The Greater Manchester (Light Rapid Transit System) (Ashton-under-Lyne Extension) Order 1998

For protection of the British Waterways Board

43.—(1) For the protection of the waterways board the following provisions shall, unless otherwise agreed in writing between the undertaker and the waterways board, have effect.

(2) In this article—

“the canal” means the Ashton Canal in so far as it is owned or managed by the waterways board, and any works connected therewith for the maintenance of which the waterways board are responsible, and includes any lands held or used by the waterways board for the purposes of the canal;

“construction” includes execution, placing, altering, replacing and relaying and includes removal;

“the engineer” means an engineer to be appointed by the waterways board;

“plans” includes sections, drawings, specifications and method statements;

“the specified works” means so much of any of the authorised works as is situated over or upon or abuts on or in any way affects the canal and includes the exercise of any of the powers of articles 5, 8, 9, 10, 12, 19 and 23 in relation to the canal;

“the waterways board” means the British Waterways Board.

(3) Notwithstanding anything in this Order or shown on the land plans, the undertaker shall not under the powers of this Order acquire compulsorily or occupy any land or other property of the waterways board or acquire compulsorily any easement or other right over such land, but it may subject to the consent of the waterways board (which consent shall not unreasonably be withheld) in accordance with the provisions of article 29 above acquire such easements and rights as it may reasonably require for the purposes of the authorised works in any such land or property delineated on the land plans.

(4) The undertaker shall not use any land or property of the waterways board (including the towing paths comprised in the canal) for the passage of vehicles, plant or machinery employed in the construction of the specified works other than—

(a) with the consent in writing of the engineer, whose consent shall not be unreasonably withheld, and

(b) subject to compliance with such reasonable requirements as the engineer may from time to time specify—

(i) for the prevention of damage to such land and property and of danger to persons thereon, and

(ii) in order to avoid or reduce any inconvenience to the waterways board, their officers and agents and all other persons lawfully on such land or property.

(5) If as a result of the construction of the specified works any part of the towing path comprised in the canal or any public right of way giving access thereto (“the closed section”) is closed to persons on foot or on cycles the undertaker shall to the reasonable satisfaction of the waterways board provide in substitution a sufficient and convenient way between the points of commencement and termination of the closed section and maintain that way throughout the period of closure.

(6) (a) The undertaker shall, before commencing the construction of the specified works, supply to the waterways board proper and sufficient plans thereof for the approval of the engineer and such further particulars available to it as the waterways board may within 28 days of the submission of the plans reasonably require, and shall not commence the specified works until plans thereof have been approved in writing by the engineer or settled by arbitration.

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

(c) Upon signifying his approval of the plans the engineer may specify—

(i) any protective works, whether temporary or permanent, which in his opinion should be carried out before the commencement of the specified works, and

(ii) such other requirements as may be necessary,

to ensure the safety or stability of, or to prevent the obstruction of, the canal.

(d) Such protective works as may be specified under sub-paragraph (c) above shall be constructed by the undertaker with all reasonable dispatch.

(7) The undertaker shall pay to the waterways board a capitalised sum representing the increased or additional cost of maintaining and, when necessary, renewing any permanent protective works provided under paragraph (6) above, but if the cost of maintaining the canal, or of works of renewal on the canal, is reduced in consequence of any such protective works, a capitalised sum representing such saving shall be set off against any sum payable by the undertaker to the waterways board under this paragraph.

(8) The undertaker shall give to the engineer 28 days' notice of its intention to commence the construction or repair of any of the specified works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable.

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

(10) When construction of any specified works is commenced the works shall be carried out—

(a) in accordance with the plans approved or deemed to be approved or settled as provided in paragraph (6) above, and any requirements made under sub-paragraph (6)(c) above,

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

(c) so as not to interfere with or obstruct the use of the towing paths of the canal so far as is reasonably practicable, and

(d) so as not to interfere with or obstruct the passage of vessels on the canal.

(11) Following the completion of the construction of the specified works the undertaker shall restore the canal to a condition no less satisfactory than its condition immediately prior to the commencement of those works.

(12) The undertaker shall not in the course of constructing or repairing the specified works do or permit anything which may result in the pollution of the canal or the deposit of materials therein and shall take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this sub-paragraph.

(13) Nothing in article 20 above shall authorise the undertaker—

(a) to discharge any water directly or indirectly into the canal except with the consent in writing of the waterways board, or

(b) to carry out any works to, or make any opening in, or otherwise interfere with, the canal (including the banks and bed thereof).

(14) The undertaker shall pay to the waterways board all costs, charges and expenses reasonably incurred by them in respect of—

(a) the approval by the engineer of plans supplied by the undertaker under paragraph (6) above, and

(b) the supervision by him of the construction of the specified works.

(15) Subject to paragraph (17)(b) below, if any damage to the canal or other land or property of the waterways board, any stoppage of the canal or any interference with the passage of vessels using the canal shall be caused by the carrying out of works for the construction of the specified works, the undertaker shall make good such damage and pay to the waterways board all reasonable expenses to which they may be put and compensation for any loss which they may sustain by reason of any such damage, stoppage or interference.

(16) Nothing in this Order shall authorise the undertaker to make or maintain any permanent works in or over the canal so as to reduce the width thereof if such reduction in width would impede or prevent the passage of any vessel of a kind (as to its dimensions) for which the waterways board are required by section 105(1)(b) and (2) of the Transport Act 1968(1) to maintain the canal.

(17) (a) The undertaker shall be responsible for and make good to the waterways board all costs, charges, damages and expenses not otherwise provided for in this article which may be occasioned to, or reasonably incurred by, the waterways board—

(i) by reason of the construction or repair of the specified works or the failure thereof, or

(ii) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction or repair of the specified works;

and the undertaker shall indemnify the waterways board from and against all claims and demands arising out of, or in connection with, the construction or repair of the specified works or any such failure, act or omission as aforesaid.

(b) Nothing in this paragraph shall impose any liability on the undertaker with respect to any damage, expense or loss which is attributable to the act, neglect or default of the waterways board or their servants, agents or contractors but the fact that any act or thing has been done by the waterways board on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision shall not (if it was done without neglect or default on the part of the waterways board or of any person in their employ or of their contractors or agents) excuse the undertaker from any liability under this paragraph.

(c) The waterways board shall give to the undertaker reasonable notice of any claim or demand under this paragraph and no settlement or compromise thereof shall be made without the prior consent of the undertaker.

(18) Paragraph 3 of Schedule 10 below shall not apply in relation to a street under the control or management of, or maintainable by, the waterways board forming part of the canal.

(1)

1968 c. 73.