The Leeds Supertram (Land Acquisition and Road Works) Order 2001

Article 23

SCHEDULE 5 FOR PROTECTION OF RAILTRACK

1.  The following provisions of this Schedule shall, unless otherwise agreed in writing between the Executive and Railtrack, have effect.

2.  In this Schedule—

• “construction” includes placing, alteration and renewal;

• “the engineer” means an engineer to be appointed by Railtrack;

• “plans” includes sections, drawings, specifications, particulars and descriptions (including descriptions of methods of construction), staging proposals and programmes;

• “protective works” means any such works as are mentioned in paragraph 8(a) below;

• “Railtrack” means Railtrack PLC and any associated company of Railtrack PLC which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 736 of the Companies Act 1985(1)) the holding company of Railtrack PLC, a subsidiary of Railtrack PLC or another subsidiary of the holding company of Railtrack PLC;

• “railway property” means any railway of Railtrack and any works connected therewith for the maintenance or operation of which Railtrack are responsible, and includes any lands held or used by Railtrack for the purposes of such railway or works;

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

3.  The Executive shall not under the powers of this Order acquire compulsorily any relevant railway property, save that subject to paragraph 5 below they may acquire such easements or other rights in or over any relevant railway property which is shown on the land plans as they may reasonably require for the purposes of the specified works; and for this purpose “relevant railway property” means any railway property acquired by Railtrack before 10th June 1998 which is not specified in clause 10(5)(b) of the agreement referred to in paragraph 1(1)(c) of Schedule 6.

4.  Article 5 of this Order shall not apply in relation to the acquisition of, or the acquisition of any easement or other right in or over, any railway property.

5.  The Executive shall not under the powers of this Order, without the consent of Railtrack, enter upon or use (whether temporarily or permanently) or acquire any new easement or right pursuant to paragraph 3 above in—

(a) so much of the land in the City shown numbered 60 on the land plans as lies east of Wakefield Road;

(b) so much of the land in the City shown numbered 65 on the land plans as lies adjacent to Valley Farm Road on its north-western side; and

(c) the land in the City shown numbered 67 on the land plans.

6.—(1) The Executive shall, before commencing the construction of the specified works, supply to Railtrack proper and sufficient plans thereof for the approval of the engineer and shall not commence the specified works until plans thereof have been approved in writing by the engineer or settled by arbitration.

(2) Approval of plans supplied under this paragraph shall not be unreasonably withheld and, if within 56 days after such plans have been supplied to Railtrack the engineer shall not have notified his disapproval thereof and the grounds of his disapproval, he shall be deemed to have approved the plans as supplied.

7.—(1) If, within 56 days after such plans have been supplied to Railtrack, Railtrack give notice to the Executive that Railtrack desire themselves to construct any part of the specified works which, in the opinion of the engineer, will or may affect the stability of railway property or the safe operation of traffic on the railways of Railtrack, then, if the Executive desire such part of the specified works to be constructed, Railtrack shall construct it with all reasonable dispatch on behalf of, and to the reasonable satisfaction of, the Executive in accordance with the plans approved or deemed to be approved or settled as aforesaid.

(2) Sub-paragraph (1) shall not apply where the only reason why the specified works (or the part of the specified works in question) may affect railway property is that the works or the operation of the works may cause interference with electrical or electronic apparatus or equipment forming part, or used in connection with, railway property.

8.  The engineer may approve the plans subject to—

(a) such reasonable conditions that—

(i) before the construction of the specified works; or

(ii) before the operation of the specified works (including any operation of the specified works for testing purposes); or

(iii) in conjunction with the construction of the specified works,

there shall be carried out temporary or permanent protective works specified in the conditions, being works not comprising alterations or additions to railway property falling within paragraph 15 below and which are reasonably required for the safe or convenient operation of Railtrack’s railway undertaking;

(b) where such protective works are specified, reasonable conditions that the protective works (so far as not intended to form part of the Executive’s railway) be carried out by Railtrack; and

(c) reasonable conditions as to the timing of the bringing into operation of the specified works so far as related to the carrying out of alterations and additions under paragraph 15 below.

9.  Unless within 56 days after receipt by the Executive of approval of plans subject to any such conditions, the Executive gives notice in writing that the conditions or any of them are not reasonable (in which case the matter shall be referred to arbitration in accordance with paragraph 21 below), any protective works specified in the conditions shall be carried out in accordance with those conditions.

10.  Where a matter is referred to arbitration as mentioned in paragraph 9 above and the arbitrator determines that the approval of the plans of the specified works shall be subject to conditions relating to the carrying out of protective works specified in the conditions, the protective works so specified shall be carried out in accordance with those conditions.

11.  The Executive shall give to Railtrack not more than six months' and not less than 28 days' notice in writing of their intention to commence the construction of any of the specified works and, except in case of emergency (when they shall give such notice as may be reasonably practicable), of their intention to carry out any works for the repair or maintenance of the specified works in so far as such works of repair or maintenance affect or interfere with railway property.

