The London Gateway Logistics and Commercial Centre Order 2007

PART 1 preliminary

Citation and commencement

1.  This Order may be cited as the London Gateway Logistics and Commercial Centre Order 2007 and shall come into force on 28th September 2007.

Interpretation

2.—(1) In this Order—

“the 1990 Act” means the Town and Country Planning Act 1990(1);

“the 1991 Act” means the New Roads and Street Works Act 1991(2);

“the 1992 Act” means the Transport and Works Act 1992;

“application date” means the day on which application was made to the Secretary of State for this Order;

“Applications Rules” means the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000;

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

“the deposited plans” means the plans certified by the Secretary of State as the deposited plans for the purposes of this Order;

“the deposited sections” means the sections certified by the Secretary of State as the deposited sections for the purposes of this Order;

“highway” and “highway authority” have the same meaning as in the Highways Act 1980(3);

“the limits of deviation” means the limits of deviation for the scheduled works mentioned in paragraph (1)(a) of article 6 (Power to deviate) and shown on the deposited plans, or, if, in relation to any such work in a street, no such limits are shown, the boundaries of that street on the application date, including those boundaries as from time to time altered or widened under this Order;

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

“the Promoter” means The Peninsular and Oriental Steam Navigation Company together with Shell UK Ltd;

“the scheduled works” means the works specified in Schedule 1 or any part of them;

“street” includes part of a street;

“street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act; and

“the tribunal” means the Lands Tribunal.

(2) Any reference in this Order to a work identified by the number of the work shall be construed as a reference to the work of that number authorised by this Order.

(3) All distances, directions and lengths stated in the description of the scheduled works or in any description of powers or lands shall be construed as if the works “or thereabouts” were inserted after each such distance, direction and length, and distances between points on a scheduled work shall be taken to be measured along that scheduled work.

Application of the New Roads and Street Works Act 1991

3.—(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway shall be treated for the purposes of Part 3 of the 1991 Act (street works) as major transport works if—

(a) they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) of that Act (which defines what highway authority works are major highway works); or

(b) they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64 of the Highways Act 1980 (dual carriageways and roundabouts) or section 184 of that Act (vehicle crossings).

(2) The provisions of the 1991 Act mentioned in paragraph (3) which, together with other provisions of that Act, apply in relation to the execution of street works and any regulations made or code of practice issued or approved under those provisions shall apply (with the necessary modifications) in relation to any stopping up, alteration or diversion of a street by the Promoter under the powers conferred by this Order whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

(3) The provisions of the 1991 Act referred to in paragraph (2) 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 regulations);

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

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

(4) Sections 54 and 55 of the 1991 Act as applied by paragraph (2) shall have effect as if references in section 57 of that Act to emergency works were a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

Incorporation of the Railways Clauses Consolidation Act 1845

4.—(1) The following provisions of the Railways Clauses Consolidation Act 1845(4) shall be incorporated in this Order—

• section 46 (crossings of roads-level crossings);

• section 47 (provision in cases where roads are crossed on a level)(5);

• 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 the 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)(6);

• 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 Mines (Working Facilities and Support) Act 1923(7);

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

• section 145 (recovery of penalties); and

• section 154 (transient offenders).

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

“the company” means the Promoter;

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

“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 other authorised works;

“the special Act” means this Order.

(3) 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 highway authority may reasonably impose, the railway may be carried across a highway on the level.”.

PART 2 works provisions

Principal powers

Power to construct and maintain works

5.—(1) The Promoter may construct and maintain the scheduled works.

(2) Subect to article 6 (power to deviate), the scheduled works may only be constructed in the lines or situations shown on the deposited plans and in accordance with the levels shown on the deposited sections.

(3) Subject to paragraph (5), the Promoter may carry out and maintain such of the following works as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the scheduled works, namely—

(a) works for the strengthening, alteration or demolition of any building or structure;

(b) works to construct, improve or alter the position of any apparatus, including mains, sewers, drains and cables;

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

(d) landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised works;

(e) facilities and works for the benefit or protection of land or premises affected by the authorised works;

(f) works to make, provide and maintain all such apparatus, bridges, ramps, means of access, shafts and stagings as the Promoter thinks fit;

(g) works to construct, provide and maintain all such embankments, aprons, abutments, retaining walls, wing walls and culverts; and

(h) construction of earthworks, fencing, drainage, utilities, points, signalling and culverts.

(4) Subject to paragraph (5), the Promoter may carry out and maintain such other works (of whatever nature) as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the scheduled works, other than works that would interfere with a navigable watercourse.

(5) Paragraphs (3) and (4) shall only authorise the carrying out or maintenance of works within the limits of deviation shown on the deposited plans for the scheduled works.

Power to deviate

6.—(1) In constructing or maintaining any of the scheduled works, the Promoter may—

(a) deviate laterally from the lines or situations shown on the deposited plans within the limits of deviation relating to that work shown on those plans; and

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

(i) to any extent not exceeding 3 metres upwards; and

(ii) to any extent downwards.

(2) In constructing any work shown on the deposited plans as situated in a street and for which no limits of deviation are shown on those plans the Promoter may deviate laterally within the boundaries of that street.

