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;

(c)

cause obstruction to the free passage of fish or damage to any fishery; or

(d)

affect the conservation, distribution or use of water resources.

16.—(1) Before beginning to construct any specified work, Network Rail must submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the submission of the plans reasonably require.

(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 26.

(3) Any approval of the Agency required under this paragraph—

(a)must not be unreasonably withheld or delayed;

(b)is deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and

(c)may be given subject to such reasonable requirements as the Agency may make for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.

(4) The Agency must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

17.  Without limitation on the scope of paragraph 16, the requirements which the Agency may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

(a)to safeguard any drainage work against damage; or

(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

18.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 17, must be constructed—

(a)without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and

(b)to the reasonable satisfaction of the Agency,

and an officer of the Agency is entitled to watch and inspect the construction of such works.

(2) Network Rail must give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

(3) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require Network Rail at Network Rail’s own expense to comply with the requirements of this Part of this Schedule or (if Network Rail so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

(4) Subject to sub-paragraph (5) and paragraph 22, if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon Network Rail, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing is recoverable from Network Rail.

(5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency must not except in emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.

19.—(1) Subject to sub-paragraph (5) Network Rail must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation or on land held by Network Rail for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

(2) If any such drainage work which Network Rail is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require Network Rail to repair and restore the work, or any part of such work, or (if Network Rail so elects and the Agency in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

(3) Subject to paragraph 22, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on Network Rail, Network Rail has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from Network Rail.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Agency must not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.

(5) This paragraph does not apply to—

(a)drainage works which are vested in the Agency, or which the Agency or another person is liable to maintain and is not prescribed by the powers of the Order from doing so; or

(b)any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provision of this Part of this Schedule.

20.  Subject to paragraph 22, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by Network Rail to the reasonable satisfaction of the Agency and if Network Rail fails to do so, the Agency may make good the same and recover from Network Rail the expense reasonably incurred by it in so doing.

21.—(1) Network Rail must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.

(2) If by reason of—

(a)the construction of any specified work; or

(b)the failure of any such work,

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on Network Rail requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

(3) Subject to paragraph 22, if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, Network Rail fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from Network Rail the expense reasonably incurred by it in doing so.

(4) Subject to paragraph 22, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from Network Rail the reasonable cost of so doing provided that notice specifying those steps is served on Network Rail as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

22.  Nothing in paragraphs 18(4), 19(3), 20, 21(3) and (4) authorises the Agency to execute works on or affecting an operational railway forming part of Network Rail’s network without the prior consent in writing of Network Rail, such consent not to be unreasonably withheld or delayed.

23.  Network Rail must indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain—

(a)in the examination or approval of plans under this Part of this Schedule; and

(b)in the inspection of the construction of the specified works or any protective works required by the Agency under this Part of this Schedule.

24.—(1) Without affecting the other provisions of this Part of this Schedule, Network Rail must indemnify the Agency from all claims, demands, proceedings, costs, damages, expenses or loss, which may be made or taken against, recovered from, or incurred by, the Agency by reason of—

(a)any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

(b)any damage to the fishery;

(c)any raising or lowering of the water table in land adjoining the authorised works or any sewers, drains and watercourses;

(d)any flooding or increased flooding of any such lands; or

(e)inadequate water quality in any watercourse or other surface waters or in any groundwater,

which is caused by the construction of any of the specified works or any act or omission of Network Rail, its contractors, agents or employees whilst engaged upon the work.

(2) The Agency must give to Network Rail reasonable notice of any such claim or demand and no settlement or compromise may be made without the agreement of Network Rail which agreement must not be unreasonably withheld or delayed.

25.  The fact that any work or thing has been executed or done by Network Rail in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve Network Rail from any liability under the provisions of this Part of this Schedule.

26.  Any dispute arising between Network Rail and the Agency under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 43 (arbitration), but otherwise is to be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly on a reference to them by Network Rail or the Agency, after notice in writing by one to the other.

