Articles 2(1) and 4
In the County of the Wrekin, Borough of Telford & Wrekin—
Work No.1—A railway (4,775 metres in length), commencing in the parish of Wellington by a junction with the existing Shrewsbury to Wolverhampton railway at a point on the east side of the bridge (Junction Bridge) carrying Mill Lane over the said existing railway, passing eastwards through the parishes of Hadley and Leegomery and Wrockwardine Wood and Trench along the course of the former Wellington to Stafford railway and terminating in the parish of Lilleshall and Donnington within the site of the Ministry of Defence depot at a point beside the boundary fence of the said depot adjoining the A518 road.
Work No.2A—A railway (212 metres in length) in the parish of Hadley and Leegomery, comprising a branch railway into the works of GKN Sankey Limited (“GKN”), commencing by a junction with Work No. 1 at chainage 1871 metres, extending in a north north-easterly direction and terminating at a point 4 metres from the wall of the GKN factory.
Work No.2B—A railway (312 metres in length) in the parish of Hadley and Leegomery, comprising a branch railway into the works of GKN, commencing by a junction with Work No. 1 at chainage 2,720 metres, extending in a westerly direction and terminating at a point 55 metres west of the western end of the open section of the disused Shropshire Union Canal.
Work No.3A—A railway (409 metres in length) in the parish of Lilleshall and Donnington, comprising a branch railway within the proposed railfreight terminal, commencing by a junction with Work No. 1 at chainage 4,302 metres, extending in a north north-westerly direction and terminating at a point 131 metres east of a point on the eastern side of Hortonwood 37 opposite its junction with Hortonwood 7.
Work No.3B—A railway (352 metres in length) in the parish of Lilleshall and Donnington, comprising a branch railway within the proposed railfreight terminal, commencing by a junction with Work No. 1 at chainage 4,510 metres, extending in a north westerly direction and terminating at a point 3 metres from the southern boundary of the estate road (South Avenue).
Work No.4—A cycleway/footpath bridge over Trench Lock interchange, commencing in the parish of Hadley and Leegomery and terminating in the parish of Wrockwardine Wood and Trench.
Work No.5—An acoustic bund in the parish of Wrockwardine Wood and Trench, consisting of a solid bank of earth of a height not exceeding 6 metres above the existing level of the ground and of a width, at the base thereof, not exceeding 11 metres, approximately parallel to, and to the south of, so much of Work No. 1 as adjoins Trench Road, Preston Grove and Stanmore Drive.
Article 7
Way between Summerhouse Drive and Hurleybrook Way
Horton Road
Way linking Trench Road and A518 at chainage 3,550 metres
Article 10
| (1) | (2) | (3) |
|---|---|---|
| Parish | Way to be stopped up | Extent of stopping up |
| Wellington | Ways over former railway land | Ways over area shown hatched and bounded by points A1, A2, A3 and A4 |
| Hadley and Leegomery | Ways over former railway land | Ways over area shown hatched and bounded by points E2, E3, E4 and E5 |
| Hadley and Leegomery | Ways over former railway land | Ways over area shown hatched and bounded by points H1, H2, H3 and H4 |
| Wrockwardine Wood and Trench | Ways over former railway land | Ways over area shown hatched and bounded by points U1, U2, U3 and U4 |
| Wrockwardine Wood and Trench | Ways over former railway land | Between points U5 and U6 |
| (1) | (2) | (3) | (4) |
|---|---|---|---|
| Parish | Way to be stopped up | Extent of stopping up | New way to be substituted |
| Hadley and Leegomery | Ways over former railway land | Ways over area shown hatched and bounded by points D1, D2, D3 and D4 | Footpath and cycleway between points D and F2 |
| Wellington | Way connecting former railway with Whitchurch Drive | Between points B1 and B2 | Steps between points B and C |
| Hadley and Leegomery | Way connecting former railway with Whitchurch Drive | Between points C1 and C2 | Steps between points B and C |
| Hadley and Leegomery | Way to the rear of Hurleybrook Way | Between points E, E1 and E2 | Footpath and cycleway between points D, F2 and F1 |
| Hadley and Leegomery | Way over former railway bridge at Leegate Avenue | Between points L1 and L2 | Footpath and cycleway between points F and M1 |
| Wrockwardine Wood and Trench | Ways over former railway land | Ways over area shown hatched and bounded by points R1, R2, R3 and R4 | Footpath and cycleway between points S1 and S5 |
| Wrockwardine Wood and Trench | Ways over former railway land | Ways over area shown hatched and bounded by points T1, T2, T3 and T4 | Footpath and cycleway between points S1 and S5 |
| Hadley and Leegomery and Wrockwardine Wood and Trench | Way over former railway bridge at Trench Lock Interchange | Way between points N1, N2 and N3 | Work No. 4 |
| Wrockwardine Wood and Trench | Way under former railway bridge at Trench Lock Interchange | Way between points N3, Q1 and Q5 | Footpath and cycleway between points N3, Q3, Q4 and Q5 |
| (1) | (2) | (3) |
|---|---|---|
| Parish | Street to be affected | Extent of stopping up |
| Wrockwardine Wood and Trench | Horton Road | Between points A and B, and C and D |
Article 11
| (1) | (2) |
|---|---|
| Parish | Way to be provided |
| Wellington | Footpath and cycleway between points A and D |
| Wellington | Steps between points B and C |
| (1) | (2) |
|---|---|
| Parish | Way to be temporarily stopped up and reconstructed |
| Hadley and Leegomery | Between points F1 and F2 |
| Wrockwardine Wood and Trench | Between points N3, Q3, Q4 and Q5 |
| Wrockwardine Wood and Trench | Between points S3 and S4 |
| Wrockwardine Wood and Trench | Between points S5 and S6 |
Article 13(2)
| (1) | (2) | (3) |
|---|---|---|
| Purpose | Location | Number of land shown on land plans |
| Provision and maintenance of footpath/cycleway | Adjacent to Whitchurch Drive | 1A and 2A |
| Provision and maintenance of footpath/cycleway | Rear of Hurleybrook Way | 2B and 3 |
| Provision and maintenance of footpath/cycleway | Rear of Hurleybrook Way and Chockleys Drive | 4 |
| Provision and maintenance of footpath/cycleway | Rear of Chockleys Drive | 5, 6 and 7 |
| Provision and maintenance of footpath/cycleway | Adjoining unnamed turning off Britannia Way | 8 and 8A |
| Provision and maintenance of footpath/cycleway | Adjacent to Castle Lane | 9 |
| Provision and maintenance of footpath/cycleway | Adjacent to Trench Lock Interchange | 17A |