Access to Works

Access to works

7.  The Promoter may, for the purposes of the construction or operation of the scheduled works, form and lay out such means of access connecting to a public highway, within the limits of deviation, as may be approved by the highway authority, but such approval shall not be unreasonably withheld.

Supplemental

Discharge of water

8.—(1) The Promoter may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction, operation or maintenance of the authorised works and for that purpose may law down, take up and alter pipes and may, on any land within the limits of deviation, make openings into, and connections with, the watercourse, public sewer or drain.

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

(5) The Promoter shall take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance or oil or matter in suspension.

(6) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by section 85(1), (2) or (3) of the Water Resources Act 1991(8).

(7) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board or a local authority;

(b) “watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passage 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.

Obstruction of construction of authorised works

9.  Any person who, without reasonable excuse, obstructs another person from constructing any of the authorised works under the powers conferred by this Order shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Power to keep apparatus in streets

10.—(1) The Promoter may, for the purposes of or in connection with the construction, maintenance and use of the authorised works, place and maintain in any street within the limits of deviation any work, equipment or apparatus including, without prejudice to the generality of the foregoing, foundations, platforms, road islands, substations, electric lines and any electrical or other apparatus.

(2) In this article—

(a) “apparatus” has the same meaning as in Part 3 of the 1991 Act; and

(b) the reference to any work, equipment, apparatus or other thing in a street includes a reference to any work, equipment, apparatus or other thing under, over, along or upon the street.

Power to execute street works

11.  The Promoter may, for the purposes of exercising the powers conferred by article 10 (power to keep apparatus in streets) and the other provisions of this Order, enter upon any street within the limits of deviation and may execute any works required for, or incidental to, the exercise of those powers including, without prejudice to the generality of the foregoing, breaking up or opening the street, or any sewer, drain or tunnel under it, or tunnelling or boring under the street.

Temporary stopping up of streets

12.—(1) The Promoter may, during and for the purposes of the execution of the authorised works, 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), prevent all persons from passing along the street.

(2) The Promoter shall provide reasonable access for pedestrians going to or from premises abutting a street affected by the exercise of the powers conferred by this article if there would otherwise by no such access.

(3) Any person who suffers loss by the suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part 1 of the Land Compensation Act 1961(9).

Agreement with street authorities

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

(a) the construction of any new street (including any structure carrying the street over or under an authorised work) under the powers conferred by this Order;

(b) the maintenance of the structure of any bridge carrying an authorised work over a street;

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

(d) the execution in the street of any of the works referred to in article 11 (power to execute street works).

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

(a) make provision for the street authority to carry out 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.

PART 3 operation of authorised works

Power to operate and use authorised works

14.  The Promoter may operate and use the railway and other authorised works as a system, or part of a system, of transport for the carriage of goods.

Maintenance of approved works, etc.

15.—(1) Where, pursuant to regulations made under section 41 of the 1992 Act (approval of works, plant and equipment), approval has been obtained from the Office of Rail Regulation with respect to any works, plant or equipment (including vehicles) forming part of the authorised works, 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 authorised works.

(2) If without reasonable cause the provisions of paragraph (1) are contravened, the Promoter 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 Office of Rail Regulation or the Director of Public Prosecutions.

Trespass on authorised works

16.  Any person who—

(a) trespasses on any authorised work; or

(b) trespasses upon any land of the Promoter in dangerous proximity to the authorised works or to any electrical or other apparatus used for or in connection with the operation of the authorised works,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Power of disposal, agreements for operation, etc.

17.—(1) The Promoter may sell, lease, charge or otherwise dispose of, on such terms and conditions as it thinks fit, the whole or any part of the authorised works and any land held in connection with the authorised works or the right to operate the works under this Order.

(2) Without prejudice to the generality of paragraph (1), the Promoter may enter into and carry into effect agreements with respect to any of the following matters, namely, the construction, maintenance, use and operation of the authorised works, or any part of them, by any other person, and other matrters incidental or subsidiary thereto or consequential thereon, and the defraying of, or the making of contributions towards, the cost of the matters aforesaid by the Promoter or any other person.

(3) Any agreement under paragraph (2) may provide (amongst other things) for the exercise of the powers of the Promoter in respect of the authorised works or any part of those works, and for the transfer to any person of the authorised works or any part of those works together with the rights and obligations of the Promoter in relation thereto.

(4) The exercise of the powers of any enactment by any person in pursuance of any sale, lease, charge or disposal under paragraph (1), or any agreement under paragraph (2), shall be subject to the same restrictions, liabilities and obligtaions as would apply under this Order if those powers were exercised by the Promoter.

Agreements with Network Rail

18.—(1) Subject to Schedule 2 (for the protection of Network Rail), the Promoter and Network Rail may enter into and carry into effect agreements with respect to the construction, maintenance, use and operation of—

(a) any designated works, or any part of those works; and

(b) any works required for the purposes of the designated works or in connection with those works,

by Network Rail or by the Promoter, or by the Promoter and Network Rail jointly.

