The South Humber Bank Energy Centre Order 2021

PART 5 E+W+S FOR THE PROTECTION OF NETWORK RAIL

41.  For the protection of Network Rail as defined in this part of this Schedule the following provisions have effect, unless otherwise agreed in writing between the undertaker and Network Rail. E+W+S

Commencement Information

I1 Sch. 8 para. 41 in force at 2.12.2021, see art. 1

42.  In this part of this Schedule— E+W+S

“Network Rail” means Network Rail Infrastructure Limited (Company registration number 02904587) whose registered office is at 1 Eversholt Street, London, NW1 2DN and any associated company of Network Rail which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 (meaning of “subsidiary” etc.) of the Companies Act 2006) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993(1)) or station lease;

“railway property” means any railway belonging to Network Rail and—

(a)

any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and

(b)

any easement or other property interest held or used by Network Rail or a tenant or licensee of Network Rail for or connected with the purposes of such [F1 railway, works], apparatus or equipment; and

“specified work” means so much of any of the authorised development as is or is to be situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.

Textual Amendments

F1 Words in Sch. 8 para. 42 substituted (5.4.2022) by The South Humber Bank Energy Centre (Correction) Order 2022 (S.I. 2022/421), art. 1(2), Sch.

Commencement Information

I2 Sch. 8 para. 42 in force at 2.12.2021, see art. 1

43.—(1) Where under this Part Network Rail is required to give its consent, agreement or approval in respect of any matter, that consent, agreement or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute. E+W+S

(2) Subject to sub-paragraph (1) where Network Rail is asked to give its consent, agreement or approval pursuant to this Part, such consent, agreement or approval must not be unreasonably withheld but may be given subject to reasonable conditions.

Commencement Information

I3 Sch. 8 para. 43 in force at 2.12.2021, see art. 1

44.—(1) The undertaker must not submit the construction traffic management plan to the relevant planning authority in accordance with requirement 16 of Schedule 2 (Construction traffic management and travel planning) without having first consulted with Network Rail. E+W+S

(2) The undertaker must provide Network Rail with a draft of the construction traffic management plan and Network Rail must within a period of 28 days beginning with the date on which the draft construction traffic management plan is received by Network Rail serve written notice on the undertaker confirming—

(a) any comments on the draft construction traffic management plan; or

(b) any reasonable amendments to the draft construction traffic management plan as requested by Network Rail; or

(c) that further information is required in order for Network Rail to make comments and/or reasonable amendments (in which case sub-paragraph 44(2) will apply to such further information from the date of its receipt by Network Rail).

(3) In the event that Network Rail fails to serve written notice in accordance with sub-paragraph 44(2) within 28 days of receipt no further consultation with Network Rail is required.

(4) The undertaker must include any reasonable amendments which are requested by Network Rail and notified to the undertaker by Network Rail in the notice given pursuant to sub-paragraph 44(2)(b) in the draft construction traffic management plan it submits to the relevant planning authorities in accordance with requirement 16 of Schedule 2 (Construction traffic management and travel planning) and the undertaker must not submit any such written details to the relevant planning authorities or finalise a construction traffic management plan which Network Rail has not been consulted on in accordance with sub-paragraph 44(2) or 44(3).

(5) Each notice and all other information required to be sent to Network Rail under the terms of this paragraph must—

(a) be sent to the Company Secretary and General Counsel at Network Rail Infrastructure Limited, 1 Eversholt Street, London, NW1 2DN via Royal Mail plc’s special delivery service (or if this service is no longer being provided an appropriate recorded delivery postal service) and marked for the attention of the London North Western Route Level Crossing Manager; and

(b) contain a clear statement on its front page that the matter is urgent and Network Rail must respond within 28 days of receipt.

(6) In the event that any subsequent changes are made to the construction traffic management plan following consultation with Network Rail, in so far as such changes impact on railway property, the undertaker must not submit any written details to the relevant planning authorities or finalise any updates to the construction traffic management plan without further consultation with Network Rail.