| Provision and maintenance of footpath/cycleway | Adjacent to Horton Road | 18A |
| Provision and maintenance of footpath/cycleway | South of A518 road | 22A |
| Construction and maintenance of Work No. 5 | Rear of Stanmore Drive and adjoining the allotment gardens | 28 |
| Construction and maintenance of acoustic fence | Adjacent to A518 road | 29 |
Article 14
1. The enactments for the time being in force with respect to compensation for the compulsory purchase of land shall 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 as they apply as respects compensation on the compulsory purchase of land and interests in land.
2.—(1) Without prejudice to the generality of paragraph 1, the Land Compensation Act 1973(1) shall have effect subject to the modifications set out in sub-paragraphs (2) and (3).
(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 4—
(a)for the words “land is acquired or taken” there shall be substituted the words “a right over land is purchased”; and
(b)for the words “acquired or taken from him” there shall be substituted the words “over which the right is exercisable”.
(3) In section 58(1) (determination of material detriment where part of house etc. proposed for compulsory acquisition), as it applies to determinations under section 8 of the 1965 Act as substituted by paragraph 5—
(a)for the word “part” in paragraphs (a) and (b) there shall be substituted the words “a right over land consisting”;
(b)for the word “severance” there shall be substituted the words “right over the whole of the house, building or manufactory or of the house and the park or garden”;
(c)for the words “part proposed” there shall be substituted the words “right proposed”; and
(d)for the words “part is” there shall be substituted the words “right is”.
3.—(1) The 1965 Act shall have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are 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
(b)the land over which the right is or is to be exercisable.
(2) Without prejudice to the generality of sub-paragraph (1), Part I of the 1965 Act shall apply in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.
4. For section 7 of the 1965 Act (measure of compensation) there shall be substituted the following section—
“7. In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right 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 his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”
5. For section 8 of the 1965 Act (which relates to cases in which a vendor cannot be required to sell part only of a building or garden) there shall be substituted the following—
“8.—(1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)—
(a)a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Lands Tribunal (“the tribunal”); and
(b)before the tribunal has determined that question the person satisfies the tribunal that he has an interest which he is able and willing to sell in the whole of the relevant land and—
(i)where that land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land, or
(ii)where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs,
the Telford Railfreight Terminal (Donnington) Order 2005 (“the Order”) shall, in relation to that person, cease to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice shall be deemed to have been served in respect of that interest on such date as the tribunal directs.
(2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section shall be determined by the tribunal.
(3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of six weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this sub-section prejudices any other power of the authority to withdraw the notice.”
6. 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),
shall be so modified 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 is vested absolutely in the acquiring authority.
7. Section 11 of the 1965 Act (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right, it has power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act shall be modified correspondingly.
8. Section 20 of the 1965 Act (protection for interests of tenants at will etc.) shall apply 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 in question.
9. Section 22 of the 1965 Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) shall be so modified 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, subject to compliance with that section as respects compensation.
Article 26
1.—(1) Sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers, etc. and power of statutory undertakers, etc. to remove or re-site apparatus) shall apply in relation to any land acquired or appropriated by the Council 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, which provide for the payment of compensation) shall have effect accordingly.
(2) In the provisions of the 1990 Act, as applied by sub-paragraph (1), references to the appropriate Minister are references to the Secretary of State.
(3) Where any apparatus of a code operator or public utility undertakers 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 sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the Council compensation in respect of expenditure reasonably incurred by him, 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) Sub-paragraph (3) shall 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,
shall be entitled to recover from the Council compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of making his drain or sewer communicate with any other public sewer or with a private sewage disposal plant.
(5) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which paragraph 2 or Part III of the Street Works Act applies.
(6) In this paragraph—
“code operator” means a provider of an electronic communications network in whose case the electronic communications code is applied by a direction under section 103 of the Communications Act 2003(2); and
“public utility undertakers” has the same meaning as in the Highways Act 1980(3).
2.—(1) Where a street is stopped up under article 10 of this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street shall have the same powers and rights in respect of that apparatus, subject to the provisions of this paragraph, as if this Order had not been made.
(2) Where a street is stopped up under article 10 of this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street may and, if reasonably requested so to do by the Council, shall—
(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it; or
(b)provide other apparatus in substitution for the existing apparatus and place it in such position as aforesaid.
