Made | 12th February 2004 | ||
Coming into force | 4th March 2004 |
1. | Citation and commencement |
2. | Interpretation |
3. | Incorporation of Railways Clauses Consolidation Act 1845 |
4. | Power to construct and maintain certain works |
5. | Power to construct and maintain ancillary works |
6. | Power to deviate |
7. | Replacement of road level crossing |
8. | Replacement of footpath level crossings |
9. | Accommodation crossings |
10. | Power to execute street works |
11. | Permanent stopping up of streets and extinguishment of rights |
12. | Temporary stopping up of streets |
13. | Temporary parking restrictions |
14. | Access to works |
15. | Construction and maintenance of new or altered streets |
16. | Construction of bridges and tunnels |
17. | Agreements with street authorities |
18. | Temporary closure of part of Coventry Canal |
19. | Discharge of water |
20. | Protective works to buildings |
21. | Power to survey and investigate land |
22. | Power to acquire land |
23. | Application of Part I of Compulsory Purchase Act 1965 |
24. | Power to acquire new rights |
25. | Power to acquire subsoil only |
26. | Cases where powers of acquisition limited to soil nailing rights |
27. | Rights under streets |
28. | Temporary use of land for construction of works |
29. | Disregard of certain interests and improvements |
30. | Acqisition of part only of certain properties |
31. | Extinction or suspension of private rights of way |
32. | Time limit for exercise of powers of acquisition |
33. | Defence to proceedings in respect of statutory nuisance |
34. | Certain land to be treated as operational land |
35. | Maintenance of approved works etc. |
36. | Public open space and common land |
37. | Disclosure of confidential information |
38. | Saving for regulated rights etc. |
39. | Statutory undertakers etc. |
40. | Protective provisions |
41. | Certification of plans etc. |
42. | Service of notices |
43. | No double recovery |
44. | Arbitration |
1 | Scheduled works |
2 | Additional works and lands |
3 | Replacement of road level crossing |
4 | Replacement of footpath level crossings |
Level crossings for which a substitute is to be provided |
5 | Streets subject to street works |
6 | Streets to be permanently stopped up |
Part I Streets for which a substitute is to be provided |
Part II Streets for which no substitute is to be provided |
7 | Streets to be temporarily stopped up |
8 | Access to works |
9 | Modification of compensation and compulsory purchase enactments for creation of new rights |
10 | Land in respect of which soil nailing rights may be acquired |
11 | Land of which temporary possession may be taken or use made |
12 | Provisions relating to statutory undertakers etc. |
13 | Protective provisions |
Part I Protection for electricity, gas and water undertakers |
Part II Protection for operators of an electronic communications code network |
Part III Protection for sewerage undertakers |
Part IV Protection for land drainage, flood defence, water resources and fisheries |
Part V Protection for British Waterways Board |
(2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in or on land or in the air-space over its surface.
(3) All directions, distances and lengths stated in any description of works, powers or lands shall be construed as if the words "or thereabouts" were inserted after each such direction, distance and length and distances beween points on a railway shall be taken to be measured along the railway.
(4) Any reference in this Order to a work identified by the number of the work shall be construed as a reference to the work of that number authorised by this Order.
(5) Any reference in this Order to a point identified by a letter and number shall be construed as a reference to the point so lettered and numbered on the deposited plans.
(6) References in this Order to reference points shall be construed as references to Ordnance Survey National Grid reference points.
(7) References in this Order to highways lettered FP or BR are references respectively to footpaths or bridleways.
Incorporation of Railways Clauses Consolidation Act 1845
3.
- (1) The following provisions of the Railways Clauses Consolidation Act 1845[13] shall be incorporated in this Order -
(2) In those provisions, as incorporated in this Order -
(3) Section 24 of the said Act of 1845, as incorporated in this Order, shall have effect as if the maximum fine which may be imposed on summary conviction for an offence under that section were instead of a fine not exceeding level 2 on the standard scale, a fine not exceeding level 3 on the standard scale.
(2) Subject to paragraph (3), Network Rail may carry out and maintain such other works (of whatever nature) as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the authorised works.
(3) Paragraphs (1) and (2) -
(4) Any power authorised by paragraph (1)(c) which affects a highway shall not be exercised without the written consent of the relevant highway authority, but such consent shall not be unreasonably withheld.
(5) Network Rail may within the Order limits -
Power to deviate
6.
- (1) In constructing or maintaining any of the scheduled works, Network Rail may -
(2) In constructing or maintaining the temporary vehicular bridges referred to in article 28(2), Network Rail may deviate vertically from the levels shown on the deposited sections -
Replacement of road level crossing
7.
- (1) Subject to paragraph (3), the level crossing specified in columns (1) and (2) of Schedule 3 to this Order shall be stopped up and discontinued.
(2) Subject to paragraph (3) and paragraph 2 of Schedule 12 to this Order, upon the stopping up and discontinuance of the level crossing referred to in paragraph (1), any right of way over the part of the street specified in relation to it in column (3) of Schedule 3 to this Order shall be extinguished.
(3) Paragraphs (1) and (2) shall not take effect with respect to the level crossing until the accommodation works specified in relation to it in column (4) of Schedule 3 to this Order have been completed to the reasonable satisfaction of the street authority and are open for use.
(4) Any person who suffers loss by the extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
Replacement of footpath level crossings
8.
- (1) Subject to paragraph (3), each specified footpath shall be stopped up and discontinued.
(2) Subject to paragraph (3) and paragraph 2 of Schedule 12 to this Order, upon the stopping up and discontinuance of a specified footpath, any right of way over it shall be extinguished.
(3) Paragraphs (1) and (2) shall not take effect with respect to a footpath specified in columns (1) and (3) of Schedule 4 to this Order until the footpath specified in relation to it in column (4) of that Schedule is open for use in accordance with the reasonable requirements of the highway authority.
(4) In providing the footpaths specified in column (4) of Schedule 4 to this Order, Network Rail may within the Order limits erect barriers and signs and carry out or provide any ancillary works or conveniences, subject to the agreement of the highway authority which agreement shall not be unreasonably withheld.
(5) Any person who suffers loss by the extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(6) In this article "specified footpath" means any of the footpaths or lengths of footpath specified in columns (1) and (3) of Schedule 4 to this Order which are crossed on the level by Network Rail's railway at the level crossings specified in column (2) of that Schedule.
Accommodation crossings
9.
- (1) Subject to paragraphs (3) and (4) and notwithstanding anything in section 68 of the Railways Clauses Consolidation Act 1845 as incorporated in the Trent Valley Railway Act 1845[15] or any other enactment or instrument, all private rights of way (if any) across the West Coast Main Line railway by means of the accommodation facilities in the district of Lichfield, in the county of Staffordshire, specified in paragraph (2), shall be extinguished.
(2) The accommodation facilities referred to in paragraph (1) are -
(3) Paragraph (1) shall not take effect with respect to the extinguishment of the private rights of way by means of the level crossing specified in paragraph (2)(a) until the alternative accommodation access has been provided.
(4) Paragraph (1) shall not take effect with respect to the extinguishment of the accommodation crossings specified in paragraph (2)(b) and (c) until Work Nos. 9 and 9A have been completed.
