18.—(1) For the protection of the Canal and River Trust the following provisions of this Part of this Schedule have effect, unless otherwise agreed in writing between the undertaker and the Canal and River Trust.
(2) In this Part of this Schedule—
“Code of Practice” means the Code of Practice for Works Affecting the Canal and River Trust (April 2022) or any updates or amendments thereto;
“construction”, in relation to any specified work or protective work, includes—
the execution and placing of that work; and
any relaying, renewal, or maintenance of that work as may be carried out during the period of 24 months from the completion of that work; and “construct” and “constructed” have corresponding meanings;
“Canal and River Trust’s network” means the Canal and River Trust’s network of waterways;
“detriment” means any damage to the waterway or any other property of the Canal and River Trust caused by the presence of the authorised development and, without prejudice to the generality of that meaning, includes—
any obstruction of, or interference with, or hindrance or danger to, navigation or to any use of the waterway (including towing paths);
the erosion of the bed or banks of the waterway, or the impairment of the stability of any works, lands or premises forming part of the waterway;
the deposit of materials or the siltation of the waterway so as to damage the waterway;
the pollution of the waterway;
any significant alteration in the water level of the waterway, or significant interference with the supply of water thereto, or drainage of water therefrom;
any harm to the ecology of the waterway (including any adverse impact on any site of special scientific interest comprised in the Canal and River Trust’s network); and
any interference with the exercise by any person of rights over Canal and River Trust’s network;
“the engineer” means an engineer appointed by the Canal and River Trust for the purpose in question;
“plans” includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction) and programmes;
“practical completion” means practical completion of all of the specified work notwithstanding that items which would ordinarily be considered snagging items remain outstanding, and the expression “practically complete” and “practically completed” is to be construed accordingly;
“protective work” means a work constructed under paragraph 22(3)(a);
“specified work” means so much of Work Nos. 4A, 8A, 9A, 9B, 10B and 11A as is situated upon, across, under, over or within 15 metres of, or may in any way affect the waterway;
“the waterway” means each and every part of the Stainforth and Keadby Canal within the order limits, and any works, lands or premises belonging to the Canal and River Trust, or under its management or control, and held or used by the Canal and River Trust in connection with that canal in connection with its statutory functions.
(3) Where the Code of Practice applies to any works or matter that are part of the authorised development or that form part of the protective works and there is an inconsistency between these protective provisions and the Code of Practice, the part of the Code of Practice that is inconsistent with these protective provisions will not apply and these protective provisions will apply. The undertaker will identify and agree with the Canal and River Trust those parts of the Code of Practice which are not applicable to the construction of the specified works and for the avoidance of doubt the undertaker will not be required to comply with those agreed parts of the Code of Practice.
Commencement Information
I1Sch. 10 para. 18 in force at 29.12.2022, see art. 1
19.—(1) The undertaker must not in the exercise of the powers conferred by this Order obstruct or interfere with pedestrian or vehicular access to the waterway unless such obstruction or interference with such access is with the consent of the Canal and River Trust.
(2) The undertaker must not exercise any power conferred by this Order to discharge water into the waterway under article 14 (discharge of water) or in any way interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of the Canal and River Trust, save as to surface water discharge which will not require the consent of the Canal and River Trust.
(3) The undertaker must not exercise the powers conferred by article 15 (authority to survey and investigate the land) or section 11(3) of the 1965 Act, in relation to the waterway unless such exercise is with the consent of the Canal and River Trust.
(4) The undertaker must not exercise the powers conferred by this Order to temporarily interfere with the waterway under article 16 (temporary interference with canal and public rights of navigation) so as to divert any right of access to or any right of navigation along the waterway but such right of access may be diverted with the consent of the Canal and River Trust.
(5) The consent of the Canal and River Trust pursuant to sub-paragraphs (1) to (4) must not be unreasonably withheld or delayed but may be given subject to reasonable terms and conditions.
Commencement Information
I2Sch. 10 para. 19 in force at 29.12.2022, see art. 1
20. Where so required by the engineer the undertaker must to the reasonable satisfaction of the engineer fence off a specified work or a protective work or take such other steps as the engineer may require to be taken for the purpose of separating a specified work or a protective work from the waterway, whether on a temporary or permanent basis or both.
Commencement Information
I3Sch. 10 para. 20 in force at 29.12.2022, see art. 1
21.—(1) Before the commencement of the initial construction of any part of the specified works and again following practical completion of the specified works the undertaker must bear the reasonable and proper cost of the carrying out by a qualified engineer (the “surveyor”), to be approved by the Canal and River Trust and the undertaker, of a survey including a dip-survey to measure the depth of the waterway (“the survey”) of so much of the waterway and of any land and existing works of the undertaker which may provide support for the waterway as will or may be affected by the specified works.