(3) Subject to the following provisions of this paragraph, the Council shall pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—
(a)the execution of relocation works required in consequence of the stopping up of the street; and
(b)the doing of any other work or thing rendered necessary by the execution of relocation works.
(4) If in the course of the execution of relocation works under sub-paragraph (2)—
(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, except where this has been solely due to using the nearest currently available type; 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 of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the Council, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works 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 paragraph would be payable to the statutory utility by virtue of sub-paragraph (3) shall 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 shall not be treated as a 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 shall 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 a statutory utility in respect of works by virtue of sub-paragraph (3) (and having regard, where relevant, to sub-paragraph (4)) shall, 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 utility 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.
(7) Sub-paragraphs (3) to (6) shall not apply where the authorised works constitute major transport works for the purposes of Part III of the Street Works Act, but instead—
(a)the allowable costs of the relocation works shall be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) and any regulations for the time being having effect under that section; and
(b)the allowable costs shall be borne by the Council and the statutory utility in such proportions as may be prescribed by any such regulations.
(8) In this paragraph—
“apparatus” has the same meaning as in Part III of the Street Works Act;
“relocation works” means works executed, or apparatus provided, under sub-paragraph (2); and
“statutory utility” means a statutory undertaker for the purposes of the Highways Act 1980 or a code operator as defined in paragraph 1(6).
Article 27
1.—(1) For the protection of the undertakers referred to in this Part of this Schedule the following provisions shall, unless otherwise agreed in writing between the Council and the undertaker concerned, have effect.
(2) In this Part of this Schedule—
“alternative apparatus” means alternative apparatus adequate to enable the undertaker in question to fulfil their statutory functions in a manner not less efficient than previously;
“apparatus” means—
in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989(4) belonging to or maintained by that undertaker;
in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part I of the Gas Act 1986(5) for the purposes of gas transportation and storage; and
in the case of a water undertaker, mains, pipes or other apparatus belonging to or maintained by that undertaker for the purposes of water supply;
(not being apparatus in respect of which the relations between the Council and the undertakers are regulated by the provisions of Part III of the Street Works Act) 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
“plan” includes section, method statements, programmes and staging proposals;
“undertaker” means any of the following, namely, a licence holder within the meaning of Part I of the Electricity Act 1989, a gas transporter within the meaning of Part I of the Gas Act 1986 and a water undertaker within the meaning of the Water Industry Act 1991(6); and, in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.
(3) The provisions of Schedule 7 to this Order shall not apply in relation to apparatus to which this Part of this Schedule applies.
2.—(1) Where by reason of this Order any part of any highway in which any apparatus is situated ceases to be part of a highway an undertaker may exercise the same rights of access to such apparatus as it enjoyed immediately before the coming into force of this Order, and the Council shall grant to the undertaker legal easements satisfactory to the undertaker in respect of such apparatus and access thereto, but nothing in this paragraph shall affect any right of the Council or of the undertaker to require the removal of such apparatus under this Part of this Schedule or the power of the Council to execute works in accordance with paragraph 5(7) below.
(2) The Council shall give to the undertaker a minimum of 3 months' prior written notice in writing of its intention to stop up any street under article 10 of this Order.
3. Notwithstanding the temporary stopping up or diversion of any highway pursuant to article 12 of this Order, an undertaker shall be at liberty at all times to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain or use any apparatus which at the time of the stopping up or diversion was in that highway.
4. Notwithstanding anything in this Order or shown on the land or works plans the Council shall not acquire any apparatus otherwise than by agreement.
5.—(1) If, in the exercise of the powers of this Order, the Council acquire any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this Part of this Schedule and any right of an undertaker to maintain that apparatus in that land shall 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, the Council require the removal of any apparatus placed in that land, they shall 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 of this Order an undertaker reasonably needs to remove any of its apparatus) the Council shall, subject to sub-paragraph (3), afford to the undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the Council and thereafter for the maintenance of that apparatus.
(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the Council, or the Council are 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 shall, on receipt of a written notice to that effect from the Council, forthwith use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.
(4) The obligation imposed by sub-paragraph (3) shall not extend to the exercise by the undertaker of any power to acquire compulsorily any land or rights in land.
(5) Any alternative apparatus to be constructed in land of the Council under this Part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the undertaker in question and the Council or in default of agreement settled by arbitration pursuant to article 37.
(6) The undertaker in question shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 37, and after the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed with all reasonable dispatch to construct and bring into operation the alternative apparatus and thereafter to remove any apparatus required by the Council to be removed under the provisions of this Part of this Schedule.
(7) Notwithstanding anything in sub-paragraph (6), if the Council gives notice in writing to the undertaker in question that they desire themselves to execute any part of so much of the work necessary in connection with the construction of the alternative apparatus, or the removal of the apparatus required to be removed, as will take place in any land of the Council, that work, may, with the prior written consent of the undertaker (which shall not be unreasonably withheld or delayed and shall be subject to such conditions as are reasonable and proper to protect the apparatus), and, if the consent is obtained, shall be executed by the Council with all reasonable dispatch under the superintendence, if given, and to the reasonable satisfaction of the undertaker.
(8) Nothing in sub-paragraph (7) shall authorise the Council to execute the actual 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 or where the apparatus is that of a gas transporter and is operating or is capable of operating at or in excess of 7 bar pressure, within 1500 mm of the apparatus.