(5) Any person who suffers loss by the extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(6) In this article, "alternative accommodation access" means the acccess to be provided, specified in column (3) of Schedule 2 to this Order, on the land numbered 248 on the deposited plans in the borough of Tamworth, in the county of Staffordshire and on the land numbered 2, 5 and 8 in the district of Lichfield.
(2) This article is subject to paragraph 3 of Schedule 12 to this Order.
(3) In this article "apparatus" has the same meaning as in Part III of the Street Works Act.
Permanent stopping up of streets and extinguishment of rights
11.
- (1) Subject to the provisions of this article, Network Rail may, in connection with the construction of the authorised works, permanently stop up each of the streets specified in columns (1) and (2) of Parts I and II of Schedule 6 to this Order to the extent specified in column (3) of those Parts of that Schedule.
(2) Subject to paragraph (5), no street specified in columns (1) and (2) of Part I of Schedule 6 to this Order shall be wholly or partly stopped up under this article unless -
(3) No street specified in columns (1) and (2) of Part II of Schedule 6 to this Order shall be wholly or partly stopped up under this article unless the condition specified in paragraph (4) is satisfied in relation to all the relevant land; and for this purpose "relevant land" means any land which abuts on either side of the street to be stopped up.
(4) The condition referred to in paragraph (3) is that -
(5) In the case of the stopping up of footpath FP 1R/2293 between points F9 and F10 -
(6) Where a street has been permanently stopped up under this article -
(7) Any person who suffers loss by the extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(8) This Article is subject to paragraph 2 of Schedule 12 to this Order and is without prejudice to articles 7 and 8.
Temporary stopping up of streets
12.
- (1) Network Rail, during and for the purposes of the execution of the authorised works, may temporarily stop up, alter or divert any street and may for any reasonable time -
(2) Without prejudice to the generality of paragraph (1), Network Rail may use any street stopped up under the powers of this article as a temporary working site.
(3) Network Rail shall provide reasonable access for pedestrians going to or from premises abutting on a street affected by the exercise of the powers conferred by this article if there would otherwise be no such access.
(4) Without prejudice to the generality of paragraph (1), Network Rail may exercise the powers conferred by this article in relation to the streets specified in columns (1) and (2) of Schedule 7 to this Order within the Order limits.
(5) Network Rail shall not exercise the powers conferred by this article -
(6) The provisions of the Street Works Act mentioned in paragraph (7), and any regulations made, or code of practice issued or approved under, those provisions shall apply (with the necessary modifications) in relation to the stopping up, alteration or diversion of a street by Network Rail under the powers conferred by this article where no street works are executed in that street as they would apply if the stopping up, alteration or diversion were occasioned by street works executed in that street by Network Rail.
(7) The provisions of the Street Works Act referred to in paragraph (6) are -
(8) Any person who suffers loss by the suspension of a private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
Temporary parking restrictions
13.
- (1) Subject to the provisions of this article, Network Rail may prohibit or restrict the waiting or the loading or unloading of vehicles on the specified roads for the purpose of enabling or facilitating access over those roads by vehicles used in the construction of Work Nos. 1 and 2.
(2) A prohibition or restriction under paragraph (1) shall apply for such period of time as shall be determined by Network Rail to be necessary for the purposes of the construction of Work Nos. 1 and 2 and may apply at all times during that period or at such times, on such days or during such periods as may be determined by Network Rail.
(3) Network Rail shall not exercise the powers of this article unless it has -
(4) Any prohibition or restriction made by Network Rail under paragraph (1) shall have effect as if duly made by the traffic authority in whose area the road is situated as a traffic regulation order under the 1984 Act.
(5) In this article -
Access to works
14.
Network Rail may, for the purposes of the authorised works -
Construction and maintenance of new or altered streets
15.
- (1) Any street to be constructed under this Order shall be completed to the reasonable satisfaction of the highway authority and shall, unless otherwise agreed, be maintained by and at the expense of Network Rail for a period of 24 months from its completion and at the expiry of that period -
(2) Where a street is altered or diverted under this Order, the altered or diverted part of the street shall when completed to the reasonable satisfaction of the street authority, unless otherwise agreed, be maintained by and at the expense of Network Rail for a period of 24 months from its completion and at the expiry of that period by and at the expense of the street authority.
(3) Paragraphs (1) and (2) do not apply in relation to the structure of any bridge or tunnel carrying a street over or under any railway of Network Rail.
(4) Nothing in this article shall prejudice the operation of section 87 of the Street Works Act (prospectively maintainable highways); and Network Rail shall not by reason of any duty under this article to maintain a street be taken to be the street authority in relation to that street for the purposes of Part III of that Act.
(5) Nothing in this article shall have effect in relation to street works as respects which the provisions of Part III of the Street Works Act apply.
Construction of bridges and tunnels
16.
Any bridge or tunnel to be constructed or reconstructed under this Order for carrying a highway over or under a railway shall be constructed or reconstructed in accordance with plans and specifications approved by the highway authority, but such approval shall not be unreasonably withheld.
Agreements with street authorities
17.
- (1) A street authority and Network Rail may enter into agreements with respect to -
(2) Such an agreement may, without prejudice to the generality of paragraph (1) -
Temporary closure of part of Coventry Canal
18.
- (1) In this article "the waterway" means so much of the Coventry Canal and the towing path, numbered 191 to 195 on the deposited plans, at Huddlesford in the district of Lichfield in the county of Staffordshire as lies within the Order limits.
(2) Network Rail, during and for the purpose of the construction of Work Nos. 1, 2 and 12 and the bridge referred to in article 28(2), may temporarily close and de-water any part of the waterway and divert barges and other boats from any part of the waterway.
(3) During the period of the closure referred to in paragraph (2), all rights of navigation along, and obligations of the British Waterways Board to maintain for navigation, the waterway or part thereof so closed shall be suspended and unenforceable against the British Waterways Board.
(4) Any person who suffers loss by the suspension of any right under this article shall be entitled to be paid by Network Rail compensation, to be determined in the case of dispute by the tribunal.
Discharge of water
19.
- (1) Network Rail may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, sewer or drain.
(2) Network Rail shall not discharge any water into any watercourse, public sewer or drain except with the consent of the authority to which it belongs; and such consent may be given subject to such terms and conditions as the authority may reasonably impose but shall not be unreasonably withheld.
(3) Network Rail shall not make any opening into any public sewer or drain except in accordance with plans approved by, and under the superintendence (if provided) of, the authority to which the sewer or drain belongs, but such approval shall not be unreasonably withheld.
(4) Network Rail shall not, in the exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.
(5) Network Rail shall take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance or oil or matter in suspension.
(6) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by section 85(1), (2) or (3) of the Water Resources Act 1991[17].
(7) In this article -
Protective works to buildings
20.
- (1) Subject to the following provisions of this article, Network Rail may at its own expense and from time to time carry out such protective works to any building within the Order limits and lying within 35 metres of any of the authorised works as Network Rail considers to be necessary or expedient.
(2) Protective works may be carried out -
(3) For the purpose of determining how the functions under this article are to be exercised Network Rail may enter and survey any building falling within paragraph (1) and any land belonging to it.
