The River Thames (Hungerford Footbridges) Order 1999

Article 28(1)

SCHEDULE 9 PROTECTION OF THE ENVIRONMENT AGENCY

1.  For the protection of the Environment Agency (in this Schedule referred to as “the Agency”) the provisions of this Schedule shall, unless otherwise agreed in writing between the undertaker and the Agency, have effect.

2.  In this Schedule—

• “construction” shall include execution, placing, altering, replacing, relaying and removal; and “construct” and “constructed” shall be construed accordingly;

• “damage” shall include scouring, erosion and environmental damage and “damaged” shall be construed accordingly;

• “drainage work” means any watercourse and includes any land used for providing flood storage capacity for any watercourse and any bank, wall, embankment or other structure or appliance constructed or used for land drainage, flood defence or tidal monitoring;

• “the fishery” means fish in, or migrating to or from, the River Thames and the spawn, habitat or food of such fish;

• “plans” shall include sections, drawings, specifications and method statements;

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to

  (a)

  affect any drainage work or the volumetric flow of water in or flowing to or from any drainage work,

  (b)

  affect the flow, purity or quality of water in any watercourse or other surface waters or ground water,

  (c)

  cause obstruction to the free passage of fish or damage to any fishery, or

  (d)

  affect the conservation, distribution or use of water resources; and

• “watercourse” has the meaning given in section 72 of the Land Drainage Act 1991(1).

3.—(1) Before beginning to construct the specified works and again at the written request of the Agency following their completion, the undertaker shall at its own expense and to the reasonable satisfaction of the Agency, conduct a survey of the condition of the river walls on each side of the River Thames so far as situated within 100 metres of the centreline of the Charing Cross Railway Bridge and submit a report upon their condition to the Agency.

(2) If any defects are identified in the initial survey conducted pursuant to sub-paragraph (1) above, being defects which may be affected by the construction of the specified works, the undertaker shall monitor the defects not less than once every 4 weeks, where tides permit, during the construction of the specified works in accordance with such reasonable requirements as the Agency may specify or, if the Agency reasonably requires having regard to the results of any such monitoring, at such lesser intervals as the Agency may specify.

(3) Before beginning to construct the specified works and thereafter at 2 weekly intervals until their completion, or at such greater intervals as the Agency may agree for the period following the completion of foundation works comprised in the specified works, the undertaker shall at its own expense and to the reasonable satisfaction of the Agency survey the levels of the foreshore within 200 metres of the specified works and submit a report upon those levels to the Agency.

(4) The survey required under sub-paragraph (3) above shall be undertaken at points corresponding to the intersection of grid lines spaced at 10 metre intervals parallel to the river walls and at 50 metre intervals at right angles to the River Thames.

(5) If during the construction of the specified works, any defects in the river walls deteriorate or scouring or siltation of the foreshore exceeds an average of 150 millimetres from the initial measurements taken on any two adjacent grid lines 50 metres apart, the undertaker shall immediately cease the construction of the authorised works and not re-commence the construction otherwise than in accordance with such reasonable requirements as may be specified by the Agency which may include changes to working methods and the completion of mitigation works.

4.—(1) Before beginning to construct any specified work, the undertaker shall submit to the Agency plans of the work and such further particulars available to it as the Agency may reasonably require.

(2) Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the Agency, or settled in accordance with paragraph 13 below and, where applicable, in accordance with any requirements specified under paragraph 3(5) above.

(3) Any approval of the Agency required under this paragraph—

(a) shall not be unreasonably withheld;

(b) shall be deemed to have been given if it is neither given nor refused within 2 months of the submission of plans for approval in writing and, in the case of a refusal, accompanied by a statement of the grounds of refusal.

(c) may be given subject to such reasonable requirements as the Agency may impose for the protection of any drainage work or the fishery or water resources, for the prevention of flooding or water pollution and in the discharge of its environmental and recreational duties.

5.  Without prejudice to the generality of paragraph 4 above, the requirements which the Agency may impose under that paragraph include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary to safeguard any drainage work against damage or to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased by reason of any specified work.

6.—(1) Any specified work, and all protective works required by the Agency under paragraph 4 above, shall be constructed to the reasonable satisfaction of the Agency and the Agency shall be entitled by its officer to watch and inspect the construction of such works.