6.—(1) Where, in accordance with the provisions of this Part of this Schedule, the Council afford to an undertaker facilities and rights for the construction, and maintenance, in land of the Council of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the Council and the undertaker in question or in default of agreement settled by arbitration in accordance with article 37.
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along any railway of the Council, the arbitrator shall—
(a)give effect to all reasonable requirements of the Council 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 the Council 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 applicable to the apparatus, if any, 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 the Council 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 shall make such provision for the payment of compensation by the Council to that undertaker as appears to him to be reasonable having regard to all the circumstances of the particular case.
7.—(1) Not less than 56 days before commencing 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 the Council under paragraph 5(2), the Council shall submit to the undertaker in question a plan of the works to be executed.
(2) Those works shall 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 thereto, and the undertaker shall be entitled by its officer to watch and inspect the execution of those works.
(3) Any requirements made by an undertaker under paragraph (2) shall be made within a period of 42 days beginning with the date on which a plan under paragraph (1) are submitted to it.
(4) If an undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the Council, reasonably require the removal of any apparatus and give written notice to the Council of that requirement, the foregoing provisions of this Part of this Schedule shall apply as if the removal of the apparatus had been required by the Council under paragraph 5(2).
(5) Nothing in this paragraph shall preclude the Council 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 in lieu of the plan previously submitted, and thereupon the provisions of this paragraph shall apply to and in respect of the new plan.
(6) The Council shall not be required to comply with sub-paragraph (1) in a case of emergency but in that case it shall give to the undertaker in question notice as soon as is reasonably practicable and a plan of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.
8.—(1) Subject to the following provisions of this paragraph, the Council shall 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) including for the avoidance of doubt the acquisition of any facilities or rights under paragraph 5(3).
(2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.
(3) If in pursuance of 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, except where this has been solely due to using the nearest currently available type;
(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 of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the Council or, in default of agreement, is not determined by 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 paragraph would be payable to the undertaker in question by virtue of sub-paragraph (1), shall be reduced by the amount of that excess.
(4) For the purposes of sub-paragraph (3)—
(a)an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a 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 shall be treated as if it also had been agreed or had been so determined.
(5) An amount which apart from this sub-paragraph would be payable to an undertaker in respect of works by virtue of sub-paragraph (1) shall, 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 as calculated in accordance with the code of practice entitled “Measures Necessary Where Apparatus is Affected by Major Works (Diversionary Works)” and dated June 1992 and approved by the Secretary of State on 30 June 1992.
9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works as are 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, the Council shall—
(a)bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply, and
(b)indemnify the undertaker against all claims, demands, proceedings, costs, damages or expenses which may be made against or recovered from or incurred by it,
by reason or in consequence of any such damage or interruption.
(2) Nothing in sub-paragraph (1) shall impose any liability on the Council 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 shall give the Council reasonable notice of any such claim or demand and no settlement or compromise shall be made without the consent of the Council which, if it withholds such consent, shall have 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 shall affect the provisions of any enactment or agreement regulating the relations between the Council and an undertaker in respect of any apparatus laid or erected in land belonging to the Council on the coming into force of this Order.
11.—(1) For the protection of telecommunications operators the following provisions shall, unless otherwise agreed in writing between the Council and the telecommunications operators concerned, have effect.
(2) In this Part of this Schedule expressions defined in the Communications Act 2003 have the same meanings as in that Act.
12. The temporary stopping up or diversion of any highway under article 12 of this Order shall not affect any right of a code operator under the electronic communications code to inspect, maintain, adjust, repair or alter any apparatus which, at the time of the stopping up or diversion, is in that highway.
13.—(1) For the protection of sewerage undertakers the following provisions shall, unless otherwise agreed in writing between the Council and the sewerage undertaker concerned, have effect.
(2) In this Part of this Schedule—
“construction” includes placing or altering; and “constructed” shall be construed accordingly;
“sewer” means a public sewer within the meaning of the Water Industry Act 1991(7) and includes a disposal main within the meaning of that Act and any manholes, ventilating shafts, pumps or accessories forming part of any such sewer;
“specified work” means so much of the authorised works as will or may be situated over or within 15 metres measured in any direction of, or (wherever situated) impose any load directly upon, any sewer; and
“the undertaker” means the sewerage undertaker for the area of the works or whose sewers are affected.
(3) The provisions of Schedule 7 to this Order shall not apply in relation to apparatus to which this Part of this Schedule applies.
14.—(1) Before commencing the construction or renewal of any specified work and in the case of any temporary work its removal the Council shall submit to the undertaker plans of the work as described in sub-paragraph (2) (“the plans”) and shall not commence that work until the undertaker has signified in writing its approval of those plans.
(2) The plans to be submitted to the undertaker shall be detailed plans, drawings, sections and specifications describing the position and manner in which, and the level at which, any specified work is proposed to be constructed and the position of all sewers of the undertaker within 15 metres of that work or upon which the specified work will impose a load and shall include detailed drawings of every alteration which the Council may propose to any such sewers.
(3) For the purpose of the preparation of the plans and subject to such reasonable requirements as it may specify, the undertaker shall permit the Council to have access to plans in its possession and to any of its sewers.
(4) Any approval of the undertaker required under this paragraph—
(a)may be given subject to reasonable conditions,
(b)shall not be unreasonably withheld, and
(c)shall be deemed to have been given if it is neither given nor refused within 56 days of the submission of plans for approval.
