Article 46
SCHEDULE 2FOR PROTECTION OF ENVIRONMENT AGENCY
1.—(1) The following provisions shall apply for the protection of the Environment Agency unless otherwise agreed in writing between the Council and the Environment Agency.
(2) In this Schedule—
“damage” shall include scouring, erosion and environmental damage and “damaged” shall be construed accordingly;
“construction” shall include execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” shall be construed accordingly;
“drainage work” shall mean any watercourse and includes any land which is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence (including defence against sea water or tidal monitoring);
“the fishery” shall mean any waters containing fish and fish in, or migrating to or from such waters and the spawn, habitat or food of such fish;
“plans” shall include sections, drawings, specifications and method statements;
“specified work” shall mean any permanent or temproary work or operation authorised by this Order (including, for the avoidance of doubt, any dredging and any exploratory geotechnical investigation which may be undertaken); and
“watercourse” shall include all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows (whether or not the flow is intermittent) except a public sewer.
2.—(1) Before beginning to construct any specified work, the Council shall submit to the Environment Agency plans of the work and such further particulars available to it as the Environment Agency may within 28 days of the submission of the plans 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 Environment Agency, or determined under paragraph 13 below.
(3) Any approval of the Environment 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 in writing within two months of the submission of the plans for approval and in the case of a refusal, accompanied by a statement of the grounds of refusal; and
(c)may be given subject to such reasonable requirements as the Environment Agency may make for the protection of any drainage work or fishery or for the protection of water resources, or for the prevention of flooding or pollution and in the discharge of its environmental and recreational duties.
3. Without prejudice to the generality of paragraph 2 above, the requirements which the Environment Agency may make under that paragraph include conditions requiring the Council at its own expense—
(a)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—
(i)to safeguard any drainage work against damage, or
(ii)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;
(b)to provide, maintain and operate a system of monitoring water quality in the harbour;
(c)to provide, maintain and operate arrangements for dealing with any pollution incidents which may occur.
4.—(1) Any specified work, and all protective works required by the Environment Agency under paragraph 3 above, shall be constructed—
(a)with all reasonable despatch in accordance with the plans approved or deemed to have been approved or settled under this article; and
(b)to the reasonable satisfaction of the Environment Agency
and the Environment Agency shall be entitled by its officer to watch and inspect the construction of such works.
(2) The Council shall give to the Environment 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 drainage work is constructed otherwise than in accordance with the requirements of this Schedule, the Environment Agency may by notice in writing require the Council, at the Council’s own expense, to comply with the requirements of this Schedule or (if the Council so elects and the Environment 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 Environment 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 a notice under sub-paragraph (3) above is served upon the Council, 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 Environment Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from the Council.
(5) In the event of any dispute as to whether sub-paragraph (3) above is properly 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 Environment Agency shall not except in emergency exercise the powers conferred by sub-paragraph (4) above until the dispute has been finally determined.
5.—(1) The Council 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 Council for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers of the Order or is already in existence.
(2) If any such work which the Council is liable to maintain is not maintained to the reasonable satisfaction of the Environment Agency, the Enviromment Agency may by notice in writing require the Council to repair and restore the work, or any part thereof, or (if the Council so elects and the Environment Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site to its former condition, to such extent and within such limits as the Environment 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 Council, the Council 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 Environment Agency may do anything necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from that person.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2) above, the Environment Agency shall not, except in a case of an emergency, exercise the powers of sub-paragraph (3) above until the dispute has been finally determined.
6. 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 Council to the reasonable satisfaction of the Environment Agency and if the Council fails to do so, the Environment Agency may make good the same and recover from the Council the expense reasonably incurred by it in so doing.
7.—(1) The Council shall ensure from the commencement of the authorised works and following their completion that the water quality in the harbour is maintained at all times to the required standard.
(2) For the purposes of this paragraph, the required standard is—
(a)a dissolved oxygen content of not less than 5 milligrams per litre dissolved oxygen, at least 95% of the time and not less than 3 milligrams per litre dissolved oxygen at all times;
(b)a maximum chlorophyll A concentration of 15 micrograms per litre; and
(c)a maximum total algae count of 750 cells per millilitre, at least 95% of the time,
or such alternative standard as the Environment Agency may propose and the Council agree in writing, such agreement not to be unreasonably withheld.
(3) If the Council fails to maintain the water quality in the harbour to the required standard, it shall notify the Environment Agency immediately and the Environment Agency may—
(a)in a case of urgency, itself take such steps as in its opinion are reasonably required to remedy the deficiency and may recover the reasonable cost of doing so from the Council;
(b)in any other case, issue a written direction to the Council requiring the Council at the Council’s expense to take such steps, to be specified in the direction, as in the Environment Agency’s opinion are reasonably required to remedy the deficiency.
(4) If the Council does not comply with a direction issued by the Environment Agency under sub-paragraph (3) above, the Environment Agency may itself carry out the steps specified in the direction and recover the reasonable costs of doing so from the Council.
8. The Council shall at its own expense provide, maintain and operate the system for monitoring the water quality in the harbour required by the Environment Agency under paragraph 3 above and shall—
(a)send to the Environment Agency as soon as reasonably practicable after the end of each month details of the readings taken from apparatus provided; and
(b)allow the Environment Agency access at all times to such apparatus and to records of readings taken from it.
9. The Council shall indemnify the Environment Agency in respect of all costs, charges and expenses which the Environment Agency may reasonably incur or have to pay or which it may sustain—
(a)in the examination or approval of plans under this Schedule;
(b)in the inspection of the construction of the specified works or any protective works required by the Environment Agency under this Schedule;
(c)in the examination of monitoring records provided under this Schedule.
10.—(1) Without prejudice to the other provisions of this Schedule, the Council shall indemnify the Environment 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 Environment 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 a fishery,
(c)any raising or lowering of the water table in land adjoining the works authorised by this Order 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 any groundwater,
which is caused by, or results from, the construction of any of the works or any act or omission of the Council, its contractors, agents or employees whilst engaged upon the work.
(2) The Environment Agency shall give to the Council reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of the Council which agreement shall not be unreasonably withheld.
11. 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 Environment Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve the Council from any liability under the provisions of this Schedule.
12. For the purposes of Chapter II of Part II of the Water Resources Act 1991 (1) (abstraction and impounding of water) and section 109 of that Act (as to structures in, over or under watercourses) as applying to the construction of any specified work, any consent or approval given or deemed to be given by the Environment Agency under this Schedule with respect to such construction shall be deemed also to constitute an impounding licence under that Chapter or, as the case may be, approval under that section, and the Council shall not be obliged to serve any notice which would otherwise be required by section 30 of the said Act of 1991 (which relates to the construction of boreholes and similar works in respect of which a licence is not required).
13. Any dispute arising between the Council and the Environment Agency under this Schedule (other than a difference as to its meaning or construction) shall be referred to and settled by a single arbitrator to be agreed between the parties or, in default of agreement, to be approved on the application of either party, after notice in writing to the other, by the President of the Institute of Civil Engineers.