(4) For the purpose of carrying out protective works under this article to a building Network Rail may (subject to paragraphs (5) and (6)) -
(5) Before exercising -
Network Rail shall, except in the case of emergency, serve on the owners and occupiers of the building or land not less that 14 days' notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.
(6) Where notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 44.
(7) Network Rail shall compensate the owners and occupiers of any building or land in relation to which the powers of this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.
(8)
Where -
Network Rail shall compensate the owners and occupiers of the building for any damage sustained by them.
(9) Nothing in this article shall relieve Network Rail from any liability to pay compensation under section 10(2) of the 1965 Act.
(10) Any compensation payable under paragraph (7) or (8) shall be determined, in case of dispute, under Part I of the 1961 Act.
(11) In this article -
(c) "protective works", in relation to a building, means -
Power to survey and investigate land
21.
- (1) Network Rail may for the purposes of this Order -
(2) No land may be entered, or equipment placed or left on or removed from the land under paragraph (1), unless at least 7 days' notice has been served on every owner and occupier of the land.
(3) Any person entering land under this article on behalf of Network Rail -
(4) No trial holes shall be made under this article in a carriageway or footway without the consent of the street authority, but such consent shall not be unreasonably withheld.
(5) Network Rail shall make compensation for any damage occasioned, by the exercise of the powers conferred by this article, to the owners and occupiers of the land, such compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(6) Nothing in this article shall obviate any need to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979[18].
and may use any land so acquired for those purposes or for any other purposes connected with or ancillary to its railway undertaking.
(2) Network Rail shall not under the powers of this Order acquire compulsorily any interest in the land delineated on the deposited plans and thereon numbered -
except that Network Rail may enter upon and take temporary possession of the land specified in article 36(3) in accordance with that provision.
(3) Notwithstanding paragraph (2), Network Rail may, pursuant to article 24, compulsorily acquire easements or other rights over the land described in paragraph (2)(b).
(4) This article is subject to articles 26, 28(9) and 38.
Application of Part I of Compulsory Purchase Act 1965
23.
- (1) Part I of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, shall apply to the acquisition of land under this Order -
(2) Part I of the 1965 Act, as so applied, shall have effect as if -
Power to acquire new rights
24.
- (1) Subject to article 22(2)(a), Network Rail may compulsorily acquire such easements or other rights over any land referred to in paragraph (1)(a) or (b) of article 22 as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.
(2) Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 9 to this Order), where Network Rail acquires a right over land under paragraph (1) it shall not be required to acquire a greater interest in it.
(3) Schedule 9 to this Order shall have effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.
(4) In relation to land to which this paragraph applies, article 22, so far as relating to the acquisition or creation of easements or other rights by virtue of paragraph (1), shall be treated as also authorising acquisition by a statutory utility in any case where the Secretary of State gives his consent in writing.
(5) Paragraph (4) applies to land within the Order limits which is or will be required for use in relocating any apparatus which it is expedient to divert or replace in consequence of the carrying out of the works authorised by this Order; and in that paragraph "statutory utility" means a licence holder within the meaning of Part I of the Electricity Act 1989[20], a public gas transporter within the meaning of Part I of the Gas Act 1986[21], a water undertaker within the meaning of the Water Industry Act 1991[22], a sewerage undertaker within the meaning of Part I of that Act and any local authority which is a relevant authority for the purposes of section 97 of that Act.
Power to acquire subsoil only
25.
- (1) Subject to article 22(2), Network Rail may compulsorily acquire so much of the subsoil of the land referred to in paragraph (1)(a) or (b) of article 22 as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.
(2) Where Network Rail acquires any part of the subsoil of land under paragraph (1) it shall not be required to acquire an interest in any other part of the land.
(3) Paragraph (2) shall not prevent article 30 from applying where Network Rail acquires a cellar, vault, arch or other construction forming part of a house, building or factory.
Cases where powers of acquisition limited to soil nailing rights
26.
- (1) This article applies to the land specified in Schedule 10 to this Order.
(2) In the case of land to which this article applies, Network Rail's powers of compulsory acquisition under article 22 shall be limited to the acquisition of soil nailing rights in the subsoil of so much of the land as lies within ten metres of land owned by Network Rail.
(3) Where Network Rail acquires soil nailing rights in the subsoil of land to which this article applies, it shall not be required to acquire a greater interest in the land or an interest in any other part of it.
(4) In this article "soil nailing rights" means rights to insert soil nails into the subsoil or to carry out other subsoil works for the purposes of strengthening and stabilising the railway cutting.
(5) References in this article to the subsoil of land are references to the subsoil lying more than one metre beneath the level of the surface of the land; and for this purpose "the level of the surface of the land" means -
Rights under streets
27.
- (1) Network Rail may enter upon and appropriate so much of the subsoil of any street within the Order limits as may be required for the purposes of the authorised works and may use the subsoil for those purposes or any other purpose connected with or ancillary to its railway undertaking.
(2) The power under paragraph (1) may be exercised in relation to a street without Network Rail being required to acquire any part of the street or any easement or right in the street.
(3) Subject to paragraph (4), any person, who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without Network Rail acquiring any part of that person's interest in the land and who suffers loss by the exercise of that power, shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(4) Paragraph (2) shall not apply in relation to -
Temporary use of land for construction of works
28.
- (1) Subject to paragraph (13), Network Rail may, in connection with the carrying out of the authorised works -
(2) Without prejudice to the generality of paragraph (1)(c), Network Rail may, in connection with the carrying out of the authorised works, construct -
in accordance with the levels shown on the deposited sections but subject to the power to deviate in article 6(2).
(3) Not less than 28 days before entering upon and taking temporary possession of land under this article Network Rail shall serve notice of the intended entry on the owners and occupiers of the land.
(4) Subject to paragraph (13), Network Rail may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the work or works, or the date of the provision of the facility or facilities, specified in relation to that land in column (4) of Schedule 11 to this Order.
(5) Before giving up possession of land of which temporary possession has been taken under this article, Network Rail shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but Network Rail shall not be required to replace a building removed under this article.
(6) Network Rail shall pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.
(7) Any dispute as to a person's entitlement to compensation under paragraph (6), or as to the amount of the compensation, shall be determined under Part I of the 1961 Act.
(8) Without prejudice to article 43, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6).
(9) Subject to paragraph (10), the powers of compulsory acquisition of land conferred by this Order shall not apply in relation to the land referred to in paragraph (1).
(10) Network Rail shall not be precluded from acquiring over any part of the land referred to in paragraph (1) -
(11) Where Network Rail takes possession of land under this article, it shall not be required to acquire the land or any interest in it.
(12) In this article "building" includes structure or any other erection.
(13) Where, in relation to land specified in columns (1) and (2) of Schedule 11 to this Order, the purpose specified in column (3) of that Schedule in relation to that land is a right of access -
Disregard of certain interests and improvements
29.
- (1) In assessing the compensation (if any) payable to any person on the acquisition from him of any land under this Order, the tribunal shall not take into account -
if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.
(2) In paragraph (1) "relevant land" means the land acquired from the person concerned or any other land with which he is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.