PART 4FOR THE PROTECTION OF LEAD LOCAL FLOOD AUTHORITIES

27.—(1) The following provisions of this Part of this Schedule apply for the protection of the lead local flood authority unless otherwise agreed in writing between Network Rail and the lead local flood authority.

(2) In this Part of this Schedule—

“construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are to be construed accordingly;

“drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any ordinary watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence;

“lead local flood authority” means in relation to an ordinary watercourse the lead local flood authority concerned within the meaning of section 23 of the Land Drainage Act 1991(77);

“ordinary watercourse” has the meaning given by the Land Drainage Act 1991;

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

“specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to affect any drainage work.

28.—(1) Before beginning to construct any specified work, Network Rail must submit to the lead local flood authority plans of the specified work and such further particulars available to it as the lead local flood authority may within 28 days of the submission of the plans reasonably require.

(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the lead local flood authority, or determined under paragraph 35.

(3) Any approval of the lead local flood authority required under this paragraph—

(a)must not be unreasonably withheld or delayed;

(b)is deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and

(c)may be given subject to such reasonable requirements as the lead local flood authority may make for the protection of any drainage work.

(4) The lead local flood authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

29.  Without limitation on the scope of paragraph 28, the requirements which the lead local flood authority may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

(a)to safeguard any drainage work against damage; or

(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

30.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the lead local flood authority under paragraph 29, must be constructed—

(a)without unreasonable delay in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and

(b)to the reasonable satisfaction of the lead local flood authority,

and an officer of the lead local flood authority is entitled to watch and inspect the construction of such works.

(2) Network Rail must give to the lead local flood authority not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

(3) If any part of a specified work or any protective work required by the lead local flood authority is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the lead local flood authority may by notice in writing require Network Rail at Network Rail’s own expense to comply with the requirements of this Part of this Schedule.

(4) Subject to sub-paragraph (5), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon Network Rail, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the lead local flood authority may execute the works specified in the notice and any expenditure incurred by it in so doing is recoverable from Network Rail.

(5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the lead local flood authority must not except in emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.

31.—(1) Subject to sub-paragraph (3) Network Rail must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation or on land held by Network Rail for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

(2) If any such drainage work which Network Rail is liable to maintain is not maintained to the reasonable satisfaction of the lead local flood authority, the lead local flood authority may by notice in writing require Network Rail to repair and restore the work, or any part of such work, or (if Network Rail so elects and the lead local flood authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the lead local flood authority reasonably requires.

(3) This paragraph does not apply to—

(a)drainage works which are vested in the lead local flood authority, or which the lead local flood authority or another person is liable to maintain and is not prescribed by the powers of the Order from doing so; or

(b)any obstruction of a drainage work for the purposes of a work or operation authorised by this Order and carried out in accordance with the provisions of this Part of this Schedule.

32.  If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by Network Rail to the reasonable satisfaction of the lead local flood authority and if Network Rail fails to do so, the lead local flood authority may make good the impairment or damage and recover from Network Rail the expense reasonably incurred by it in so doing.

33.—(1) Network Rail must pay all costs, charges and expenses which the lead local flood authority may reasonably incur or have to pay—

(a)in the examination or approval of plans under this Part of this Schedule; and

(b)in the inspection of the construction of the specified works or any protective works required by the lead local flood authority under this Part of this Schedule.

34.  The fact that any work or thing has been executed or done by Network Rail in accordance with a plan approved or deemed to be approved by the lead local flood authority, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve Network Rail from any liability under the provisions of this Part of this Schedule.

35.  Any dispute arising between Network Rail and the lead local flood authority under this Part of this Schedule, if the parties agree, is to be determined by arbitration under article 43 (arbitration).

EXPLANATORY NOTE

(This note is not part of the Order)

This Order authorises Network Rail Infrastructure Limited to construct and operate works on the Hope Valley Line between Sheffield and Manchester for the purposes of improving capacity for the operation of railway services between Sheffield and Manchester.