(2) The undertaker shall give to the Agency not less than 14 days' notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

(3) If any part of the works comprising a structure in, over or under a watercourse is constructed otherwise than in accordance with the requirements of this Schedule, the Agency may by notice in writing require the undertaker, at the undertaker’s own expense, to comply with the requirements of this Schedule or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

(4) Subject to sub-paragraph (5) below, if within a reasonable period, being not less than 28 days from the date when notice under sub-paragraph (3) above is served upon the undertaker, it has failed to begin taking steps to comply with the requirements of the notice and thereafter to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from the undertaker.

(5) In the event of any dispute as to whether sub-paragraph (3) above is applicable to any work in respect of which a notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not except in an emergency exercise the powers conferred by sub-paragraph (4) above until the dispute has been determined.

7.—(1) Subject to the provisions of this Schedule and except to the extent that the Agency or another person is liable to maintain any such work and is not precluded by the exercise of the powers of this Order from so doing, the undertaker shall from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation or on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is to be constructed under the powers of this Order or is already in existence.

(2) If any such work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require the undertaker to repair and restore the work, or any part thereof, or (if the undertaker so elects and the Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site (including any sea defences) to its former condition, to such extent and within such limits as the Agency reasonably requires.

(3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any work is served under sub-paragraph (2) above on the undertaker, the undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not thereafter made reasonably expeditious progress towards their implementation, the Agency may do anything necessary to ensure such compliance and may recover any expenditure reasonably incurred by it in so doing from the undertaker.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2) above, the Agency shall not, except in a case of an emergency, exercise the powers of sub-paragraph (3) above until the dispute has been determined.

8.  If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that work is otherwise damaged, such impairment or damage shall be made good by the undertaker to the reasonable satisfaction of the Agency and, if the undertaker fails to do so, the Agency may make good the same and recover from the undertaker the expense reasonably incurred by it in so doing.

9.—(1) Without prejudice to the other provisions of this Schedule, the undertaker shall take all such measures as may be reasonably practicable to prevent any interruption in the passage of fish during the construction of any specified work.

(2) If by reason of—

(a) the construction of any specified work, or

(b) the failure of any such work,

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the undertaker requiring it to take such steps as may be reasonably practicable to make good the damage or, as the case may be, to protect the fishery against such damage.

(3) If, within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to the fishery, the undertaker fails to take such steps as are described in sub-paragraph (2) above, the Agency may take those steps and may recover from the undertaker the expense reasonably incurred by it in doing so.

(4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the undertaker the reasonable cost of so doing provided that a notice specifying those steps is served on the undertaker as soon as is reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

10.  The undertaker shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may incur—

(a) in the examination or approval of plans and reports under this Schedule,

(b) in the inspection of the construction of the specified works or any protective works required by the Agency under this Schedule.

11.—(1) Without prejudice to the other provisions of this Schedule, the undertaker shall indemnify the Agency from all claims, demands, proceedings, costs, damages or expenses or loss which may be made or taken against, or recovered from or incurred by the Agency by reason of—

(a) any damage to any drainage work so as to impair its efficiency for the purposes of flood defence,

(b) any damage to the fishery,

(c) any raising or lowering of the water table in land adjoining the works or any sewers, drains and watercourses,

(d) any flooding or increased flooding of any such lands, or

(e) inadequate water quality in any watercourse or other surface waters or in groundwater,

which is caused by the construction of any of the works or any act or omission of the undertaker, its contractors, agents, or employees whilst engaged upon any such work.

(2) The Agency shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of the undertaker which agreement shall not be unreasonably withheld.

12.  The fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award by an arbitrator, shall not relieve the undertaker from any liability under the provisions of this Schedule.

13.—(1) Unless the parties agree to arbitration under article 36 above, any difference arising between the undertaker and the Agency under paragraph 4 above shall be settled by the Minister of Agriculture, Fisheries and Food and the Secretary of State acting jointly on a reference to them by the undertaker or the Agency after notice by one to the other.

(2) Where a reference is made under sub-paragraph (1) above, the undertaker and the Agency shall pay such of the reasonable costs of the Minister of Agriculture, Fisheries and Food and the Secretary of State incurred in the determination of that reference as the Minister of Agriculture Fisheries and Food and the Secretary of State jointly shall direct.

(3) Subject to sub-paragraph (1) above, any difference arising between the undertaker and the Agency under this Schedule (other than a difference as to its meaning or construction) shall be resolved by an arbitrator under article 36 above.

(1)

1991 c. 59.