12.—(1) The construction of the specified works shall, when commenced, be carried out—

(a) with all reasonable dispatch in accordance with the plans approved, or deemed to be approved or settled as aforesaid and in accordance with any conditions under paragraphs 8 or 10 above subject to which such approval has been given, whether imposed by Railtrack or by an arbitrator;

(b) under the supervision (if given), and to the reasonable satisfaction, of the engineer;

(c) in such manner as to cause as little damage as may be to railway property; and

(d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe user of any railway of Railtrack or the traffic thereon and the use by passengers of railway property;

and, if any damage to railway property or any such interference or obstruction shall be caused or take place in consequence of the construction of the specified works, the Executive shall, notwithstanding any such approval as aforesaid, make good such damage and shall pay to Railtrack all reasonable expenses to which they may be put and compensation for any loss which they may sustain by reason of any such damage, interference or obstruction.

(2) Nothing in sub-paragraph (1) shall impose any liability on the Executive with respect to any damage, cost, expense or loss which is attributable to the neglect or default of Railtrack or their servants or agents.

13.  The Executive shall at all times afford reasonable facilities to the engineer for access to the specified works during their construction and supply him with all such information as he may reasonably require with regard to the specified works or the method of construction thereof.

14.  Railtrack shall at all times afford reasonable facilities to the Executive and their agents for access to any works carried out by Railtrack under this Schedule during their construction, and shall supply the Executive with such information as they may reasonably require with regard to such works or the method of construction thereof.

15.—(1) If any alterations or additions, whether permanent or temporary, to railway property shall be shown upon approval of plans under paragraph 8 above to be reasonably necessary or become reasonably necessary during the construction of the specified works or during a period of 12 months after the completion thereof for the safe or convenient operation of Railtrack’s railway network in consequence of the construction or operation of the specified works, and Railtrack give to the Executive reasonable notice of their intention specifying the alterations or additions to be carried out, the Executive shall pay to Railtrack the reasonable cost thereof including, in respect of any permanent alterations and additions, a capitalised sum representing the increase in the costs which may be expected to be reasonably incurred by Railtrack in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions, a capitalised sum representing such saving shall be set off against any sum payable by the Executive to Railtrack under this Schedule.

16.  The Executive shall repay to Railtrack all costs, charges and expenses reasonably incurred by Railtrack—

(a) in constructing any part of the specified works on behalf of the Executive as provided by paragraph 7 above or in constructing any protective works pursuant to conditions imposed under paragraph 8 or 10 above including, in respect of any permanent protective works, a capitalised sum representing the costs which may be expected to be reasonably incurred by Railtrack in maintaining and renewing such works;

(b) in respect of the employment of any inspectors, signalmen, watchmen and other persons whom it shall be reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing interference, obstruction, danger or accident arising from the construction, maintenance, repair or failure of the specified works;

(c) in respect of any special traffic working resulting from any speed restrictions which are necessary as a result of the construction, repair or failure of the specified works or from the substitution, suspension or diversion of services which may be necessary for the same reason;

(d) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary as a result of the specified works or the failure thereof;

(e) in respect of the approval by the engineer of plans submitted by the Executive and the supervision by him of the construction of the specified works.

17.  If at any time after the completion of the specified works Railtrack shall give notice to the Executive that the state of repair of the specified works prejudicially affects railway property, the Executive shall take such steps as may be reasonably necessary to avoid the prejudicial effect on railway property.

18.  Before providing any illumination or illuminated traffic sign on or in connection with the specified works in the vicinity of any railway of Railtrack, the Executive shall consult Railtrack and comply, subject to the approval of the Secretary of State, with Railtrack’s reasonable requirements in regard thereto with a view to ensuring that such illumination or illuminated sign will not be confused with any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

19.—(1) The Executive shall be responsible for, and make good to Railtrack, all costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by, Railtrack—

(a) by reason of the construction, maintenance or repair of the specified works or the failure thereof; or

(b) by reason of any act or omission of the Executive, or of any person in their employ, or of their contractors or others whilst engaged upon the construction or repair of the specified works;

and the Executive shall indemnify Railtrack from and against all claims and demands arising out of or in connection with the construction, maintenance or repair of the specified works or any such failure, act or omission as aforesaid, and the fact that any act or thing may have been done by Railtrack on behalf of the Executive under the provisions of this Order, or in accordance with plans approved by the engineer, or in accordance with any requirement of the engineer or under his supervision, shall not (if it was not attributable to the neglect or default of Railtrack or of any person in their employ, or of their contractors or agents) excuse the Executive from any liability under the provisions of this Schedule.

(2) Railtrack shall give to the Executive reasonable notice of any claim or demand mentioned in sub-paragraph (1) and no settlement or compromise thereof shall be made without the prior consent of the Executive.

20.—(1) The sum payable under paragraph 19 above shall include an amount equivalent to the relevant costs.

(2) Subject to the terms of any agreement between Railtrack and a relevant train operator regarding the terms of payment of the relevant costs of that train operator, Railtrack shall promptly pay to each relevant train operator the amount of any compensation which Railtrack receives by virtue of this paragraph which relates to the relevant costs of that train operator.

(3) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each relevant train operator as a consequence of any restriction in the use of Railtrack’s railway network as a result of the construction, maintenance, repair or failure of the specified works or any such failure, act or omission as is mentioned in paragraph 19 above; and

“relevant train operator” means any person who is authorised by a licence under section 8 of the Railways Act 1993 to act as the operator of a train on any part of a railway network in which the specified works are situated.

(4) The obligation under this paragraph to pay Railtrack the relevant costs shall in the event of default be enforceable directly by the relevant train operator concerned.

21.  Any difference arising between the Executive and Railtrack under this Schedule (other than a difference as to its meaning or construction) shall be referred to and settled by arbitration.

(1)

1985 c. 6.