The works include new sections of embankment and cutting and associated works to the east of Bamford Station and a new section of railway, running partly on embankment and partly in cutting, and associated works to the west of Dore and Totley Station. The Order also authorises alterations to existing railway infrastructure together with a new footbridge to the west of Hathersage Station to replace an existing level crossing and station improvement works at Dore and Totley Station.

The Order authorises the acquisition of land and rights in land, and the use of land, for the purposes of the works and confers powers in connection with the construction and operation of the railway.

Upon request, copies of the deposited plans and deposited sections and book of reference referred to in the Order can be made available for inspection at the offices of Network Rail Infrastructure Limited at Network Rail National Records Centre, Unit 5, Audax Road, Clifton Moor, York YO30 4US.

(2)

1992 c. 42. Section 1 was amended by the Planning Act 2008 (c. 29), Schedule 2, paragraphs 51 and 52; section 5 was amended by S.I. 2012/1659.

(11)

1981 c. 67. The definition of “owner” was amended by paragraph 9 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34). There are other amendments to section 7 which are not relevant to this Order.

(13)

Section 58 was amended by section 46 of, and part 3 of Schedule 7 to, the Justices of the Peace Act 1949 (c. 101).

(14)

Section 75 was amended by section 49 of the Transport and Works Act 1992 (c. 42).

(15)

Section 84, as substituted, was amended by part 3 of Schedule 7 to the Justices of the Peace Act 1949 (c. 101) and section 46 of the Criminal Justice Act 1982 (c. 48). Section 85C, as substituted, was amended by virtue of section 17(2)(a) of the Interpretation Act 1978 (c. 30).

(17)

Section 103 was amended by the Statute Law Revisions Act 1892 (c. 19), part 3 of Schedule 7 to the Justices of the Peace Act 1949 (c. 101) and section 46 of the Criminal Justice Act 1982 (c. 48).

(18)

Section 145 was amended by the Statute Law Revision Act 1892 (c. 19) and part 2 of Schedule 12 to the Transport Act 1962 (c. 46).

(20)

As amended by section 102 of, and Schedule 17 to, the Local Government Act 1985 (c. 51) and section 168(2) of, and Schedule 9 to, the New Roads and Street Works Act 1991 (c. 22).

(21)

Sections 54, 55, 57, 60, 68 and 69 were amended by section 40(1) and (2) of, and Schedule 1 to, the Traffic Management Act 2004 (c. 18).

(22)

As also amended by section 49(1) of the Traffic Management Act 2004.

(23)

As also amended by section 49(2) and 51(9) of the Traffic Management Act 2004.

(24)

As also amended by section 52(3) of the Traffic Management Act 2004.

(25)

As amended by section 42 of the Traffic Management Act 2004.

(29)

As amended by S.I. 2006/1177.

(31)

1991 c. 56. Section 106 was amended by sections 35(1), 35(8) and 43(2) of, and Schedule 2 to, the Competition and Service (Utilities) Act 1992 (c. 43), sections 36(2) and 99 of the Water Act 2003 (c. 37) and paragraph 16(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29).

(34)

Section 10 was amended by section 4 of, and paragraph 13(2) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c.11) and S.I. 2009/1307.

(36)

As inserted by section 202(1) of the Housing and Planning Act 2016 (c. 22).

(38)

Subsection (1B) of section 11 was inserted by section 186(1) and (2)(b) of the Housing and Planning Act 2016 (c. 22).

(39)

As inserted by section 186(3) of the Housing and Planning Act 2016 (c. 22).

(41)

As inserted by paragraph 3 of Schedule 3 to the Housing and Planning Act 2016 (c. 22).

(43)

Inserted by section 182(2) of the Housing and Planning Act 2016 (c. 22).

(44)

As inserted by section 202(2) of the Housing and Planning Act 2016 (c. 22).

(45)

As amended by paragraph 52(2) of Schedule 2 to the Planning (Consequential Provisions) Act 1990 (c. 11) and paragraph 7 of Schedule 15 to the Housing and Planning Act 2016 (c. 22).

