The Transport and Works (Model Clauses for Railways and Tramways) Order 1992

Article 2(a)

SCHEDULE 1 MODEL CLAUSES FOR RAILWAYS

1. PART I PRELIMINARY

   1. 1. Interpretation

   2. 2. Incorporation of Railways Clauses Acts

2. PART II WORKS PROVISIONS

   1. Principal powers

      1. 3. Power to construct works

      2. 4. Power to deviate

   2. Streets

      1. 5. Power to execute street works

      2. 6. Permanent stopping up of streets

      3. 7. Temporary stopping up of streets

      4. 8. Access to works

      5. 9. Construction and maintenance of new or altered streets

      6. 10. Construction of bridges and tunnels

      7. 11. Agreements with street authorities

   3. Supplemental powers

      1. 12. Discharge of water

      2. 13. Safeguarding works to buildings

      3. 14. Power to survey and investigate land

3. PART III ACQUISITION AND POSSESSION OF LAND

   1. Powers of acquisition

      1. 15. Power to acquire land [version A: limits of deviation]

      2. 15. Power to acquire land [version B: specified parcels of land]

      3. 16. Application of Part I of Compulsory Purchase Act 1965

      4. 17. Powers to acquire new rights

      5. 18. Powers to acquire subsoil only

      6. 19. Cases where powers of acquisition limited to subsoil

      7. 20. Rights under streets

   2. Temporary possession of land

      1. 21. Temporary use of land for construction of works

      2. 22. Temporary use of land for maintenance of works

   3. Compensation

      1. 23. Disregard of certain interests and improvements

   4. Supplementary

      1. 24. Acquisition of part of certain properties

      2. 25. Extinction or suspension of private rights of way

      3. 26. Time limit for exercise of powers of acquisition

4. PART IV MISCELLANEOUS AND GENERAL

   1. 27. Power to operate and use railways

   2. 28. Maintenance of approved works etc

   3. 29. Disclosure of confidential information

   4. 30. Statutory undertakers etc

   5. 31. Certification of plans etc

   6. 32. Service of notices

   7. 33. No double recovery

   8. 34. Arbitration

5. SCHEDULES

   1. Schedule 1

      Scheduled works

   2. Schedule 2

      Acquisition of certain land

   3. Schedule 3

      Streets subject to street works

   4. Schedule 4

      Streets to be permanently stopped up

      1. Part I Streets for which a substitute is to be provided

      2. Part II Streets for which no substitute is to be provided

   5. Schedule 5

      Streets to be temporarily stopped up

   6. Schedule 6

      Modification of compensation and compulsory purchase enactments for creation of new rights

   7. Schedule 7

      Land of which only subsoil may be acquired

   8. Schedule 8

      Land of which temporary possession may be taken

   9. Schedule 9

      Provisions relating to statutory undertakers etc

   10. ADDITIONAL CLAUSES RELATING TO LEVEL CROSSINGS

       1. LC1. Provision of level crossing over new highway

       2. LC2. Provision of new level crossing over highway in substitution for existing level crossing

       3. LC3. Closure of level crossing

       4. LC4. Reduction of status of level crossing

MODEL CLAUSES

PART I PRELIMINARY

Interpretation

1.— (1) In this Order, unless the context otherwise requires—

“the 1965 Act” means the [1965 c. 56.] Compulsory Purchase Act 1965;

“the Applications Rules” means the [S.I.1992/2902.] Transport and Works (Applications and Objections Procedure) Rules 1992;

“authorised works” means the scheduled works and any other works authorised by this Order;

“the book of reference” means the book of reference described in rule 7(5) of the Applications Rules prepared in connection with the application for this Order;

“highway” and “highway authority” have the same meaning as in the [1980 c. 66.] Highways Act 1980;

“the land plan” means the plan described in rule 7(3) of the Applications Rules prepared in connection with the application for this Order and references to land shown on that plan are references to land so shown in pursuance of that rule;

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

“owner”, in relation to land, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of land (whether in possession or reversion) and includes a person holding, or entitled to the rents and profits of, the land under a lease or tenancy having an unexpired term exceeding 3 years;

“the scheduled works” means the works specified in Schedule 1 to this Order;

“the sections” means the sections described in rule 7(2) of the Applications Rules prepared in connection with the application for this Order;

“street” means a street within the meaning of section 67(1)(a) of the [1992 c. 42.] Transport and Works Act 1992 and includes part of a street;

“street authority”, in relation to a street, has the same meaning as in Part III of the [1991 c. 22.] New Roads and Street Works Act 1991;

“the tribunal” means the Lands Tribunal;

“the undertaker” means [];

“the works plan” means the plan described in rule 7(1)(a) of the Applications Rules prepared in connection with the application for this Order.

(2) Where the book of reference, the sections, the land plan or the works plan was or were revised before this Order was made, any reference to it or them in this Order is to the latest version as certified under article 31 (certification of plans etc.) below.

(3) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in, on or under land or in the air-space over its surface.