(5) The undertaker may require such modifications to be made to the plans as may be reasonably necessary to secure the sewerage system of the undertaker against interference or risk of damage and to provide and secure proper and convenient means of access to any sewer.
15.—(1) The specified work shall be constructed and in the case of any temporary work removed in accordance with the plans approved, or deemed to have been approved, or settled by arbitration, as the same may be amended from time to time by agreement between the Council and the undertaker, and in the construction or removal of any specified work the Council shall comply with all reasonable requirements of the undertaker and shall provide new, altered or substituted sewers or works for the protection of any sewers of the undertaker, in such manner as the undertaker may reasonably require, by way of replacement provision for or for the proper protection of, and for preventing injury or impediment to, any such sewer by reason of any specified work.
(2) All works under sub-paragraph (1) for the provision of new, altered or substituted sewers or the protection of any sewers of the undertaker shall, where so required by the undertaker, be constructed by the undertaker or under the supervision (if given) of an officer of the undertaker duly appointed for the purpose, and all costs, charges and expenses reasonably incurred by the undertaker in the construction of such works, or in the preparation or examination of plans or designs of such works, or in such supervision, shall be paid to the undertaker by the Council.
(3) When works for the provision of any such new, altered or substituted sewer, or any such protective work forming part of any such new, altered or substituted sewer or any existing sewer of the undertaker, have been completed under this Part of this Schedule to the reasonable satisfaction of the undertaker, they shall be vested in and become maintainable by the undertaker.
16.—(1) Subject to the following provisions of this Part of this Schedule, the Council shall be liable to make good, or, if the undertaker so decides, to repay to the undertaker any expense reasonably incurred by the undertaker in making good, all injury or damage to any sewers, drains or works vested in the undertaker (except in so far as such sewer, drain or work is intended for alteration or removal for the purposes of the specified work) caused by or resulting from the construction of any specified work or any investigation undertaken in respect of any specified work and the provision of any new, altered or substituted sewer or any protective work under this Part of this Schedule and shall pay the undertaker any additional expense to which it may be put in the maintenance, management or renewal of any new, altered or substituted sewer which may be necessary in consequence of the construction of any specified work.
(2) The Council shall indemnify the undertaker against all actions, claims, demands, costs, expenses, damages or loss which may be made on or against the undertaker which the undertaker may incur or have to pay or which it may sustain in consequence of the construction of any specified work or of the failure or want of repair of a specified work or any subsidence caused by the construction of any specified work or in consequence of any act or omission of the Council, its contractors, agents, workmen or servants, whilst engaged upon any specified work and any new, altered or substituted sewer or any protective work.
(3) The undertaker shall give to the Council reasonable notice of any such claim or demand as aforesaid and no settlement or compromise thereof shall be made without the agreement in writing of the Council.
(4) Nothing in sub-paragraph (1) or (2) shall impose any liability on the Council in respect of any damage to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, or, if not the Council, its contractors or agents.
(5) If in pursuance of the provisions of this Part of this Schedule—
(a)a sewer of better type, of greater capacity or of greater dimensions is placed in substitution for an existing sewer of worse type, of smaller capacity or of smaller dimensions, except where this has been solely due to using the nearest currently available type, or
(b)a sewer (whether an existing sewer or a sewer substituted for an existing sewer) is placed at a depth greater than the depth at which the existing sewer was,
and the placing of a sewer of that type or capacity or of those dimensions or the placing of a sewer at that depth, as the case may be, is not agreed by the Council or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves costs in the construction of works under this Part of this Schedule exceeding that which would have been involved if the sewer 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 paragraph would be payable to the undertaker by virtue of sub-paragraph (1) shall be reduced by the amount of that excess.
(6) For the purposes of sub-paragraph (5) an extension of a sewer to a length greater than the length of an existing sewer shall not be treated as a placing of a sewer of greater dimensions than those of the existing sewer.
(7) An amount which apart from this sub-paragraph would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) (and having regard, where relevant, to sub-paragraph (5)) shall, if the works include the placing of a sewer provided in substitution for a sewer 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 sewer in the ordinary course, be reduced by the amount which represents that benefit.
(8) Sub-paragraphs (1) and (5) to (7) shall not apply where the authorised works constitute major transport works for the purposes of Part III of the Street Works Act, but instead—
(a)the allowable costs of the construction of works under this Part of this Schedule shall be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) and any regulations for the time being having effect under that section; and
(b)the allowable costs shall be borne by the Council and the undertaker in such proportions as may be prescribed by any such regulations.
17.—(1) An officer of the undertaker duly appointed for the purpose may, at any reasonable time and, if required by the Council, under its supervision and control, enter upon and inspect any specified work or any other works constructed under this Part of this Schedule.
(2) The approval by the undertaker of any plans, drawings, sections or specifications or the supervision by it of any work under this Part of this Schedule shall not (if it was done without negligence on the part of the undertaker, its officers, servants, or, if not the Council, its contractors or agents) exonerate the Council from any liability or affect any claim for damages by the undertaker.
18. Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 12 of this Order, the undertaker shall be at liberty at all times to construct and do all such works and things in, upon or under any such highway as may be reasonably necessary to enable it to maintain, protect or use any sewer which at the time of the stopping up or diversion was in that highway.
19. As soon as reasonably practicable after the completion of the construction of the specified work, the Council shall deliver to the undertaker a plan and section showing the position and level of that work as constructed and all new, altered or substituted works provided under this Part of this Schedule.