(2) For the purposes of the survey the undertaker must—
(a)on being given reasonable notice (save in case of emergency, when immediate access must be afforded) afford reasonable facilities to the surveyor for access to the site of the specified works and to any land and existing works of the undertaker which may provide support for the waterway as will or may be affected by the specified works; and
(b)supply the surveyor as soon as reasonably practicable with all such information as he may reasonably require and which the undertaker holds with regard to such existing works of the undertaker and to the specified works or the method of their construction.
(3) The reasonable costs of the survey must include the costs of any dewatering or reduction of the water level of any part of the waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey and the provisions of this Part will apply with all necessary modifications to any such dewatering or reduction in the water level as though the same were specified works.
(4) Copies of the survey must be provided to both the Canal and River Trust and the undertaker at no cost to the Canal and River Trust.
Commencement Information
I4Sch. 10 para. 21 in force at 29.12.2022, see art. 1
22.—(1) The undertaker must before commencing construction of any specified work including any temporary works supply to the Canal and River Trust proper and sufficient plans of that work, on the Canal and River Trust forms, having regard to the Canal and River Trust’s Code of Practice and such further particulars available to it as the Canal and River Trust may within 14 days of the submission of the plans reasonably require for the approval of the engineer and must not commence such construction of a specified work until plans of that work have been approved in writing by the engineer or settled by arbitration.
(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld or delayed, and if within 35 days after such plans (including any other particulars reasonably required under sub-paragraph (1)) have been received by the Canal and River Trust the engineer has not intimated his disapproval of those plans and the grounds of his disapproval he is deemed to have approved the plans as submitted.
(3) When signifying approval of the plans the engineer may specify on land held or controlled by the Canal and River Trust or the undertaker and subject to such works being authorised by this Order or being development permitted by an Act of Parliament or general development order made under the 1990 Act—
(a)any protective work (whether temporary or permanent) which in the reasonable opinion of the engineer should be carried out before the commencement of a specified work to prevent detriment; and
(b)such other requirements as may be reasonably necessary to prevent detriment; and such protective works must be constructed by the undertaker or by the Canal and River Trust at the undertaker’s request with all reasonable dispatch and the undertaker must not commence the construction of a specified work until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction such consent not to be unreasonably withheld or delayed.
(4) The undertaker must pay to the Canal and River Trust a capitalised sum representing the reasonably increased or additional cost of maintaining and, when necessary, renewing any works, including any permanent protective works provided under sub-paragraph (3) above, and of carrying out any additional dredging of the waterway reasonably necessitated by the exercise of any of the powers under this Order but if the cost of maintaining the waterway, or of works of renewal of the waterway, is reduced in consequence of any such works, a capitalised sum representing such reasonable saving is to be set off against any sum payable by the undertaker to the Canal and River Trust under this paragraph.
(5) In the event that the undertaker fails to complete the construction of, or part of, the specified works the Canal and River Trust may, if it is reasonably required in order to avoid detriment, serve on the undertaker a notice in writing requesting that construction be completed. Any notice served under this sub-paragraph must state the works that are to be completed by the undertaker and lay out a reasonable timetable for the works’ completion. If the undertaker fails to comply with this notice within 35 days, the Canal and River Trust may construct any of the specified works, or part of such works, (together with any adjoining works) in order to complete the construction of, or part of, the specified works or make such works and the undertaker must reimburse the Canal and River Trust all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.
Commencement Information
I5Sch. 10 para. 22 in force at 29.12.2022, see art. 1
23. Without prejudice to its obligations under the foregoing provisions of this Part of this Schedule the undertaker must consult, collaborate and respond constructively to any reasonable approach, suggestion, proposal or initiative made by the Canal and River Trust on—
(a)the design and appearance of the specified works, including the materials to be used for their construction; and
(b)the environmental effects of those works; and must have regard to such views as may be expressed by the Canal and River Trust to the extent that these accord with the requirements of the local planning authority in response to such consultation pursuant in particular to the requirements imposed on the Canal and River Trust by section 22 (general environmental and recreational duties) of the British Waterways Act 1995(1) and to the interest of the Canal and River Trust in preserving and enhancing the environment of its waterways.
Commencement Information
I6Sch. 10 para. 23 in force at 29.12.2022, see art. 1
24. The undertaker must give to the engineer 30 days’ notice of its intention to commence the construction of any of the specified works or protective works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable so that, in particular, the Canal and River Trust may where appropriate arrange for the publication of notices bringing those works to the attention of users of the Canal and River Trust’s network.