Incorporation of Railways Clauses Acts

2.— (1) The following provisions of the [1845 c. 20.] Railways Clauses Consolidation Act 1845 shall be incorporated in this Order—

• section 24 (obstructing construction of railway);

• section 46 (crossing of roads—level crossings);

• section 47 (provision in cases where roads are crossed on a level);

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

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

• section 68 (accommodation works by company);

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

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

• section 75 (omission to fasten gates):

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

• sections 78 to 85E and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by section 15 of the [1923 c. 20.] Mines (Working Facilities and Support) Act 1923;

• sections 103 and 104 (refusal to quit carriage at destination);

• section 105 (carriage of dangerous goods on railway);

• section 145 (recovery of penalties);

• section 152 (damage to property of company to be made good), except for the words from “and the amount of such damages” to the end; and

• section 154 (transient offenders).

(2) The following provisions of the [1863 c. 92.] Railways Clauses Act 1863 shall be incorporated in this Order—

• sections 5, 6 and 7 (level crossings); and

• section 12 (signals, watchmen etc.).

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

“the company” means the undertaker;

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

“lease” includes an agreement for a lease;

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

“the railway” means any railway authorised to be constructed by this Order and, except where the context otherwise requires, any others authorised works;

“the special Act” means this Order;

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

(4) In section 46 of the said Act of 1845, as incorporated in this Order, for the proviso there shall be substituted the words “Provided always, that, with the consent of the highway authority and subject to such conditions as the authority may reasonably impose, the railway may be carried across a highway on the level”.

PART II WORKS PROVISIONS

Principal powers

Power to construct works

3.— (1) The undertaker may construct and maintain the scheduled works.

(2) Subject to article 4 (power to deviate) below, the scheduled works shall be constructed in the lines or situations shown on the works plan and in accordance with the levels shown on the sections.

(3) Subject to paragraph (5) below, the undertaker may carry out and maintain such of the following works as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the scheduled works, namely—

(a) works to alter the position of apparatus, including mains, sewers, drains and cables,

(b) works to alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses,

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

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

(4) Subject to paragraph (5) below, the undertaker may carry out 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 scheduled works.

(5) Paragraphs (3) and (4) above—

(a) shall only authorise the carrying out or maintenance of works outside the [limits of deviation for][lines or situations of]the scheduled works shown on the works plan if the works are carried out on land specified in columns (1) and (2) of Schedule 2 to this Order for the purpose specified in relation to that land in column (3) of that Schedule, and

(b) shall not authorise the carrying out or maintenance of works to alter the course of, or otherwise interfere with, navigable rivers or watercourses.

NOTE In paragraph (5)(a)—second set of square bracketed words to be used, instead of first, if version B of article 15 (power to acquire land) is adopted.

Power to deviate

4.   In constructing or maintaining any of the scheduled works, the undertaker may—

[(a) deviate laterally from the lines or situations shown on the works plan within the limits of deviation for that work shown on that plan, and

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

(i) to any extent not exceeding [] upwards, or

(ii) to any extent not exceeding [] downwards.

NOTE Words in square brackets to be omitted if version B of article 15 (power to acquire land) is adopted.

Streets

Power to execute street works

5.— (1) The undertaker may, for the purposes of the authorised works, enter upon so much of any of the streets specified in Schedule 3 to this Order as is within the [limits of deviation for] [lines or situations of] the scheduled works shown on the works plan and may—

(a) place apparatus in the street,

(b) maintain apparatus in the street or change its position, and

(c) execute any works required for or incidental to any works referred to in sub-paragraphs (a) and (b) above (including, in particular, breaking up or opening the street, or any sewer, drain or tunnel under it, or tunnelling or boring under the street).

(2) This article is subject to paragraph 3 of Schedule 9 (provisions relating to statutory undertakers etc.) to this Order.

(3) In this article “apparatus” has the same meaning as in Part III of the [1991 c. 22.] New Roads and Street Works Act 1991.

NOTE In paragraph (1)—second set of square bracketed words to be used, instead of first, if version B of article 15 (power to acquire land) is adopted.

Permanent stopping up of streets

6.— (1) Subject to the provisions of this article, the undertaker 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 4 to this Order to the extent specified, by reference to the letters and numbers shown on the works plan, in column (3) of Parts I and II of that Schedule.

(2) No street specified in columns (1) and (2) of Part I of Schedule 4 to this Order (being a street to be stopped up for which a substitute is to be provided) shall be wholly or partly stopped up under this article until the new street to be substituted for it, and which is specified in relation to it by reference to the letters and numbers shown on the works plan in column (4) of that Part of that Schedule has been completed to the reasonable satisfaction of the street authority and is open for use.

(3) No street specified in columns (1) and (2) of Part II of Schedule 4 to this Order (being a street to be stopped up for which no substitute is to be provided) shall be wholly or partly stopped up under this article unless the condition specified in paragraph (4) below 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) above is that—

(a) the undertaker is in possession of the land, or

(b) there is no right of access to the land from the street concerned, or

(c) there is reasonably convenient access to the land otherwise than from the street concerned, or

(d) the owners and occupiers of the land have agreed to the stopping up.