Article 28
1.—(1) The following provisions of this Schedule shall, unless otherwise agreed in writing between the Council and the company, have effect—
(2) In this Schedule—
“the company” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 736 of the Companies Act 1985) 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;
“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have shall be construed accordingly;
“the engineer” means an engineer appointed by the company for the purpose in question;
“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail by the Secretary of State in exercise of his powers under section 8 of the Railways Act 1993;
“plans” includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals and programmes and details of the extent, timing and duration of any proposed occupation of railway property;
“railway property” means any railway, station, works, apparatus and equipment belonging to the company and includes:
any land held or used by the company; and
any easement or other property interest held by or for the benefit of the company;
for the purposes of any such railway, station, works, apparatus or equipment;
“specified work” means so much of the authorised works as is situated upon, across, under, over or within 15 metres of, or may in any way affect, railway property;
“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.
2.—(1) The Council shall not under the powers conferred by this Order acquire or use or acquire new rights over any railway property unless such acquisition or use is with the consent of the company.
(2) Without prejudice to any requirement as to fencing made by the company under paragraph 3(5) on approval of plans, the Council shall provide and maintain, to the reasonable satisfaction of the engineer, a boundary fence incorporating gates where appropriate between railway property and any adjoining land of the Council acquired or appropriated for the purpose of Work No. 1.
(3) The Council shall not exercise the powers conferred by article 9 or the powers conferred by section 11(3) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of the company.
(4) The Council shall not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of the company.
(5) The Council shall not exercise the powers conferred by sections 271 or 272 of the 1990 Act, as applied by Schedule 7 to this Order, in relation to any right of access of the company to railway property but such right of access may be diverted with the consent of the company.
(6) Where the company is asked to give its consent pursuant to sub-paragraph (3), (4), or (5), or to give its consent to the acquisition of new rights over or the use of railway property under sub-paragraph (1), such consent shall not be unreasonably withheld but may be given subject to reasonable conditions.
3.—(1) The Council shall before commencing construction of any specified work supply to the company proper and sufficient plans of that work for the reasonable approval of the engineer and shall not commence such construction of the specified work until plans of that work have been approved in writing by the engineer or settled by arbitration.
(2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld, and if by the end of the period of 56 days beginning with the date on which such plans have been supplied to the company the engineer has not intimated his disapproval of those plans and the grounds of his disapproval he shall be deemed to have approved the plans as submitted.
(3) If by the end of the period of 56 days beginning with the date on which such plans have been supplied to the company, the company gives notice to the Council that the company desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of the company then, if the Council desires such part of the specified work to be constructed, the company shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the Council in accordance with the plans approved or deemed to be approved or settled under this paragraph and under the supervision (where appropriate and if given) of the Council.
(4) When signifying his approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in his opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of the company or the services of train operators using the same (including any relocation, decommissioning and removal of works, apparatus and equipment necessitated by specified work and the comfort and safety of passengers who may be affected by the specified work), and such protective works as may be reasonably necessary for those purposes shall be constructed by the company or by the Council, if the company so desires, such protective works shall be carried out by the Council at its own expense with all reasonable dispatch and the Council shall not commence the construction of specified work until the engineer has notified the Council that the protective works have been completed to his reasonable satisfaction.
4.—(1) Any specified work and any protective work to be constructed by virtue of paragraph 3(4) above shall when constructed be constructed—
(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 3(1) above;
(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;
(c)in such manner as to cause as little damage as is possible to railway property; and as little interference as may be with the conduct of traffic on the railways of the company;
and, if any damage to railway property on any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the Council shall, notwithstanding any such approval, make good such damage and shall pay to the company all reasonable expenses to which the company may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.
(2) The Council shall give to the engineer not less than 90 days' notice of its intention to commence the construction of a specified work and shall give, except in emergency (when it shall give such notice as may be reasonably practicable), 90 days' notice of its intention to carry out any works for the maintenance or repair of a specified work in so far as such work of repair or maintenance may affect railway property.
5.—(1) The Council shall—
(a)at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and
(b)supply the engineer with all such information as he may reasonably require with regard to a specified work or the method of constructing it.
6. The company shall at all times afford reasonable facilities to the Council and its agents for access to any works carried out by the company under this Schedule during their construction and shall supply the Council with such information as it may reasonably require with regard to such works or the method of constructing them.
7.—(1) If any alterations or additions, either permanent or temporary, to railway property are reasonably necessary during the construction of a specified work or any protective works under paragraph 3(4) above, or during a period of 12 months after the commencement of regular revenue-earning train operations using the new railways comprised in any specified work, in consequence of the construction of a specified work, such alterations and additions may be carried out by the company and if the company gives the Council reasonable notice of its intentions to carry out such alterations and additions, the Council shall pay to the company the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by the company in maintaining, working and, when necessary, renewing any such alterations or additions.
(2) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions referred to in paragraph 7(1) above a capitalised sum representing such saving shall be set off against any sum payable by the Council to the company under this paragraph.
8. The Council shall repay to the company all reasonable fees, costs, charges and expenses reasonably incurred by the company—
(a)in constructing any part of a specified work on behalf of the Council as provided by paragraph 3(3) or in constructing any protective works under the provisions of paragraph 3(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works; and
(b)in respect of the approval by the engineer of plans submitted by the Council and the supervision by him of the construction of a specified work.