(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on Network Rail a counter-notice objecting to the sale of the land subject to the notice to treat and stating that he is willing and able to sell the whole ("the land subject to the counter-notice").
(3) If no such counter-notice is served within that period, the owner shall be required to sell the land subject to the notice to treat.
(4) If such a counter-notice is served within that period, the question whether the owner shall be required to sell only the land subject to the notice to treat shall, unless Network Rail agrees to take the land subject to the counter-notice, be referred to the tribunal.
(5) If on such a reference the tribunal determine that the land subject to the notice to treat can be taken -
the owner shall be required to sell the land subject to the notice to treat.
(6) If on such a reference the tribunal determine that only part of the land subject to the notice to treat can be taken -
the notice to treat shall be deemed to be a notice to treat for that part.
(7) If on such a reference the tribunal determine that -
the notice to treat shall be deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which Network Rail is authorised to acquire compulsorily under this Order.
(8) If Network Rail agrees to take the land subject to the counter-notice, or if the tribunal determine that -
the notice to treat shall be deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which Network Rail is authorised to acquire compulsorily under this Order.
(9) In any case where by virtue of a determination by the tribunal under this article a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, Network Rail may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, if it does so, shall pay the owner compensation for any loss or expense occasioned to him by the giving and withdrawal of the notice, to be determined, in case of dispute, by the tribunal.
(10) Where the owner is required under this article to sell only part of a house, building or factory or of land consisting of a house with a park or garden, Network Rail shall pay him compensation for any loss sustained by him due to the severance of that part in addition to the value of the interest acquired.
Extinction or suspension of private rights of way
31.
- (1) All private rights of way over land held and used by Network Rail for the purposes of the authorised works or subject to compulsory acquisition under this Order shall be extinguished -
whichever is sooner.
(2) All private rights of way over land of which Network Rail takes temporary possession under this Order shall be suspended and unenforceable for as long as Network Rail remains in lawful possession of the land.
(3) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
(4) This article does not apply in relation to any right of way to which section 271 or 272 of the Town and Country Planning Act 1990[23] (extinguishment of rights of statutory undertakers etc.) or paragraph 2 of Schedule 12 to this Order applies.
(5) This article does not apply in relation to any priviate right of way over -
where the purpose specified in column (3) of that Schedule in relation to that land is a right of access, except where, or to the extent that, the private right of way is inconsistent with the exercise of the right of access acquired by Network Rail under this Order.
Time limit for exercise of powers of acquisition
32.
- (1) No notice to treat shall be served under Part I of the 1965 Act, as applied to the acquisition of land under article 23 after the end of the period of 5 years beginning with the day on which this Order comes into force.
(2) The power conferred by article 28 to enter upon and take temporary possession of land shall cease at the end of the period mentioned in paragraph (1); but this paragraph shall not prevent Network Rail remaining in possession of land in accordance with article 28 after the end of that period, if the land was entered and possession of it was taken before the end of that period.
(2) The following provisions of the Control of Pollution Act 1974, namely -
shall not apply where the consent relates to the use of premises by Network Rail for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.
the exchange land shall vest in the borough of Tamworth.
(2) Upon the vesting of the exchange land in the borough of Tamworth -
(3) The provisions of article 28 shall apply in relation to the entering upon and taking temporary possession of the land delineated on the deposited plans and thereon numbered 97, 109b, 159b, 159c, 160, 161, 197c, 200a, 202a, 202b, 202c, 202d, 202e, 203a, 205a, 205b, 206a, 239a and 240 in the borough of Tamworth and 176a, 176c, 177, 178a, 178d, 179, 203a, 203b and 203d in the district of Lichfield as if -
(4) As from the later of -
that land or that part of it which is vested (as the case may be) shall be discharged from all rights, trusts and incidents to which it was previously subject.
(5) As from the later of -
the land over which the easement or right is acquired shall be discharged from all rights, trusts and incidents to which it was previously subject so far as their continuance would be inconsistent with the exercise of that easement or other right.
(6) In this article -
Disclosure of confidential information
37.
A person who -
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale unless the disclosure is made in the course of performing his duty in connection with the purposes for which he was authorised to enter the land.
Saving for regulated rights etc.
38.
Nothing in this Order shall affect any estate, right or interest granted by Network Rail in respect of a railway facility which is subject to an access contract within the meaning of Part I of the Railways Act 1993[27].
Statutory undertakers etc.
39.
The provisions of Schedule 12 to this Order shall have effect.
Protective provisions
40.
The provisions of Schedule 13 to this Order shall have effect.
Certification of plans etc.
41.
Network Rail shall, as soon as practicable after the making of this Order, submit copies of the book of reference, the deposited sections and the deposited plans to the Secretary of State for certification that they are true copies of, respectively, the book of reference, deposited sections and deposited plans referred to in this Order; and a document so certified shall be admissable in any proceedings as evidence of the contents of the document of which it is a copy.
Service of notices
42.
- (1) A notice or other document required or authorised to be served for the purposes of this Order may be served by post.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 of the Interpretation Act 1978[28] as it applies for the purposes of this article, the proper address of any person in relation to the service on him of a notice or document under paragraph (1) is, if he has given an address for service, that address, and otherwise -
(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and his name or address cannot be ascertained after reasonable enquiry, the notice may be served by -
(5) This article shall not be taken to exclude the employment of any method of service not expressly provided for by it.
No double recovery
43.
Compensation shall not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.
Arbitration
44.
Any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Civil Engineers.