(5) Where a street has been permanently stopped up under this article—

(a) all rights of way over or along the street so stopped up shall be extinguished, and

(b) the undertaker may, without making any payment but subject to sections 77 to 85E of, and Schedules 1 to 3 to, the [1845 c. 20.] Railways Clauses Consolidation Act 1845 (which relate to minerals under railways) appropriate and use for the purposes of its railway undertaking so much of the site of the street as is bounded on both sides by land owned by the undertaker.

(6) 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 c. 33.] Land Compensation Act 1961.

(7) This article is subject to paragraph 2 of Schedule 9 (provisions relating to statutory undertakers etc.) to this Order.

Temporary stopping up of streets

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

(a) divert the traffic from the street, and

(b) subject to paragraph (2) below, prevent all persons from passing along the street.

(2) The undertaker 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.

(3) Without prejudice to the generality of paragraph (1) above, the undertaker may exercise the powers of this article in relation to the streets specified in columns (1) and (2) of Schedule 5 to this Order to the extent specified, by reference to the letters and numbers shown on the works plan, in column (3) to that Schedule.

(4) The undertaker shall not exercise the powers of this article—

(a) in relation to any street specified as mentioned in paragraph (3) above without first consulting the street authority, and

(b) in relation to any other street without the consent of the street authority, but such consent shall not be unreasonably withheld.

(5) The provisions of the [1991 c. 22.] New Roads and Street Works Act 1991 mentioned in paragraph (6) below 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 the undertaker 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 the undertaker.

(6) The provisions of the New Roads and Street Works Act 1991 referred to in paragraph (5) above are—

• section 54 (advance notice of certain works);

• section 55 (notice of starting date of works);

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

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

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

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

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

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

Access to works

8.   The undertaker may, for the purposes of the scheduled works, form and lay out means of access or improve existing means of access in such location or locations within the [limits of deviation for] [lines or situations of] those works shown on the works plan as may be approved by the highway authority, but such approval shall not be unreasonably withheld.

NOTE Second set of square bracketed words to be used, instead of first, if version B of article 15 (power to acquire land) is adopted.

Construction and maintenance of new or altered streets

9.— (1) Any street (other than [specified private streets]) 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 the undertaker for a period of 24 months from its completion and at the expiry of that period by and at the expense of the highway authority.

(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 the undertaker 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) above do not apply in relation to the structure of any bridge or tunnel carrying a street over or under any railway of the undertaker.

(4) Nothing in this article shall prejudice the operation of section 87 of the [1991 c. 22.] New Roads and Street Works Act 1991 (prospectively maintainable highways); and the undertaker 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 New Roads and Street Works Act 1991 apply.

NOTE Where a private street is to be constructed it should be excepted from paragraph (1) and the article should specify the person by whom the street is to be maintained at the expiry of the 24-month period.

Construction of bridges and tunnels

10.   Any bridge or tunnel to be constructed under this Order for carrying a highway over or under a railway shall be constructed in accordance with plans and specifications approved by the highway authority, but such approval shall not be unreasonably withheld.

Agreements with street authorities

11.— (1) A street authority and the undertaker may enter into agreements with respect to—

(a) the construction of any new street (including any structure carrying the street over or under a railway) under the powers conferred by this Order,

(b) the maintenance of the structure of any bridge or tunnel carrying a street over or under a railway,

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

(d) the execution in the street of any of the works referred to in article 5(1) (power to execute street works) above.

(2) Such an agreement may, without prejudice to the generality of paragraph (1) above—

(a) delegate to the street authority any function under this Order which relates to the street in question, and

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

Supplemental powers

Discharge of water

12.— (1) The undertaker 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 shown on the land plan, make openings into, and connections with, the watercourse, sewer or drain.

(2) The undertaker 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) The undertaker 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) The undertaker shall not, in the exercise of the powers conferred by this article, damage or interfere with the beds or banks of any watercourse forming part of a main river.

(5) The undertaker 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 form gravel, soli 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 [1991 c. 57.] Water Resources Act 1991.

(7) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the National Rivers Authority, an internal drainage board, a local authority, a joint planning board, the Commission for the New Towns, an urban development corporation or a harbour authority within the meaning of the [1964 c. 40.] Harbours Act 1964,

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

(c) other expressions used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act.

Safeguarding works to buildings

13.— (1) Subject to the following provisions of this article, the undertaker may at its own expense and from time to time carry out such safeguarding works to any building lying within—

(a) [] metres of any authorised works relating to the construction of an underground railway, or

(b) [] metres of any other authorised works,

as the undertaker considers to be necessary or expedient.

(2) Safeguarding works may be carried out—

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

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

(3) For the purpose of determining how the functions under this article are to be exercised the undertaker may enter and survey any building falling within paragraph (1) above and any land belonging to it.