9.—(1) In this paragraph—
“EMI” means, subject to paragraph (2), electromagnetic interference with the company’s apparatus generated by the operation of the authorised works (including the operation of trains using the new railways comprised in the works) where such interference is of a level which adversely affects the safe operation of the company’s apparatus; and
“the company’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the works) which are owned or used by the company for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.
(2) This paragraph shall apply to EMI only to the extent that such EMI is not attributable to any change to the company’s apparatus carried out after approval of plans under paragraph 3(1) for the relevant part of the authorised works giving rise to EMI (unless the Council has been given notice in writing before the approval of those plans of the intention to make such change), other than any change carried out by the company as part of or in consequence of the authorised works.
(3) Subject to sub-paragraph (5), the Council shall in the design and construction of the authorised works take all measures necessary to prevent EMI and shall establish with the company (both parties acting reasonably) appropriate arrangements to verify their effectiveness.
(4) In order to facilitate the Council’s compliance with sub-paragraph (3)—
(a)the Council shall consult with the company as early as reasonably practicable to identify all the company’s apparatus which may be at risk of EMI, and thereafter shall continue to consult with the company (both before and after formal submission of plans under paragraph 3(1)) to identify all potential causes of EMI and the measures required to eliminate them;
(b)the company shall make available to the Council all information in the company’s possession reasonably requested by the Council in respect of the company’s apparatus identified pursuant to paragraph (a);
(c)the company shall allow the Council reasonable facilities for the inspection of the company’s apparatus pursuant to paragraph (a).
(5) In any case where it is established that EMI can only reasonably be prevented by modifications to the company’s apparatus, the company shall not withhold its consent unreasonably to modifications of the company’s apparatus, but the means of prevention and the method of their execution shall be selected in the company’s reasonable discretion and in relation to such modifications paragraph 3(1) shall have effect subject to this sub-paragraph.
(6) If at any time prior to the commencement of regular revenue-earning train operations on the new railways comprised in the authorised works and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then the Council shall immediately upon receipt of notification by the company of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the Council’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to the company’s apparatus.
(7) In the event of EMI having occurred—
(a)the Council shall afford reasonable facilities to the company for access to the Council’s apparatus in the investigation of such EMI;
(b)the company shall afford reasonable facilities to the Council for access to the company’s apparatus in the investigation of such EMI; and
(c)the company shall make available to the Council any additional material information in its possession reasonably requested by the Council in respect of the company’s apparatus or such EMI.
(8) Where the company approves modifications to the company’s apparatus pursuant to sub-paragraphs (5) or (6)—
(a)the company shall allow the Council reasonable facilities for the inspection of the relevant part of the company’s apparatus;
(b)any modifications to the company’s apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the Council in accordance with paragraph 4.
(9) To the extent that it would not otherwise do so, the indemnity in paragraph 13(1) shall apply to the costs and expenses reasonably incurred or losses suffered by the company through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to the company’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.
(10) For the purpose of paragraph 8(a) any modifications to the company’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.
(11) In relation to any dispute arising under this paragraph the reference in article 37 to the Institution of Civil Engineers shall be read as a reference to the Institution of Electrical Engineers.
10. If at any time after the completion of a specified work, not being a work vested in the company, the company gives notice to the Council informing it that the state of maintenance of the specified work appears to be such as adversely affects the operation of railway property, the Council shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.
11. The Council shall not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to the company unless it shall have first consulted the company and it shall comply with the company’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.
12. Any additional expenses which the company may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days' previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the Council, be repaid by the Council to the company.
13.—(1) The Council shall pay to the company all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by the company—
(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 Council or of any person in its employ or of its contractors or others whilst engaged upon a specified work;
and the Council shall indemnify the company 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 the company on behalf of the Council or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision shall not (if it was done without negligence on the part of the company or of any person in its employ or of its contractors or agents) excuse the Council from any liability under the provisions of this schedule.
(2) The company shall give the Council reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior consent of the Council.
(3) The sums payable by the Council under sub-paragraph (1) shall include a sum equivalent to the relevant costs.
(4) Subject to the terms of any agreement between the company and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, the company shall promptly pay to each train operator the amount of any sums which the company receives under sub-paragraph (3) which relates to the relevant costs of that train operator.
(5) The obligation under sub-paragraph (3) to pay the company the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).
(6) In this paragraph “the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of the company’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).
14. In the assessment of any sums payable to the company under this Schedule there shall not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by the company if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the Council under this Schedule or increasing the sums so payable.
15. The Council and the company may enter into, and carry into effect, agreements for the transfer to the Council of—
(a)any railway property shown on the land or works plans and described in the book of reference;
(b)any lands, works or other property held in connection with any such railway property; and
(c)any rights and obligations (whether or not statutory) of the company.
Article 29
1.—(1) The following provisions shall apply for the protection of the Environment Agency unless otherwise agreed in writing between the Council and the Environment Agency.
(2) In this Schedule—
“damage” shall include scouring, erosion and environmental damage and “damaged” shall be construed accordingly;
“construction” shall include execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” shall be construed accordingly;
“drainage work” shall mean any watercourse and includes any land which 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 or flood defence;
“the fishery” shall mean any waters containing fish and fish in, or migrating to or from such waters and the spawn, habitat or food of such fish;
“plans” shall include sections, drawings, specifications and method statements;
“specified work” shall mean so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a watercourse or is otherwise likely to—
affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work;
affect the flow, purity or quality of water in any watercourse or other surface waters or ground water;
cause obstruction to the free passage of fish or damage to any fishery; or
affect the conservation, distribution or use of water resources; and
“watercourse” shall include all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows (whether or not the flow is intermittent) except a public sewer.