Signed by authority of the Secretary of State for Transport
Ellis Harvey
Head of the Transport and Works Act Orders Unit, Department for Transport
12th February 2004
District of Lichfield -
Borough of Tamworth -
-
District of Lichfield -
Borough of Tamworth -
(1) | (2) | (3) |
Area/locality | Number of land shown on deposited plans | Purpose for which land may be acquired and used |
County of Staffordshire Borough of Tamworth Tamworth-Lichfield Four Tracking | 80, 105 | Demolition and reconstruction of garages. |
83, 85, 86, 87, 89, 91, 93, 95 | Diversion of sewer. | |
253 | Provision of open space and working site. | |
152, 153 | Diversion of footpath FP 1R/2293. | |
158 | Reconstruction of garages, provision of turning area and working site. | |
159 | Provision of vehicle turning area and working site. | |
160 | Diversion of track, gas main and working site. | |
161 | Diversion of gas main and working site. | |
163, 233 | Demolition of warehouses and provision of working site. | |
218, 231 | Right of access for construction and maintenance. | |
248 | Provision of maintenance and accommodation access and working site. | |
252 | Provision of open space. | |
Tamworth South | 265, 266, 267, 268, 272, 274 | Provision of access for construction and maintenance and working site. |
259, 261, 263 | Provision of vehicular lay-bys (Bracklesham Way) for maintenance. | |
District of Lichfield Tamworth-Lichfield Four Tracking | 2 | Provision of maintenance and accommodation access and working site. |
5, 8 | Provision of maintenance and accommodation access, diversion of footpath FP 22 and working site. | |
7 | Provision of maintenance and accommodation access, turning area and working site. | |
17, 18 | Right of access for construction and maintenance. | |
14, 31, 32, 43, 211 | Provision of turning areas, maintenance accesses and working sites. | |
16, 29, 46 | Provision of maintenance accesses and working sites. | |
49 | Provision of accommodation access and working site. | |
51 | Provision of accommodation access. | |
55, 56, 57, 210 | Right of access for maintenance. | |
77, 78, 82 | Provision of drainage soakaway and working site. | |
94, 95, 112, 113 | Provision of vehicle turning areas. | |
109, 156, 157 | Provision of road drainage and working site. | |
182 | Provision of highway visibility splay. |
(1) | (2) | (3) | (4) |
Area | Level crossing to be discontinued | Street to be stopped up | Accommodation works |
County of Staffordshire | |||
District of Lichfield | The level crossing known as Hademore crossing whereby Fisherwick Road and the C75 road are crossed on the level by the West Coast Main Line railway between Tamworth and Lichfield (Trent Valley) stations | Fisherwick Road and C75 road between points S1 and S2 | Work Nos. 10, 10A, 10B and 10C. |
(1) | (2) | (3) | (4) |
Area | Level crossing to be discontinued | Footpath to be stopped up | New footpath to be substituted |
County of Staffordshire | |||
Borough of Tamworth | The level crossing at Alders | Footpath FP11 between points F13, F14 and F15 | Footpath between points F13, F16 and F17 and between points F16 and F18/S3 to be carried under the West Coast Main Line railway by means of Work No. 6. |
District of Lichfield | The level crossing at Comberford | Footpath FP22 between points C1 and C2 | Footpath between points F4, F5, F6, F7, F8, F9 and C2 to be carried over the West Coast Main Line railway by means of Work No. 8. |
(1) | (2) |
Area | Street subject to street works |
County of Staffordshire | |
Borough of Tamworth | Upper Gungate (A513), Offadrive (A513), Salter's Lane, Croft Street, Cross Street, Ludgate, Footway between Ludgate and Tennyson Avenue, Tennyson Avenue, St Austell Close, Wordsworth Avenue, Anders, Footpath FP 1R/2293, Edgar Close, Roman Way, Lanchester Close, Norman Close, Fontenaye Road, Cromwell Road, Coton Lane, Footpath FP 11, Footpath FP 25, Moor Lane, Footpath FP T105, Bracklesham Way. |
District of Lichfield | Tamworth Road (A513), Fisherwick Road, Bridleway BR 2, C75, Burton Road, Huddlesford Lane, A38(T), Cappers Lane (A5192), Burton Old Road. |
(1) | (2) | (3) | (4) |
Area | Street to be stopped up | Extent of stopping up | New street to be substituted |
County of Staffordshire | |||
Borough of Tamworth | Footway between Ludgate and Tennyson Avenue | Between points F1/S1 and F2/S2 | Footpath between points F3, F4, F5, F6 and F7 (Work No. 4). |
Footpath FP 1R/2293 | Between points F9 and F10 | Footpath between points F11 and F12. | |
Footpath FP11 | Between points F13, F14 and F15 | Footpath between points F13, F16 and F17 and between points F16 and F18/S3 (Work No. 6). | |
Coton Lane | Within the Order limits | Work No. 7. | |
District of Lichfield | Footpath FP22 | Between points F1, F2 and C1 | Footpath between points F1, F3, F4, then between points F4, F5, F6, F7, F8 and F9 (Work No. 8) and then between points F9 and C2. |
Fisherwick Road | Between points S3 and S4 | Work Nos. 10 and 10A. | |
C75 road | Between points S5 and S6 | Work Nos. 10 and 10B. |
(1) | (2) | (3) |
Area | Street to be stopped up | Extent of stopping up |
County of Staffordshire | ||
Borough of Tamworth | Ludgate/Tennyson Avenue (vehicular traffic) | Between points F1/S1 and F2/S2. |
Roman Way (vehicular traffic) | Between points F18/S3 and S4. | |
District of Lichfield | Fisherwick Road | Between points S1 and S8. |
C75 road | Between points S1 and S7. |
(1) | (2) |
Area | Streets to be stopped up |
County of Staffordshire | |
Borough of Tamworth | Upper Gungate (A513) |
Offadrive (A513) | |
Salter's Lane | |
Croft Street | |
Cross Street | |
Freville Close | |
Ludgate | |
Tennyson Avenue | |
St. Austell Close | |
Footpath FP 1R/2293 | |
Wordsworth Avenue | |
Anders | |
Footpath FP 7 | |
Edgar Close | |
Roman Way | |
Lanchester Close | |
Norman Close | |
Fontenaye Road | |
Footpath FP 25 | |
Cromwell Road | |
Coton Lane | |
Moor Lane | |
Footpath FP T105 | |
Bracklesham Way. | |
District of Lichfield | Footpath FP 22 |
Bridleway BR10 | |
Tamworth Road (A513) | |
Footpath FP 12 (Parish of Wigginton and Hopwas) | |
Footpath FP 11 | |
Towing path of the Coventry Canal | |
Fisherwick Road | |
Bridleway BR 2 | |
C75 | |
Burton Road | |
Footpath FP 12 (Parish of Whittington) | |
Huddlesford Lane | |
A38(T) | |
Cappers Lane (A5192) | |
Burton Old Road. |
(1) | (2) |
Area | Description of Access |
County of Staffordshire | |
Borough of Tamworth | Upper Gungate (A513) |
Offadrive (A513) | |
Cross Street | |
Tennyson Avenue | |
St. Austell Close | |
Anders | |
Roman Way | |
Coton Lane | |
Moor Lane. | |
District of Lichfield | Tamworth Road (A513) |
Fisherwick Road | |
Burton Road | |
Huddlesford Lane | |
Cappers Lane (A5192) | |
Burton Old Road. |
(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 -
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 acquistion 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 -
(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 -
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 -
the Network Rail (West Coast Main Line) Order 2004 ("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 subsection 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 -
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.