(4) For the purpose of carrying out safeguarding works under this article to a building the undertaker may (subject to paragraphs (5) and (6) below)—

(a) enter the building and any land belonging to it, and

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

(5) Before exercising—

(a) a right under paragraph (1) above to carry out safeguarding works to a building,

(b) a right under paragraph (3) above to enter a building,

(c) a right under paragraph (4)(a) above to enter a building or land, or

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

the undertaker shall, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days notice of its intention to exercise that right and, in a case falling within sub-paragraph (a) or (c) above, specifying the safeguarding works proposed to be carried out.

(6) Where notice is served under paragraph (5)(a), (c) or (d) above, 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 safeguarding works or to enter the building or land to be referred to arbitration under article 34 (arbitration) below.

(7) The undertaker 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.

• Where—

  (a)

  safeguarding works are carried out under this article to a building, and

  (b)

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

  the undertaker shall compensate the owners and occupiers of the building for any damage sustained by them.

(9) Nothing in this article shall relieve the undertaker from any liability to pay compensation under section 10(2) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) above shall be determined, in case of dispute, under Part I of the [1961 c. 33.] Land Compensation Act 1961.

(11) In this article—

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

(b) any reference to a building within a specified distance of a work includes—

(i) in the case of a work under the surface of the ground, a reference to any building within the specified distance of the point on the surface below which the work is situated, and

(ii) where a work has not commenced, a reference to a building within the specified distance of the proposed site of the work, and

(c) “safeguarding works”, in relation to a building, means—

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

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

NOTE The specified distance is normally 50 metres in the case of an underground railway and 35 metres in the case of other railway works.

Power to survey and investigate land

14.— (1) The undertaker may for the purposes of this Order—

(a) survey or investigate any land shown on the land plan or which may be affected by the authorised works,

(b) without prejudice to the generality of sub-paragraph (a) above, make trial holes in such positions as the undertaker thinks fit on the land to investigate the nature of the surface layer and subsoil and remove soil samples,

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

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

(2) No land may be entered, or equipment placed or left on or removed from the land under paragraph (1) above, 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 the undertaker—

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

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

(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) The undertaker 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 Land Compensation Act 1961.

PART III ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land [version A: limits of deviation]

15.— (1) The undertaker may acquire compulsorily—

(a) so much of the land shown on the land plan within the limits of deviation for the scheduled works shown on that plan and described in the book of reference as may be required for the purposes of the authorised works, and

(b) so much of the land specified in columns (1) and (2) of Schedule 2 to this Order (being land shown on the land plan and described in the book of reference) as may be required for the purpose specified in relation to that land in column (3) of that Schedule;

and may use any land so acquired for those purposes or for any other purposes connected with or ancillary to its railway undertaking.

(2) This article is subject to article 19(2) (cases where powers of acquisition limited to subsoil) and article 21(8) (temporary use of land for construction of works) below.

NOTE This version of article 15 is for adoption by promoters whose plans show limits of deviation for the scheduled works.

Power to acquire land [version B:specified parcels of land]

15.— (1) The undertaker may acquire compulsorily—

(a) so much of the land shown on the land plan and described in the book of reference as may be required for the purposes of the authorised works, and

(b) so much of the land specified in columns (1) and (2) of Schedule 2 to this Order (being land shown on the land plan and described in the book of reference) as may be required for the purpose specified in relation to that land in column (3) of that Schedule;

and may use any land so acquired for those purposes or for any other purposes connected with or ancillary to its railway undertaking.

(2) This article is subject to article 19(2) (cases where powers of acquisition limited to subsoil) and article 21(8) (temporary use of land for construction of works) below.

NOTE This version of article 15 is for adoption by promoters whose plans do not show limits of deviation for the scheduled works.

Application of Part I of Compulsory Purchase Act 1965

16.— (1) Part I of the 1965 Act, insofar as not modified by or inconsistent with the provisions of this Order, shall apply to the acquisition of land under this Order—

(a) as it applies to a compulsory purchase to which the [1981 c. 67.] Acquisition of Land Act 1981 applies, and

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

(2) Part I of the 1965 Act, as so applied, shall have effect as if—

(a) section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provision as to the giving of bonds) were omitted, and

(b) in section 11(1) (which confers power to enter on and to take possession of land subject to a notice to treat on giving not less than 14 days notice) for the reference to 14 days notice there were substituted—

(i) in a case where the notice to treat relates only to the acquisition of subsoil or the acquisition of an easement or other right over the land, a reference to notice of one month, or

(ii) in any other case, a reference to notice of 3 months.

Powers to acquire new rights

17.— (1) The undertaker may compulsorily acquire such easements or other rights over any land referred to in paragraph (1)(a) or (b) of article 15 (power to acquire land) above 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 6 to this Order), where the undertaker acquires a right over land under paragraph (1) above the undertaker shall not be required to acquire a greater interest in it.