(2) (a) Any agreement made under this article may contain such incidental, consequential or supplementary provisions as may be so agreed, including (but without prejudice to the generality of the foregoing) provisions—

(i) with respect to the defraying of, or the making of contributions towards, the cost of works of alteration or adaptation or the costs of construction, maintenance, use and operation as are referred to in paragraph (1) by the Promoter or by Network Rail or by the Promoter and Network Rail jointly; and

(ii) for the exercise by Network Rail, or by the Promoter, or by Network Rail and the Promoter jointly, of all or any of the powers and rights of Network Rail and the Promoter (as the case may be) in respect of either of the works referred to in paragraph (1) and any works required for the purposes of those works or in connection with those works.

(b) The exercise by the Promoter or Network Rail or by the Promoter and Network Rail jointly, of any powers and rights under any enactment or contract pursuant to any such agreement as is authorised by paragraph (1) shall be subject to all statutory and contractual provisions relating thereto as would apply if such powers and rights were exercised by the Promoter or Network Rail (as the case may be) alone, and accordingly such provisions shall, with any necessary modifications, apply to the exercise of such powers and rights by the Promoter or Network Rail, or by the Promoter and Network Rail jointly, as the case may be.

(3) The Promoter and Network Rail may enter into, and carry into effect, agreements for the transfer to and vesting in Network Rail or the Promoter, or the Promoter and Network Rail jointly, of—

(a) the designated works or any part of any of those works; or

(b) any works, lands, or other property required for the purposes of the designated works or in connection with those works,

together with any rights and obligations (whether or not statutory) of Network Rail or the Promoter relating thereto.

(4) In this article—

“designated works” means any part of the authorised works to be constructed on railway property;

“Network Rail” means Network Rail Infrastructure Limited; and

“railway property” means any railway belonging to Network Rail and any works, apparatus and equipment belonging to Network Rail connected with the railway and includes any land held or used by Network Rail for the purposes of such railway or works, apparatus or equipment.

PART 4 protective provisions

Part 1 of the Railways Act 1993

19.  Nothing in this Order or in any enactment incorporated with or applied by this Order shall prejudice or affect the operation of Part 1 of the Railways Act 1993(10).

For the protection of Network Rail

20.  The provisions of Schedule 2 (for the protection of Network Rail) shall have effect.

For the protection of the Environment Agency

21.  The provisions of Schedule 3 (for the protection of the Environment Agency) shall have effect.

PART 5 miscellaneous and general

Certification of plans, etc.

22.  The Promoter shall, as soon as practicable after the making of this Order, submit copies of the deposited plans and the deposited sections to the Secretary of State for certification that they are true copies of, respectively, the deposited plans and the deposited sections referred to in this Order, and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Service of notices

23.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served by post.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 of the Interpretation Act 1978(11) as it applies for the purposes of this article, the proper address of any person in relation to the service on him of a notice or document under paragraph (1) is, if he has given an address for service, that address, and otherwise—

(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

24.  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

25.  Unless otherwise agreed between the parties, 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.

Defence to proceedings in respect of statutory nuisance

26.—(1) Where proceedings are brought under section 82(1) of the Environment Protection Act 1990(12) (summary proceedings by person aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows—

(a) that the nuisance relates to premises used by the Promoter for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works; and

(b) that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60 of the Control of Pollution Act 1974(13) or a consent given under section 61 or 65 of that Act.

(2) The following provisions of the Control of Pollution Act 1974, namely—

(a) section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990)(14); and

(b) section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded),

shall not apply where the consent relates to the use of premises by the Promoter for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.

Planning permission and supplementary matters

27.—(1) In relation to the application of paragraph 3(c) of the Second Schedule of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Tree Preservation Order) Regulations 1969(15) (including that paragraph as applied by regulation 3(ii) of the Town and Country Planning (Tree Preservation Order) (Amendment) and (Trees in Conservation Areas) (Exempted Cases) Regulations 1975(16), or as incorporated in any tree preservation order), any direction under section 90(2A) of the 1990 Act deeming planning permission to be granted in relation to works authorised by this Order shall be treated as deeming the permission to have been granted on application made under Part 3 of that Act for the purposes of that Part.

(2) In relation to the application of article 5(1)(d) of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Trees) Regulations 1999(17) as incorporated in any tree preservation order or as having effect by virtue of regulation 10(1)(a) of those Regulations, any direction under section 90(2A) of the 1990 Act deeming planning permission to be granted in relation to works authorised by this Order shall not be treated as an outline planning permission.

(3) Planning permission which is deemed by a direction under section 90(2A) of the 1990 Act to be granted in relation to works authorised by this Order shall be treated as specific planning permission for the purpooses of section 264(3)(a) of that Act (cases in which land is to be treated as operational land for the purposes of that Act).

Savings for regulated rights, etc.

28.  Nothing in this Order shall affect any estate, right or interest granted by Network Rail in respect of a railway facility which is subject to an access contract within the meaning of Part 1 of the Railways Act 1993.

Signed by authority of the Secretary of State

Ellis Harvey

Head of the Transport and Works Act Orders Unit

Department for Transport

7th September 2007