(1) | (2) |
Area | Number of land shown on deposited plans |
County of Staffordshire | |
Borough of Tamworth | |
Tamworth-Lichfield Four Tracking | 18, 19, 20, 22, 24, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 44, 45, 47, 49, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 63, 65, 68, 70, 72. |
(1) | (2) | (3) | (4) |
Number of land shown on deposited plans | Purpose for which temporary possession may be taken or use made | Work or facility | |
County of Staffordshire | |||
Borough of Tamworth | |||
Tamworth - Lichfield - | |||
Four Tracking | 2, 3, 5 | Right of access | Work Nos. 1, 2, 3, 3A and 3B. |
4, 10 | Working sites | Work Nos. 1, 2, 3, 3A and 3B. | |
8 | Relocation of pedestrian access and working site | Work Nos. 1, 2, and 3. | |
49, 50 | Working site and provision of replacement car parking | Work Nos. 1 and 2. | |
62, 63, 64, 65, 66, 68, 72 | Working sites | Work Nos. 1, 2 and 4. | |
67 | Working site and realignment of driveway | Work Nos. 1, 2 and 4. | |
74, 76, 78, 84, 99, 101, 103, 111, 112, 113, 115, 117, 119, 121, 123, 125, 127, 129, 131, 133, 135, 137, 139, 141, 143, 145, 147, 149, 151, 165, 166, 168, 170, 175, 177, 180, 181, 182, 185, 190, 193, 195, 198, 216, 226, 229, 232, 236, 238, 251, 254, 256 | Working sites | Work Nos. 1 and 2. | |
172 | Working site | Work Nos. 1, 2 and 5. | |
173 | Right of access | Work Nos. 1, 2 and 5. | |
188, 192, 223, 225, 228 | Right of access | Work Nos. 1 and 2. | |
219, 220 | Working site | Work Nos. 1, 2 and 6. | |
241, 242 | Working site | Work Nos. 1, 2, 5, 7 and 7A. | |
246 | Working site | Work Nos. 1, 2, 2A and 7. | |
247 | Working site | Work Nos. 1, 2 and 2A. | |
District of Lichfield | 1, 4, 26 | Working sites | Work Nos. 1, 2 and 2A. |
6 | Working site | Work Nos. 1, 2, 2A and 8. | |
11, 12, 38, 39, 44, 48, 60, 62, 70, 71, 92, 93, 96, 161, 164, 169, 173, 180, 187, 189, 191, 225 | Working sites | Work Nos. 1 and 2. | |
13, 15, 22a, 23 | Working sites | Work Nos.1, 2 and 8. | |
20, 20a, 45, 58, 6785, 86, 87 | Working sites | Work Nos. 1, 2, 9, 9A, 10, 10A, 10B, 10C and 11. | |
21 | Access | Work Nos. 1, 2, 9, 9A, 10, 10A, 10B, 10C and 11. | |
22, 34, 42 | Temporary vehicular bridge and working sites | Work Nos. 1, 2, 9, 9A, 10, 10A, 10B, 10C and 11. | |
74, 75, 79, 81, 83 | Working sites | Work Nos. 9 and 9A. | |
110, 122 | Working sites | Work Nos. 10, 10A, 10B and 10C. | |
115, 128, 129, 132, 135, 135a, 137, 139, 141, 143, 145, 147, 149, 151 | Working sites | Work Nos. 1, 2 and 11. | |
183, 193, 196 | Temporary vehicular bridge and working sites | Work Nos. 1, 2 and 12. | |
188, 224 | Right of access | Work Nos. 1 and 2. | |
198, 207, 207b | Working sites | Work Nos. 1, 2 and 12. | |
205 | Working site | Work Nos. 1, 2, 12, 13A and 13B. | |
213, 221, 223, 228, 230, 232 | Working sites | Work Nos. 1, 2, 13A and 13B. | |
216, 218 | Working sites and traffic management measures | Work Nos. 13A and 13B. | |
222 | Right of access | Work Nos. 1, 2, 13A and 13B. |
shall be entitled to recover from Network Rail 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.
(3) Subject to the following provisions of this paragraph, Network Rail shall pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with -
(4) If in the course of the execution of relocation works under sub-paragraph (2) -
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 Network Rail, 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) -
(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 -
(8) In this paragraph -
except with the consent of the undertakers or authority or, as the case may be, of the person to whom the level crossing belongs.
(2) Sub-paragraph (1) shall not apply to the carrying out under this Order of emergency works, within the meaning of Part III of the Street Works Act.
(3) A consent given for the purposes of sub-paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but shall not be unreasonably withheld.
(4) In this paragraph "navigation authority" means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary, harbour or dock.
(not being, except in paragraph 2, apparatus in respect of which the relations between Network Rail and the undertaker in question are regulated by the provisions of Part III of the Street Works Act) and includes any structure for the lodging therein of apparatus or for giving access to apparatus;
2.
Notwithstanding the temporary stopping up or diversion of any highway under the powers of 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, renew, or use any apparatus which at the time of the stopping up or diversion was in that highway.
3.
- (1) Network Rail, in the case of the powers conferred by article 20 of this Order, shall, so far as is reasonably practicable, so exercise those powers as not to obstruct or render less convenient the access to any apparatus and, if by reason of the exercise of those powers, any damage to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal or abandonment) or property of any undertaker or any interruption in the supply of electricity, gas or water, as the case may be, by the undertaker is caused, Network Rail shall bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and, subject to sub-paragraph (2), shall -
by reason of any such damage or interruption.
(2) Nothing in this paragraph shall impose any liability on Network Rail with respect to any damage or interruption to the extent that such damage or interruption is attributable to the act, neglect or default of an undertaker or its contractors or workmen; and the undertaker shall give to Network Rail reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made without the prior consent of Network Rail.
4.
Notwithstanding anything in this Order or shown on the deposited plans Network Rail shall not acquire any apparatus under the powers of this Order otherwise than by agreement.
5.
- (1) If Network Rail, in the exercise of the powers of this Order, acquires 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 use, maintain or renew that apparatus in that land shall not be extinguished until adequate alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker in question.
(2) If Network Rail, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, requires the removal of any apparatus placed in that land, it 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 so as to provide adequate alternative apparatus in lieu of the apparatus to be removed, and in that case (or if in consequence of the exercise of any of the powers of this Order the undertaker reasonably requires to remove any apparatus) Network Rail shall, subject to sub-paragraph (3), afford to the undertaker the necessary facilities and rights for the construction of the alternative apparatus in other land of Network Rail and thereafter for the use, maintenance and renewal of that apparatus.
(3) If the alternative apparatus or any part of it is to be constructed elsewhere than in other land of Network Rail, or Network Rail is unable to afford such facilities and rights as aforesaid in the land in which the alternative apparatus or part of it is to be constructed, the undertaker shall, on receipt of a written notice to that effect from Network Rail, forthwith use its best endeavours to obtain the necessary facilities and rights in that last-mentioned land.
(4) Any alternative apparatus to be constructed in land of Network Rail 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 Network Rail or in default of agreement settled by arbitration under article 44 of this Order.
(5) The undertaker in question shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration as aforesaid 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 Network Rail to be removed under the provisions of this Part of this Schedule.
(6) Notwithstanding anything in sub-paragraph (5), if Network Rail gives notice in writing to the undertaker in question that it desires itself 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 Network Rail, that work, instead of being carried out by the undertaker, shall be carried out by Network Rail in accordance with plans and specifications and in a position agreed between the undertaker and Network Rail or in default of agreement determined by arbitration, with all reasonable dispatch under the superintendence, if given, and to the reasonable satisfaction of the undertaker.
(7) Nothing in sub-paragraph (6) shall authorise Network Rail to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.
6.
- (1) Where, in accordance with the provisions of this Part of this Schedule, Network Rail affords to an undertaker facilities and rights for the construction, maintenance and renewal in land of Network Rail of alternative apparatus in substitution for apparatus to be removed as aforesaid, those facilities and rights shall be granted upon such terms and conditions as may be agreed between Network Rail and the undertaker in question or in default of agreement settled by arbitration in accordance with sub-paragraphs (2) and (3).
(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along any railway of Network Rail, the arbitrator shall -
(3) If the facilities and rights to be afforded by Network Rail in respect of any alternative apparatus and the terms and conditions subject to which the same 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 Network Rail to the undertaker as appears to him to be reasonable having regard to all the circumstances of the particular case.
7.