(3) Schedule 6 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.

Powers to acquire subsoil only

18.— (1) The undertaker may compulsorily acquire so much of the subsoil of the land referred to in paragraph (1)(a) or (b) of article 15 (power to acquire land) above 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 the undertaker acquires any part of the subsoil of land under paragraph (1) above the undertaker shall not be required to acquire an interest in any other part of the land.

(3) Paragraph (2) above shall not prevent article 24 (acquisition of part of certain properties) below from applying where the undertaker acquires a cellar, vault, arch or other construction forming part of a house, building or factory.

Cases where powers of acquisition limited to subsoil

19.— (1) This article applies to the land specified in Schedule 7 to this Order.

(2) In the case of land to which this article applies, the undertaker’s powers of compulsory acquisition under article 15 (power to acquire land) above shall be limited to the acquisition of, or of rights in, so much of the subsoil of the land as may be required for the purposes of the authorised works.

(3) Where the undertaker acquires any part of, or 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) References in this article to the subsoil of land are references to the subsoil lying more than 9 metres beneath the level of the surface of the land; and for this purpose “the level of the surface of the land” means—

(a) in the case of any land on which a building is erected, the level of the surface of the ground adjoining the building,

(b) in the case of a river, dock, canal, navigation, watercourse or other water area, the level of the surface of the ground nearest to it which is at all times above water level, or

(c) in any other case, ground surface level.

Rights under streets

20.— (1) The undertaker may enter upon and appropriate so much of the subsoil of any street shown on the land plan and described in the book of reference 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) above may be exercised in relation to a street without the undertaker being required to acquire any part of the street or any easement or right in the street.

(3) The undertaker shall not be required to pay any compensation for the exercise of the powers conferred by paragraph (1) above where the street is a highway; but where the street is not a highway any person suffering 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 c. 33.] Land Compensation Act 1961.

(4) Paragraphs (2) and (3) above shall not apply in relation to—

(a) any subway or underground building, or

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

Temporary possession of land

Temporary use of land for construction of works

21.— (1) The undertaker may, in connection with the carrying out of the authorised works—

(a) enter upon and take temporary possession of the land specified in columns (1) and (2) of Schedule 8 to this Order for the purpose specified in relation to that land in column (3)of that Schedule relating to the authorised works specified in column (4) of that Schedule,

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

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

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

(3) The undertaker 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 specified in relation to that land in column (4) of Schedule 8 to this Order.

(4) Before giving up possession of land of which temporary possession has been taken under this article, the undertaker shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker shall not be required to replace a building removed under this article.

(5) The undertaker 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.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5) above, or as to the amount of the compensation, shall be determined under Part I of the [1961 c. 33.] Land Compensation Act 1961.

(7) Without prejudice to article 33 (no double recovery) below, 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 (5) above.

(8) The powers of compulsory acquisition of land conferred by this Order shall not apply in relation to the land referred to in paragraph (1) above except that the undertaker shall not be precluded from—

(a) acquiring new rights over any part of that land under article 17 (powers to acquire new rights) above, or

(b) acquiring any part of the subsoil (or rights in the subsoil) of that land under article 18 (powers to acquire subsoil only) above or in accordance with article 19 (cases where powers of acquisition limited to subsoil) above.

(9) Where the undertaker takes possession of land under this article, it shall not be required to acquire the land or any interest in it.

(10) In this article “building” includes structure or any other erection.

Temporary use of land for maintenance of works

22.— (1) At any time during the maintenance period relating to any of the scheduled works, the undertaker may—

(a) enter upon and take temporary possession of any land within [] metres from that work if such possession is reasonably required for the purpose of, or in connection with, maintaining the work or any ancillary works connected with it,

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

(2) Paragraph (1) above shall not authorise the undertaker to take temporary possession of—

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

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

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

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

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

(6) The undertaker 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) above, or as to the amount of the compensation, shall be determined under Part I of the [1961 c. 33.] Land Compensation Act 1961.

(8) Without prejudice to article 33 (no double recovery) below, 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) above.

(9) Where the undertaker takes possession of land under this article, it shall not be required to acquire the land or any interest in it.

(10) In this article—

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

(b) “building” includes structure or any other erection, and

(c) any reference to land within a specified distance of a work includes, in the case of a work under the surface of the ground, a reference to land within the specified distance of the point on the surface below which the work is situated.

Compensation

Disregard of certain interests and improvements

23.— (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—

(a) any interest in land, or

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

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

(2) In paragraph (1) above “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.

Supplementary

Acquisition of part of certain properties

24.— (1) This article shall apply instead of section 8(1) of the 1965 Act (as applied by article 16 (application of Part I of [1965 c. 56.] Compulsory Purchase Act 1965) above) in any case where—

(a) a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or factory or of land consisting of a house with a park or garden (“the land subject to the notice to treat”), and

(b) a copy of this article is served on the owner with the notice to treat.