Commencement Information
I7Sch. 10 para. 24 in force at 29.12.2022, see art. 1
25. The undertaker must provide and maintain at its own expense in the vicinity of the specified or protective works such temporary lighting and such signal lights for the control of navigation as the engineer may reasonably require during the construction or failure of the specified or protective works.
Commencement Information
I8Sch. 10 para. 25 in force at 29.12.2022, see art. 1
26.—(1) Any specified works or protective works must, when commenced, be constructed—
(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled as aforesaid and with any specifications made under paragraph 22 and paragraph 23 of this Part;
(b)under the supervision (if given) and to the reasonable satisfaction of the engineer;
(c)in such manner as to cause as little detriment as is reasonably practicable;
(d)in such manner as to cause as little inconvenience as is reasonably practicable to the Canal and River Trust, its officers and agents and all other persons lawfully using the waterways, except to the extent that temporary obstruction has otherwise been agreed by the Canal and River Trust;
(e)in such a manner as to ensure that no materials are discharged or deposited into the waterway otherwise than in accordance with article 14 (Discharge of water); and
(f)in compliance with the Code of Practice (where appropriate and where consistent with the exercise the exercise of powers pursuant to this Order and for the timely, safe, economic and efficient delivery of the authorised works).
(2) Nothing in this Order authorises the undertaker to make or maintain any permanent works in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which the Canal and River Trust is required by section 105(1)(b) and (2) of the Transport Act 1968(2) to maintain the waterway.
(3) Following the completion of the construction of the specified works the undertaker must restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of those works unless otherwise agreed between the undertaker and the Canal and River Trust.
(4) In assessing whether the condition of the waterway is no less satisfactory than immediately prior to the works pursuant to sub-paragraph (3), the Canal and River Trust and the undertaker must take account of any survey issued pursuant to paragraph 21 and any other information agreed between them pursuant to this Part.
Commencement Information
I9Sch. 10 para. 26 in force at 29.12.2022, see art. 1
27. The undertaker must not in the course of constructing a specified work or a protective work or otherwise in connection therewith do or permit anything which may result in the pollution of the waterway or the deposit of materials therein and must take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph.
Commencement Information
I10Sch. 10 para. 27 in force at 29.12.2022, see art. 1
28.—(1) The undertaker on being given reasonable notice must—
(a)at all reasonable times allow reasonable facilities to the engineer for access to a specified work during its construction; and
(b)supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.
(2) The Canal and River Trust on being given reasonable notice must—
(a)at all reasonable times afford reasonable facilities to the undertaker and its agents for access to any works carried out by the Canal and River Trust under this Part during their construction; and
(b)supply the undertaker with such information as it may reasonably require with regard to such works or the method of constructing them and the undertaker must reimburse the Canal and River Trust’s reasonable costs in relation to the supply of such information.
Commencement Information
I11Sch. 10 para. 28 in force at 29.12.2022, see art. 1
29.—(1) If during the construction of a specified work or a protective work or during a period of twenty four (24) months after the completion of those works any alterations or additions, either permanent or temporary, to the waterway are reasonably necessary in consequence of the construction of the specified work or the protective work in order to avoid detriment, and the Canal and River Trust gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the undertaker must pay to the Canal and River Trust the reasonable costs of those alterations or additions including, in respect of any such alterations or additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by the Canal and River Trust in maintaining, working and, when necessary, renewing any such alterations or additions.
(2) If the cost of maintaining, working or renewing the waterway is reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be set off against any sum payable by the undertaker to the Canal and River Trust under this paragraph.
Commencement Information
I12Sch. 10 para. 29 in force at 29.12.2022, see art. 1
30. If at any time after the completion of a specified work or a protective work, not being a work vested in the Canal and River Trust, the Canal and River Trust gives notice to the undertaker informing it that it reasonably considers that the state of maintenance of the work appears to be such that the work is causing or likely to cause detriment, the undertaker must, on receipt of such notice, take such steps as may be reasonably necessary to put the work in such state of maintenance as not to cause such detriment.