- (1) Not less than 28 days before commencing the execution of any works that are referred to in paragraph 5(2) and are near to, or will or may affect, any apparatus the removal of which has not been required by Network Rail under paragraph 5(2), Network Rail shall submit to the undertaker in question a plan, section and description 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 the undertaker under sub-paragraph (2) shall be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.
(4) If an undertaker within 21 days after the submission to it of a plan, section and description shall, in consequence of the works proposed by Network Rail, reasonably requires the removal of any apparatus and gives written notice to Network Rail of that requirement, the foregoing provisions of this Part of this Schedule shall apply as if the removal of the apparatus had been required by Network Rail under paragraph 5(2).
(5) Nothing in this paragraph shall preclude Network Rail from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description of the works in lieu of the plan, section and description previously submitted, and thereupon the provisions of this paragraph shall apply in respect of the new plan, section and description.
(6) Network Rail 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 reasonably practicable and a plan, section and description of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (2) so far as reasonably practicable in the circumstances.
8.
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, but nothing in this paragraph shall affect any right of Network Rail or of the undertaker to require removal of such apparatus under this Part of this Schedule or the power of Network Rail to execute works in accordance with paragraph 7.
9.
- (1) Subject to the following provisions of this paragraph, Network Rail shall pay to an undertaker the costs, charges and expenses reasonably 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), less the value of any apparatus removed under the provisions of this Part of this Schedule (that value being calculated after removal), and shall also make compensation to that undertaker -
by reason of the execution, maintenance, user or failure of those works or otherwise by reason of the exercise by Network Rail of the powers of this Order.
(2) If in pursuance of the provision of this Part of this Schedule -
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 Network Rail or, in default of agreement, is not determined by arbitration to be necessary, then, if it 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.
(3) For the purposes of sub-paragraph (2) -
(4) An amount which apart from this sub-paragraph would be payable to an undertaker in respect of works by virtue of sub-paragraph (1) (and having regard, where relevant, to sub-paragraph (2)) 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.
(5) Sub-paragraphs (1) to (4) shall not apply where the authorised works constitute major transport works for the purposes of Part III of the Street Works Act, but instead -
10.
If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed Network Rail shall, so far as reasonably practicable, provide alternative means of access to such apparatus which is no less convenient than the access enjoyed by the undertaker prior to the obstruction.
11.
- (1) Where, by reason of the stopping up of any highway pursuant to this Order, any apparatus belonging to an undertaker and laid or placed in such highway or elsewhere is rendered derelict or unnecessary, Network Rail shall, subject to sub-paragraph (2), pay to that undertaker the then value of such apparatus (which shall thereupon become the property of Network Rail) and the reasonable cost of and incidental to the cutting off of such apparatus from any other apparatus, and of and incidental to the execution or doing of any works or things rendered necessary or expedient by reason of such apparatus being so rendered derelict or unnecessary.
(2) Network Rail shall not under the provisions of this paragraph be required to pay to an undertaker the value of any apparatus rendered derelict or unnecessary if, to the reasonable satisfaction of the undertaker, other apparatus has at the expense of Network Rail been provided and laid and made ready for use in substitution for the apparatus so rendered derelict or unnecessary.
12.
Any difference arising between Network Rail and an undertaker under this Part of this Schedule shall be referred to and settled by arbitration under article 44 of this Order.
13.
Nothing in this Part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between Network Rail and an undertaker in respect of any apparatus laid or erected in land belonging to Network Rail on the coming into force of this Order.
(2) Sub-paragraph (1) shall not apply to any apparatus in respect of which the relations between Network Rail and BT are regulated by the provisions of Part III of the Street Works Act or to any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised works.
(3) Nothing in sub-paragraph (1) shall impose any liability on Network Rail with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of BT, its officers, servants, contractors or agents.
(4) BT shall give Network Rail reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent of Network Rail 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.
17.
Any difference arising between Network Rail and the operator under this Part of this Schedule shall be referred to and settled by arbitration under article 44 of this Order.
(3) The provisions of Schedule 12 to this Order shall not apply in relation to apparatus to which this Part of this Schedule applies.
19.
- (1) Before commencing the construction or renewal of any specified work and in the case of any temporary work its removal, Network Rail shall submit to the undertaker plans of the work as described in sub-paragraph (3) (in this Part of this Schedule referred to as "the plans") and shall not commence that work until the undertaker has signified in writing its approval of those plans.
(2) Any approval of the undertaker required under this paragraph -
(3) 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 Network Rail may propose to any such sewers.
(4) For the purpose of the preparation of the plans the undertaker shall permit Network Rail to have access to plans in its possession and to any of its sewers.
(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.
20.
- (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 under paragraph 19 or settled by arbitration, as the same may be amended from time to time by agreement between Network Rail and the undertaker, and in the construction or removal of any specified work Network Rail 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 for such works, or in such supervision, shall be paid to the undertaker by Network Rail.
(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 satisifaction of the undertaker, they shall be vested in and become maintainable by the undertaker.
21.
- (1) Subject to the following provisions of this Part of this Schedule, Network Rail 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 to 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) Network Rail 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 any specified work or any subsidence caused by the construction of any specified work or in consequence of any act or omission of Network Rail, 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 Network Rail reasonable notice of any such claim or demand as is mentioned in sub-paragraph (2) and no settlement or compromise of the claim or demand shall be made without the agreement in writing of Network Rail.
(4) Nothing in sub-paragraph (1) or (2) shall impose any liability on Network Rail 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 Network Rail, its contractors or agents.
(5) If in pursuance of the provisions of this Part of this Schedule -
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 Network Rail 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 -
22.
- (1) An officer of the undertaker duly appointed for the purpose may, at any reasonable time and, if required by Network Rail, 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 negliagence on the part of the undertaker, its officers, servants, or, if not Network Rail, its contractors or agents) exonerate Network Rail from any liability or affect any claim for damages by the undertaker.
23.
- (1) 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, renew, protect or use any sewer which at the time of the stopping up or diversion was in that highway.
(2) Where, in consequence of this Order, any part of any street, bridleway or footpath in which any sewer is situated ceases to be part of the streeet, bridleway or footpath, the undertaker may exercise the same rights of access to such sewer as it enjoyed immediately before the coming into force of this Order, but nothing in this paragraph shall affect any right of Network Rail or of the undertaker to require alteration of such sewer under this Part of this Schedule.
24.
Network Rail shall, so far as is reasonably practicable, so exercise the powers conferred by article 20 of this Order as not to obstruct or render less convenient the access to any sewer.
25.
As soon as reasonably practicable after the completion of the construction of any specified work Network Rail 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.
26.
Nothing in this Part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between Network Rail and the undertaker in respect of any sewer or other apparatus constructed, laid or erected in land belonging to Network Rail before the coming into force of this Order.
27.
Any difference arising between Network Rail and the undertaker under this Part of this Schedule shall be referred to and settled by arbitration under article 44 of this Order.
29.
- (1) Before beginning to constuct any specified work, Network Rail shall submit to the Agency plans of the work and such further particulars available to it as the Agency may within 28 days of the submission of the plans reasonably require.
(2) Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 40.
(3) Any approval of the Agency required under this paragraph -
30.