(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 the undertaker 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 the undertaker 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—

(a) without material detriment to the remainder of the land subject to the counter-notice, or

(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

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—

(a) without material detriment to the remainder of the land subject to the counter-notice, or

(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

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—

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice, but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

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 the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land subject to the counter-notice, or if the tribunal determine that—

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house, and

(b) that the material detriment is not confined to a part of the land subject to the counter-notice,

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 the undertaker 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, the undertaker 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, the undertaker 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

25.— (1) All private rights of way over land subject to compulsory acquisition under this Order shall be extinguished—

(a) as from the acquisition of the land by the undertaker, whether compulsorily or by agreement, or

(b) on the entry on the land by the undertaker under section 11(1) of the 1965 Act,

whichever is sooner.

(2) All private rights of way over land of which the undertaker takes temporary possession under this Order shall be suspended and unenforceable for as long as the undertaker 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 c. 33.] Land Compensation Act 1961.

(4) This article does not apply in relation to any right of way to which section 271 or 272 of the [1990 c. 8.] Town and Country Planning Act 1990 (extinguishment of rights of statutory undertakers etc.) or paragraph 2 of Schedule 9 (provisions relating to statutory undertakers etc.) to this Order applies.

Time limit for exercise of powers of acquisition

26.— (1) The powers conferred by this Order to acquire land or rights over land compulsorily, and the power conferred by article 21 (temporary use of land for construction of works) above to enter upon and take temporary possession of land, shall cease at the end of the period of 5 years beginning on the day on which this Order comes into force.

(2) Paragraph (1) above shall not prevent the undertaker remaining in possession of land in accordance with article 21 above after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART IV MISCELLANEOUS AND GENERAL

Power to operate and use railways

27.   The undertaker may operate and use the railways and other authorised works as a system, or part of a system, of transport for the carriage of passengers and goods.

Maintenance of approved works etc.

28.— (1) Where pursuant to regulations made under section 41 of the [1992 c. 42.] Transport and Works Act 1992 (approval of works, plant and equipment) approval has been obtained from the Secretary of State with respect to any works, plant or equipment (including vehicles) forming part of the railways authorised by this Order, such works, plant and equipment shall not be used in a state or condition other than that in which they were at the time that the approval was given unless any change thereto does not materially impair the safe operation of the railways so authorised.

(2) If without reasonable cause the provisions of paragraph (1) above are contravened, the undertaker shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) No proceedings shall be instituted in England and Wales in respect of an offence under this article except by or with the consent of the Secretary of State or the Director of Public Prosecutions.

Disclosure of confidential information

29.   A person who—

(a) enters a factory, workshop or workplace in pursuance of the provisions of article 13 (safeguarding works to buildings) or 14 (power to survey and investigate land) above, and

(b) discloses to any person any information obtained by him relating to any manufacturing process or trade secret,

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.

Statutory undertakers etc.

30.   The provisions of Schedule 9 (provisions relating to statutory undertakers etc.) to this Order shall have effect.

Certification of plans etc.

31.   The undertaker shall, as soon as practicable after the making of this Order, submit copies of the book of reference, the sections, the land plan and the works plan to the Secretary of State for certification that they are, respectively, the book of reference, sections and plans referred to in this Order; and a document so certified shall be admissible in any proceedings as evidence of its contents.

Service of notices

32.— (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 [1978 c. 30.] Interpretation Act 1978 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) above is, if he has given an address for service, that address, and otherwise—

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

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

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

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

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

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

No double recovery

33.   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

34.   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.

SCHEDULES

Article 1

SCHEDULE 1 SCHEDULED WORKS

Articles 3 and 15

SCHEDULE 2 ACQUISITION OF CERTAIN LAND

(1)	(2)	(3)
Area	Number of land shown on land plan	Purpose for which land may be acquired

Article 5

SCHEDULE 3 STREETS SUBJECT TO STREET WORKS

(1)	(2)
Area	Street subject to street works

Article 6

SCHEDULE 4 STREETS TO BE PERMANENTLY STOPPED UP

PART I STREETS FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

(1)	(2)	(3)	(4)
Area	Street to be stopped up	Extent of stopping up	New street to be substituted

PART II STREETS FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

(1)	(2)	(3)
Area	Street to be stopped up	Extent of stopping up

Article 7

SCHEDULE 5 STREETS TO BE TEMPORARILY STOPPED UP

(1)	(2)	(3)
Area	Street to be stopped up	Extent of temporary stopping up

Article 17

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

Compensation enactments

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

2.— (1) Without prejudice to the generality of paragraph 1 above, the [1973 c. 26.] Land Compensation Act 1973 shall have effect subject to the modifications set out in sub-paragraphs (2) and (3) below.

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 4 below—

(a) for the words “land is acquired or taken” there shall be substituted the words “a right over land is purchased”, and

(b) for the words “acquired or taken from him” there shall be substituted the words “over which the right is exercisable”.