2.—(1) Before beginning to construct any specified work, the Council shall submit to the Environment Agency plans of the work and such further particulars available to it as the Environment Agency may within 28 days of the submission of the plans reasonably require.
(2) Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the Environment Agency, or determined under paragraph 12.
(3) Any approval of the Environment Agency required under this paragraph—
(a)shall not be unreasonably withheld;
(b)shall be deemed to have been given if it is neither given nor refused in writing within two 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 Environment Agency may make for the protection of any drainage work or fishery or for the protection of water resources, or for the prevention of flooding or pollution and in the discharge of its environmental and recreational duties.
3. Without prejudice to the generality of paragraph 2, the requirements which the Environment Agency may make under that paragraph include conditions requiring the Council 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.
4.—(1) Any specified work, and all protective works required by the Environment Agency under paragraph 3, shall be constructed—
(i)with all reasonable despatch in accordance with the plans approved or deemed to have been approved or settled under this Schedule; and
(ii)to the reasonable satisfaction of the Environment Agency, and the Environment Agency shall be entitled by its officer to watch and inspect the construction of such works.
(2) The Council shall give to the Environment 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 the works comprising a structure in, over or under a drainage work is constructed otherwise than in accordance with the requirements of this Schedule, the Environment Agency may by notice in writing require the Council, at the Council’s own expense, to comply with the requirements of this Schedule or (if the Council so elects and the Environment Agency in writing consents, such consent not to be unreasonably withheld) 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 Environment Agency reasonably requires.
(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 the Council, it has failed to begin taking steps to comply with the requirements of the notice and thereafter to make reasonably expeditious progress towards their implementation, the Environment Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from the Council.
(5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which a notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Environment Agency shall not except in emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.
5.—(1) The Council shall 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 the Council for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers of the Order or is already in existence.
(2) If any such work which the Council is liable to maintain is not maintained to the reasonable satisfaction of the Environment Agency, the Environment Agency may by notice in writing require the Council to repair and restore the work, or any part thereof, or (if the Council so elects and the Environment Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site to its former condition, to such extent and within such limits as the Environment Agency reasonably requires.
(3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any work is served under sub-paragraph (2) on the Council, the Council has failed to begin taking steps to comply with the reasonable requirements of the notice and has not thereafter made reasonably expeditious progress towards their implementation, the Environment Agency may do anything necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from that person.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the Environment Agency shall not, except in a case of an emergency, exercise the powers of sub-paragraph (3) above until the dispute has been finally determined.
6. 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 work is otherwise damaged, such impairment or damage shall be made good by the Council to the reasonable satisfaction of the Environment Agency and if the Council fails to do so, the Environment Agency may make good the same and recover from the Council the expense reasonably incurred by it in so doing.
7.—(1) The Council shall take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in any fishery during the construction of any specified work.
(2) If by reason of—
(i)the construction of any specified work, or
(ii)the failure of any such work,
damage to the fishery is caused, or the Environment Agency has reason to expect that such damage may be caused, the Environment Agency may serve notice on the Council 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) If, within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Environment Agency of any damage or expected damage to the fishery, the Council fails to take such steps as are described in sub-paragraph (2), the Environment Agency may take those steps and may recover from the Council the expense reasonably incurred by it in doing so.
(4) In any case where immediate action by the Environment Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Environment Agency may take such steps as are reasonable for the purpose, and may recover from the Council the reasonable cost of so doing provided that a notice specifying those steps is served on the Council as soon as is reasonably practicable after the Environment Agency has taken, or commenced to take, the steps specified in the notice.
8. The Council shall indemnify the Environment Agency in respect of all costs, charges and expenses which the Environment Agency may reasonably incur or have to pay or which it may sustain—
(a)in the examination or approval of plans under this Schedule;
(b)in the inspection of the construction of the specified works or any protective works required by the Environment Agency under this Schedule.
9.—(1) Without prejudice to the other provisions of this Schedule, the Council shall indemnify the Environment Agency from all claims, demands, proceedings, costs, damages or expenses or loss, which may be made or taken against, or recovered from or incurred by the Environment 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 works authorised by this Order 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, or results from, the construction of any of the works or any act or omission of the Council, its contractors, agents or employees whilst engaged upon the work.
(2) The Environment Agency shall give to the Council reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of the Council which agreement shall not be unreasonably withheld.
10. The fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the Environment Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve the Council from any liability under the provisions of this Schedule.
11. For the purposes of Chapter II of Part II of the Water Resources Act 1991 (abstraction and impounding of water) and section 109 of that Act (as to structures in, over or under watercourses) as applying to the construction of any specified work, any consent or approval given or deemed to be given by the Environment Agency under this Schedule with respect to such construction shall be deemed also to constitute an impounding licence under that Chapter or, as the case may be, approval under that section, and the Council shall not be obliged to serve any notice which would otherwise be required by section 30 of the said Act of 1991 (which relates to the construction of boreholes and similar works in respect of which a licence is not required).
12. Any dispute arising between the Council and the Environment Agency under this Schedule (other than a difference as to its meaning or construction) shall, if the parties agree, be determined by arbitration, but shall otherwise 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 the Council or the Environment Agency, after notice in writing by one to the other.
1986 c. 44. A new section 1 was substituted by section 5 of the Gas Act 1995 c. 45 and was further amended by section 76 of the Utilities Act 2000 c. 27.