Commencement Information

I4 Sch. 8 para. 44 in force at 2.12.2021, see art. 1

45.—(1) The undertaker must not submit the delivery and servicing plan to the relevant planning authorities in accordance with requirement 24 of Schedule 2 (Delivery and servicing plan) without having first consulted with Network Rail. E+W+S

(2) The undertaker must provide Network Rail with a draft of the delivery and servicing plan and Network Rail will within a period of 28 days beginning with the date on which the draft delivery and servicing plan is received by Network Rail serve written notice on the undertaker confirming—

(a) any comments on the draft delivery and servicing plan; or

(b) any reasonable amendments to the draft delivery and servicing plan as requested by Network Rail; or

(c) that further information is required in order for Network Rail to make comments and/or reasonable amendments (in which case this sub-paragraph 45(2) will apply to such further information from the date of its receipt by Network Rail).

(3) In the event that Network Rail fails to serve written notice in accordance with sub-paragraph 45(2) within 28 days of receipt no further consultation with Network Rail is required.

(4) The undertaker must include any reasonable amendments which are requested by Network Rail and notified to the undertaker by Network Rail in the notice given pursuant to sub-paragraph 45(2)(b) in the draft delivery and servicing plan it submits to the relevant planning authorities in accordance with requirement 24 of Schedule 2 (Delivery and servicing plan) and the undertaker must not submit any such written details to the relevant planning authorities or finalise a delivery and servicing plan which Network Rail has not been consulted on in accordance with sub-paragraph 45(2) or 45(3).

(5) Each notice and all other information required to be sent to Network Rail under the terms of this paragraph must—

(a) be sent to the Company Secretary and General Counsel at Network Rail Infrastructure Limited, 1 Eversholt Street, London, NW1 2DN via Royal Mail plc’s special delivery service (or if this service is no longer being provided an appropriate recorded delivery postal service) and marked for the attention of the London North Western Route Level Crossing Manager; and

(b) contain a clear statement on its front page that the matter is urgent and Network Rail must respond within 28 days of receipt.

(6) In the event that any subsequent changes are made to the delivery and servicing plan following consultation with Network Rail, in so far as such changes impact on railway property, the undertaker must not submit any such written details to the relevant planning authorities or finalise any updates to the delivery and servicing plan without further consultation with Network Rail.

Commencement Information

I5 Sch. 8 para. 45 in force at 2.12.2021, see art. 1

46.  The undertaker must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail— E+W+S

(a) in respect of the consultation with the engineer on the construction traffic management plan and the delivery and servicing plan submitted by the undertaker;

(b) in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others;

(c) in respect of any special traffic working resulting from any speed restrictions which may in the opinion of the engineer, require to be imposed by reason or in consequence of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others or from the substitution of diversion of services which may be reasonably necessary for the same reason; and

(d) in respect of any additional temporary lighting of railway property, being lighting made reasonably necessary by reason or in consequence of damage to railway property as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others.

Commencement Information

I6 Sch. 8 para. 46 in force at 2.12.2021, see art. 1

47.—(1) The undertaker must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by Network Rail— E+W+S

(a) by reason of the construction or maintenance of a specified work or the failure thereof; or

(b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work; or

(c) by reason of any act or omission of the undertaker or any person in its employ or of its contractors or others whilst accessing to or egressing from the authorised development; or

(d) in respect of any damage caused to or additional maintenance required to, railway property or any such interference or obstruction or delay to the operation of the railway as a result of access to or egress from the authorised development by the undertaker or any person in its employ or of its contractors or others;

and the undertaker must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission: and the fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under their supervision must not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

(2) Network Rail must give the undertaker reasonable written notice of any such claim or demand and no settlement or compromise of such a claim or demand will be made without the prior consent of the undertaker.

(3) The sums payable by the undertaker under sub-paragraph (1) will if relevant include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs will, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any specified work including but not limited to any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.

Commencement Information

I7 Sch. 8 para. 47 in force at 2.12.2021, see art. 1

48.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I of the Railways Act 1993. E+W+S

Commencement Information

I8 Sch. 8 para. 48 in force at 2.12.2021, see art. 1

(1)

1993 c. 43. Section 83(1) was amended by section 230(6) of the Transport Act 2000 (c. 38).