(3) In section 58(1) (determination of material detriment where part of house etc. proposed for compulsory acquisition), as it applies to determinations under section 8 of the 1965 Act as substituted by paragraph 5 below—

(a) for the word “part” in paragraphs (a) and (b) there shall be substituted the words “a right over land consisting”,

(b) for the word “severance” there shall be substituted the words “right over the whole of the house, building or manufactory or of the house and the park or garden”,

(c) for the words “part proposed” there shall be substituted the words “right proposed”, and

(d) for the words “part is” there shall be substituted the words “right is”.

Adaptation of the 1965 Act

3.— (1) The 1965 Act shall have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are to be read (according to the requirements of the particular context) as referring to, or as including references to—

(a) the right acquired or to be acquired, or

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

(2) Without prejudice to the generality of sub-paragraph (1) above, 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—

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

5.   For section 8 of the 1965 Act (which relates to cases in which a vendor cannot be required to sell part only of a building or garden) there shall be substituted the following—

(1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)—

(a) a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Lands Tribunal (“the tribunal”); and

(b) before the tribunal has determined that question the person satisfies the tribunal that he has an interest which he is able and willing to sell in the whole of the relevant land and—

(i) where that land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land, or

(ii) where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs,

the [] Order 199[] (“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—

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

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

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

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

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

7.   Section 11 of the 1965 Act (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority have served notice to treat in respect of any right, they have power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act shall be modified correspondingly.

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

9.   Section 22 of the 1965 Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) shall be so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

Article 19

SCHEDULE 7 LAND OF WHICH ONLY SUBSOIL MAY BE ACQUIRED

(1)	(2)
Area	Number of land shown on land plan

Article 21

SCHEDULE 8 LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1)	(2)	(3)	(4)
Area	Number of land shown on land plan	Purpose for which temporary possession may be taken	Authorised work

Article 30

SCHEDULE 9 PROVISIONS RELATING TO STATUTORY UNDERTAKERS ETC.

Apparatus of statutory undertakers etc. on land acquired

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

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

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

(4) Sub-paragraph (3) above shall not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

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

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

shall be entitled to recover from the undertaker compensation in respect of expenditure recently 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) above, as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which paragraph 2 below or Part III of the [1991 c. 22.] New Roads and Street Works Act 1991 applies.

(6) In this paragraph—

“the 1990 Act” means the [1990 c. 8.] Town and Country Planning Act 1990;

“public telecommunications operator” means—

(a)

a person authorised, by a licence to which section 9 of the [1984 c. 12.] Telecommunications Act 1984 applies, to run a public telecommunications system, or

(b)

a person to whom the telecommunications code has been applied pursuant to section 10 of that Act; and

“public utility undertakers” has the same meaning as in the [1980 c. 66.] Highways Act 1980.

Apparatus of statutory undertakers etc. in stopped up streets

2.— (1) Where a street is stopped up under article 6 (permanent stopping up of streets) of this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street shall have the same powers and rights in respect of that apparatus, subject to the provisions of this paragraph, as if this Order had not been made.

(2) Where a street is stopped up under article 6 (permanent stopping up of streets) of this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street may and, if reasonably requested so to do by the undertaker, shall—

(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the utility may reasonably determine and have power to place it, or

(b) provide other apparatus in substitution for the existing apparatus and place it in such position as aforesaid.

(3) Subject to the following provisions of this paragraph, the undertaker shall pay to any statutory utility an amount equal to the cost reasonably incurred by the utility in or in connection with—

(a) the execution of relocation works required in consequence of the stopping up of the street, and

(b) the doing of any other work or thing rendered necessary by the execution of relocation works.

(4) If in the course of the execution of relocation works under sub-paragraph (2) above—

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker, 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) above shall be reduced by the amount of that excess.

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

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

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

(6) An amount which apart from this sub-paragraph would be payable to a statutory utility in respect of works by virtue of sub-paragraph (3) above (and having regard, where relevant, to sub-paragraph (4) above) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7½ years 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) above shall not apply where the authorised works constitute major transport works for the purposes of Part III of the [1991 c. 22.] New Roads and Street Works Act 1991, but instead—

(a) the allowable costs of the relocation works shall be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) and any regulations for the time being having effect under that section, and

(b) the allowable costs shall be borne by the undertaker and the statutory utility in such proportions as may be prescribed by any such regulations.

(8) In this paragraph—

• “apparatus” has the same meaning as in Part III of the New Roads and Street Works Act 1991;

• “relocation works” means works executed, or apparatus provided, under sub-paragraph (2)above; and

• “statutory utility” means a statutory undertaker for the purposes of the [1980 c. 66.] Highways Act 1980 or a public telecommunications operator as defined in paragraph 1(6) above.