Without prejudice to the generality of paragraph 29, the requirements which the Agency may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (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 -
by reason of any specified work.
31.
- (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 30, shall be constructed -
and the Agency shall be entitled by its officer to watch and inspect the construction of such works.
(2) Without prejudice to any reasonable requirements of the Agency under paragraph 30 relating to protective works, if any specified work or protective work is not constructed within the period required under sub-paragraph (1)(a), Network Rail may submit to the Agency new plans of the work for further approval and the provisions of this Part of this Schedule shall apply accordingly.
(3) Network Rail shall give to the Agency not less than 14 days' notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.
(4) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require Network Rail, at Network Rail's own expense, to comply with the requirements of this Part of this Schedule or (if Network Rail so elects and the Agency in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.
(5) Subject to sub-paragraph (6) and paragraph 35, if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served upon Network Rail, 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 Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from Network Rail.
(6) In the event of any dispute as to whether sub-paragraph (4) is applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not, except in emergency, exercise the powers conferred by sub-paragraph (5) until the dispute has been finally determined.
32.
- (1) Subject to the provisions of this Part of this Schedule and except to the extent that the Agency or another person is liable to maintain any such work and is not precluded by the exercise of the powers of this Order from so doing, Network Rail shall from the commencement of the construction of the specified work maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation or on land held by Network Rail for the purposes of or in connection with the specified work, whether or not the drainage work is constructed under the powers of the Order or is already in existence.
(2) If any such drainage work which Network Rail is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require Network Rail to repair and restore the work, or any part thereof, or (if Network Rail so elects and the Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site (including sea defences) to its former condition, to such extent and within such limits as the Agency reasonably requires.
(3) Subject to paragraph 35, 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 Network Rail, Network Rail 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 Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from Network Rail.
(4) In the event of any dispute as to the reasonableness of any requriement of a notice served under sub-paragraph (2), the Agency shall not, except in a case of emergency, exercise the powers of sub-paragraph (3) until the dispute has been finally determined.
33.
Subject to paragraph 35, 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 Network Rail to the reasonable satisfaction of the Agency and, if Network Rail fails to do so, the Agency may make good the same and recover from Network Rail the expense reasonably incurred by it in so doing.
34.
- (1) Network Rail 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 -
damage to a fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on Network Rail requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect that fishery against such damage.
(3) Subject to paragraph 35, if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, Network Rail fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from Network Rail the expense reasonably incurred by it in doing so.
(4) Subject to paragraph 35, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to a fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from Network Rail the reasonable cost of so doing provided that notice specifying those steps is served on Network Rail as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.
35.
Nothing in paragraphs 31 to 34 shall authorise the Agency to execute works on or affecting an operational railway forming part of Network Rail's network without the written consent of Network Rail, such consent not to be unreasonably withheld.
36.
Network Rail shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain -
37.
- (1) Without prejudice to the other provisions of this Part of this Schedule, Network Rail shall indemnify the 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 Agency by reason of -
which is caused by the construction of any specified work or any act or omission of Network Rail, its contractors, agents or employees whilst engaged upon the work.
(2) The Agency shall give to Network Rail reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of Network Rail, which agreement shall not be unreasonably withheld.
38.
The fact that any work or thing has been executed or done by Network Rail in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve Network Rail from any liability under the provisions of this Part of this Schedule.
39.
For the purposes of section 5 of the Metropolis Management (Thames River Prevention of Floods) (Amendment) Act 1879[31] and 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 Agency under this Part of 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, a consent or approval under those sections, and Network Rail 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).
40.
Any dispute arising between Network Rail and the Agency under this Part of this Schedule (other than a difference as to its meaning or construction) shall, if the parties agree, be determined by arbitration under article 44 of this Order, 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 Network Rail or the Agency, after notice in writing by one to the other.
and "construct" and "constructed" have corresponding meanings;
(3) Network Rail shall not under the powers conferred by this Order acquire compulsorily any land of BW, or any easement or other right over such land other than such land, or easements or other rights over such land, as is reasonably necessary for, or in connection with, the construction, maintenance or operation of works authorised by this Order.
except with the consent of BW and in accordance with plans approved by, and under the supervision (if given) of, the engineer.
(3) Network Rail shall not exercise the powers conferred by article 21 of this Order, or the powers conferred by section 11(3) of the 1965 Act, in relation to a waterway unless such exercise is with the consent of BW.
(4) Network Rail shall not exercise the powers conferred by section 271 or 272 of the Town and Country Planning Act 1990, as applied by Schedule 12 to this Order, so as permanently to divert any right of access to a waterway, but such right of access may be permanently diverted with the consent of BW.
(5) The consent of BW pursuant to any of sub-paragraphs (1) to (4) and the approval of plans under sub-paragraph (2) shall not be unreasonably withheld or delayed but may be given subject to reasonable conditions which in the case of article 19 may include conditions -
43.
Network Rail shall not use any land or property of BW forming part of a waterway for the passage or siting of vehicles, plant or machinery employed in the construction of the specified work other than -
44.
If in consequence of or in connection with the exercise of the powers of this Order any part of a towing path or any public right of way giving access thereto ("the closed section") is temporarily closed to persons on foot or on cycles and there is no way which provides a reasonable alternative, Network Rail shall, to the reasonable satisfaction of BW, provide in substitution a sufficient and convenient way as is reasonably practicable between the points of commencement and termination of the closed section for such time as the closure continues.
and such protective work shall be constructed by Network Rail with all reasonable dispatch and Network Rail shall not commence the construction of any specified work until the engineer has notified Network Rail that the protective work has been completed to his reasonable satisfaction.
(2) Nothing in this Order shall authorise Network Rail to make or maintain any permanent works in or over a waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which BW are required by section 105(1)(b) and (2) of the Transport Act 1968[32] to maintain the waterway.
(3) Following the completion of the construction of the specified work Network Rail shall restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of that work.
53.
- (1) If any detriment shall be caused by the construction of the specified work or the protective works, Network Rail (if so required by BW) shall make good such detriment and shall pay to BW all reasonable expenses to which BW may be put, and compensation for any loss which BW may sustain, in making good or otherwise by reason of the detriment.
(2) Network Rail shall be responsible for and make good to BW all costs, charges, damages, expenses and losses not otherwise provided for in this Part of this Schedule which may be occasioned to or reasonably incurred by BW -
and subject to sub-paragraph (4), Network Rail shall effectively indemnify and hold harmless BW from and against all claims and demands arising out of any of the matters referred to in sub-paragraphs (a) and (b).
(3) The fact that any act or thing may have been done by BW on behalf of Network Rail or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision or in accordance with any directions or awards of an arbitrator shall not (if it was done without negligence on the part of BW or of any person in its employ or of its contractors or agents) excuse Network Rail from any liability under the provisions of this paragraph.
(4) BW shall give Network Rail reasonable notice of any such claim or demand as aforesaid and no settlement or compromise of such a claim or demand shall be made without the prior consent of Network Rail.
[9] See section 406(7) and Schedule 19.back
[21] 1986 c. 44. A new section 7 was substituted by section 5 of the Gas Act 1995 (c. 45).back
[27] 1993 c. 43, to which there are amendments not relevant to this article.back