(46)

As amended by paragraph 3 of Schedule 18 to the Housing and Planning Act 2016 (c. 22).

(47)

As inserted by paragraph 6 of Schedule 18 to the Housing and Planning Act 2016 (c. 22).

(48)

Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

(49)

Section 4 was amended by section 184 and 185 of, and paragraph 1 and 2 of Schedule 18 to, the Housing and Planning Act 2016 (c. 22).

(50)

Section 10 was amended by section 4 of, and paragraph 13(2) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11) and S.I. 2009/1307.

(51)

Section 13 was amended by sections 62(3) and 139 of, paragraphs 27 and 28 of Schedule 13, and part 3 of Schedule 23, to the Tribunals Courts and Enforcement Act 2007 (c.15).

(52)

Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c.67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c.71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measures 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

(53)

Section 272 was amended by paragraph 103(1) and (2) of Schedule 17 to the Communications Act 2003 (c. 21).

(54)

1990 c. 43. Section 82 was amended by section 5(2) of the Noise and Statutory Nuisance Act 1993 (c. 40) and paragraph 6 of Schedule 17 to the Environment Act 1995 (c. 25).

(55)

Section 79(1) was amended by section 2(2) of the Noise and Statutory Nuisance Act 1993, section 120 of, and paragraph 2(a) of Schedule 17 and paragraph 89(2) of Schedule 22 to, the Environment Act 1995, sections 101(2) and 102(2) of the Clean Neighbourhoods and Environment Act 2005 (c. 16) and sections 109(2), 110(2), 111(2) and 112(2)(a) of the Public Health etc. (Scotland) Act 2008 (asp. 5).

(56)

Section 61 was amended by Schedule 7 to the Building Act 1984 (c. 55), paragraph 15(3) of Schedule 15 to the Environmental Protection Act 1990 (c. 43), Schedule 24 to the Environment Act 1995 and paragraph 10 of Schedule 6 to the Building (Scotland) Act 2003 (asp. 8).

(57)

Section 65 was amended by paragraph 15(4) of Schedule 15 to the Environmental Protection Act 1990 and Schedule 24 to the Environment Act 1995.

(59)

1993 c. 43. As amended by the Transport Act 2000 (c. 38) and the Railways Act 2005 (c. 14).

(60)

Section 90(2A) was inserted by section 16(1) of the Transport and Works Act (c. 42).

(61)

1993 c. 43 as amended by the Transport Act 2000 (c.38) and the Railways Act 2005 (c. 14).

(64)

Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

(65)

Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016 (c. 22).

(66)

Section 11B was inserted by section 187(2) of the Housing and Planning Act 2016 (c. 22).

(67)

Section 12 was amended by section 56(2) of, and Part 1 of Schedule 9 to, the Courts Act 1971 (c. 23) and paragraph 4 of Schedule 16 to the Housing and Planning Act 2016 (c. 22).

(68)

Section 13 was amended by section 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals Courts and Enforcement Act 2007 (c. 15).

(69)

Section 20 was amended by paragraph 4 of Schedule 15 of, the Planning and Compensation Act 1991 (c. 34) and S.I. 2009/1307.

(70)

Sections 272 to 274 were amended by paragraph 103(1) and (2) of Schedule 17 to the Communications Act 2003 (c. 21).

(71)

Section 279(3) was amended by paragraphs 103(1) and (2), and section 280 was amended by paragraph 104, of Schedule 17 to the Communications Act 2003. Sections 280 and 282 were amended by S.I. 2009/1307.

(73)

The definition of “public utility undertakers” was amended by section 190(3) of, and part 1 of Schedule 27 to, the Water Act 1989 (c.15) and section 112(4) of, and Schedule 18 to, the Electricity Act 1989 (c. 29).

(76)

See section 106.

(77)

1991 c.59. Section 23 was amended by section 120 of, and paragraph 192 of Schedule 22 to, the Environment Act 1995 (c.25), paragraphs 25 and 32 of Schedule 2 to the Flood and Water Management Act 2010 (c.29) and S.I. 2013/755.

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