Railway and navigation undertakings

3.— (1) Subject to the following provisions of this paragraph, the powers under article 5 (power to execute street works) of this Order to break up or open a street shall not be exercisable where the street, not being a highway maintainable at public expense (within the meaning of the [1980 c. 66.] Highways Act 1980)—

(a) is under the control or management of, or is maintainable by, railway or tramway undertakers or a navigation authority, or

(b) forms part of a level crossing belonging to any such undertakers or to such an authority or to any other person,

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) above shall not apply to the carrying out under this Order of emergency works, within the meaning of Part III of the [1991 c. 22.] New Roads and Street Works Act 1991.

(3) A consent given for the purposes of sub-paragraph (1) above 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.

ADDITIONAL MODEL CLAUSES RELATING TO LEVEL CROSSINGS

Provision of level crossing over new highway

LC1— (1) In this article—

• “barrier” includes gate;

• “the highway authority” means [];

• “the new highway” means [] proposed to be constructed by the highway authority;

• “the new level crossing” means a new level crossing in [] at the point (at or in the vicinity of reference point [] where the new highway will cross the railway;

• “protective equipment” includes lights, traffic signs (within the meaning of section 64(1) of the [1984 c. 27.] Road Traffic Regulation Act 1984), manual, mechanical, automatic, electrical or telephonic equipment or other devices;

• “the railway” means []

(2) The highway authority and the undertaker may enter into agreements with respect to the construction and maintenance of the new level crossing; and such an agreement may contain such terms as to payment or otherwise as the parties consider appropriate.

(3) The undertaker may provide, maintain and operate at or near the new level crossing such barriers or other protective equipment as the Secretary of State may in writing approve.

Provision of new level crossing over highway in substitution for existing level crossing

LC2— (1) In this article—

• “barrier” includes gate;

• “the existing level crossing” means [];

• “the highway authority” means [];

• “the level crossing enactments” means [];

• “the new highway” means [] proposed to be constructed by the highway authority;

• “the new level crossing” means a new level crossing in [] at the point (at or in the vicinity of reference point []) where the new highway will cross the railway;

• “protective equipment” includes lights, traffic signs (within the meaning of section 64(1) of the [1984 c. 27.] Road Traffic Regulation Act 1984), manual, mechanical, automatic, electronic or telephonic equipment or other devices;

• “the railway”means [].

(2) The highway authority and the undertaker may enter into agreements with respect to the construction and maintenance of the new level crossing; and such an agreement may contain such terms as to payment or otherwise as the parties consider appropriate.

(3) The undertaker may provide, maintain and operate at or near the new level crossing such barriers or other protective equipment as the Secretary of State may in writing approve.

(4) As from the completion and opening for public use of the new level crossing all rights of way over the existing level crossing shall be extinguished (subject to paragraph 2 of Schedule 9 (provisions relating to statutory undertakers etc.) to this Order ) and the provisions of the level crossing enactments shall cease to apply to it.

(5) 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 c. 33.] Land Compensation Act 1961.

NOTE This article should be expressed to be subject to provisions equivalent to paragraph 2 of Schedule 9.

Closure of level crossing

LC3— (1) In this article—

“the highway authority” means [];

“the level crossing” means [];

“the level crossing enactments” means [];

“the new accommodation works” means [];

“the railway” means [];

“the [road/bridleway/footpath]” means [].

(2) [Subject to paragraphs (3) and (4) below] the undertaker may stop up so much of the [road/bridleway/footpath] as lies within the boundaries of land owned by the undertaker.

(3) Upon the stopping up of the part of the [road/bridleway/footpath] referred to in paragraph (2) above, any right of way [other than a right of way on foot or on a pedal cycle or on horseback or leading a horse] over that part shall be extinguished (subject to paragraph 2 of Schedule 9 (provisions relating to statutory undertakers etc.) to this Order) and the level crossing enactments shall cease to apply to the level crossing.

[(4) Paragraphs (2) and (3) above shall not take effect until the new accommodation works have been completed and are open for use.]

(5) 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 c. 33.] Land Compensation Act 1961.

NOTE This article should be expressed to be subject to provisions equivalent to paragraph 2 of Schedule 9.

Reduction of status of level crossing

LC4— (1) In this article—

“the level crossing” means [];

“the level crossing enactments” means [];

“the protective works” means [];

“the railway” means [];

“the road” means [].

(2) Subject to paragraphs (3) to (5) below, the undertaker may stop up so much of the road as lies within the boundaries of land owned or occupied by the undertaker.

(3) Upon the stopping up of the part of the road referred to in paragraph (2) above, any right of way [other than a right of way on foot or on pedal cycle or on horseback or leading a horse] over that part shall be extinguished (subject to paragraph 2 of Schedule 9 (provisions relating to statutory undertakers etc. ) to this Order) and the level crossing enactments shall cease to apply to the level crossing.

(4) The undertaker shall—

(a) provide and maintain the protective works, and

(b) maintain the level crossing (including the gates) for the benefit of the owners and occupiers of the land adjoining the railway including, in particular, the owners and occupiers of any land crossed by the railway.

(5) 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 Land Compensation Act 1961.

NOTE This article should be expressed to be subject to provisions equivalent to paragraph 2 of Schedule 9.