Commencement Information
I13Sch. 10 para. 30 in force at 29.12.2022, see art. 1
31.—(1) The undertaker must repay to the Canal and River trust in accordance with the Code of Practice all fees, costs, charges and expenses reasonably incurred by the Canal and River Trust—
(a)in constructing any protective works under the provisions of paragraph 22(3)(a);
(b)in respect of the approval by the engineer of plans submitted by the undertaker and the supervision by the engineer of the construction or repair of a specified work and any protective works;
(c)in respect of the employment during the construction of the specified works or any protective works of any inspectors, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, watching and lighting any waterway and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works or any protective works;
(d)in bringing the specified works or any protective works to the notice of users of the Canal and River Trust’s network; and
(e)in constructing and/or carrying out any measures related to any specified works or protective works which are reasonably required by the Canal and River Trust to ensure the safe navigation of the waterway save that nothing is to require the Canal and River Trust to construct and/or carry out any measures.
(2) If the Canal and River Trust considers that a fee, charge, cost or expense will be payable by the undertaker pursuant to sub-paragraph (1), the Canal and River Trust will first provide an estimate of that fee, charge, cost or expense and supporting information in relation to the estimate to the undertaker along with a proposed timescale for payment for consideration and the undertaker may, within a period of twenty-one days—
(a)provide confirmation to the Canal and River Trust that the estimate is agreed and pay to the Canal and River Trust, by the date stipulated, that fee, charge, cost or expense; or
(b)provide confirmation to the Canal and River Trust that the estimate is not accepted along with a revised estimate and a proposal as to how or why the undertaker considers that the estimate can be reduced and or paid at a later date.
(3) The Canal and River Trust must take in to account any representations made by the undertaker in accordance with this paragraph 31 and must, within twenty-one days of receipt of the information pursuant to sub-paragraph (1), confirm the amount of the fee, charge, cost or expense to be paid by the undertaker (if any) and the date by which this is to be paid.
(4) The Canal and River Trust must, when estimating and incurring any charge, cost or expense pursuant this paragraph 31, do so with a view to being reasonably economic and acting as if the Canal and River Trust were itself to fund the relevant fee, charge, cost or expense.
Commencement Information
I14Sch. 10 para. 31 in force at 29.12.2022, see art. 1
32.—(1) If any detriment is caused by the construction or failure of the specified works or the protective works if carried out by the undertaker, the undertaker (if so required by the Canal and River Trust) must make good such detriment and must pay to the Canal and River Trust all reasonable expenses incurred by the Canal and River Trust, and compensation for any loss sustained by the Canal and River Trust in making good or otherwise by reason of the detriment.
(2) The undertaker must be responsible for and make good to the Canal and River Trust all costs, charges, damages, expenses and losses not otherwise provided for in this Part which may be occasioned to and reasonably incurred by the Canal and River Trust—
(a)by reason of the construction of a specified work or a protective work or the failure of such a work; or
(b)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction of a specified work or protective work; and subject to sub-paragraph (4) the undertaker must effectively indemnify and hold harmless the Canal and River Trust from and against all claims and demands arising out of or in connection with any of the matters referred to in sub-paragraphs (a) and (b) (provided that the Canal and River Trust is not entitled to recover from the undertaker any consequential losses which are not reasonably foreseeable).
(3) The fact that any act or thing may have been done by the Canal and River Trust on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision or in accordance with any directions or awards of an arbitrator is not to (if it was done without negligence on the part of the Canal and River Trust or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this paragraph.
(4) Nothing in sub-paragraph (2) imposes any liability on the undertaker with respect to any detriment, damage, loss or interruption to the extent that it is attributable to the act, neglect or default of the Canal and River Trust, its officers, servants, contractors or agents.
(5) The Canal and River Trust must give the undertaker reasonable notice of any such claim or demand as aforesaid and no settlement or compromise of such a claim or demand is to be made without the prior consent of the undertaker.
(6) The aggregate cap of the undertaker’s gross liability for consequential losses shall be limited to £15,000,000 (fifteen million pounds) for any one occurrence or all occurrences of a series arising out of the one original cause.
Commencement Information
I15Sch. 10 para. 32 in force at 29.12.2022, see art. 1
33. Any difference arising between the undertaker and the Canal and River Trust under this Part (other than a difference as to the meaning or construction of this Part) must be referred to and settled by arbitration in accordance with article 44 (arbitration) of this Order.
Commencement Information
I16Sch. 10 para. 33 in force at 29.12.2022, see art. 1
34. Any capitalised sum which is required to be paid under this Part must be calculated by multiplying the cost of the maintenance or renewal works to the waterway necessitated as a result of the operation of the authorised development by the number of times that the maintenance or renewal works will be required during the operation of the authorised development.
Commencement Information
I17Sch. 10 para. 34 in force at 29.12.2022, see art. 1
1968 c. 73. Sections 105(1) and (2) were amended by paragraph 39 of Schedule 2 to S.I. 2012/1659.