The London Underground (East London Line Extension) (No. 2) Order 2001

Article 36

SCHEDULE 11 PROTECTION FOR RAILTRACK

1.—(1) For the protection of Railtrack the following provisions shall, unless otherwise agreed in writing between the Company and Railtrack PLC, have effect.

(2) In this Schedule—

• “construction”, except in paragraph 19 below, includes reconstruction and for the purposes of paragraphs 14 and 17 below includes maintenance and repair of the specified works;

• “designated lands” means the land delineated on the deposited plans and numbered 101, 105, 106 and 108 in the London borough of Lewisham;

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

• “London Bridge to Brockley railway” has the same meaning as in Schedule 1 to this Order;

• “plans” includes sections, drawings, particulars and schedules of construction;

• “Railtrack” means Railtrack PLC and any associated company of Railtrack PLC which holds railway property for railway purposes and for this purpose “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 PLC, and any works, apparatus and equipment of Railtrack connected therewith and includes any lands held or used by Railtrack for the purposes of such railway or works apparatus and equipment;

• “relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Railtrack’s railway network as a result of the construction of the specified works;

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

• “train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993(2).

2.  The exercise by the Company against Railtrack of the powers of article 16 of this Order or the powers of section 11(3) of the 1965 Act shall be confined to lands in relation to which the Company’s powers of compulsory acquisition are not subject to the consent of Railtrack PLC under paragraph 4 below.

3.—(1) The Company shall not in the exercise of the powers conferred by article 8 of this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Railtrack PLC

(2) The consent of Railtrack PLC under sub-paragraph (1) above shall not be unreasonably withheld but may be given subject to reasonable conditions.

4.—(1) Subject to sub-paragraph (3) below, the Company shall not pursuant to the powers of this Order, without the consent of Railtrack PLC which shall not be unreasonably withheld, acquire or enter upon, take or use, whether temporarily or permanently or acquire any new rights over any railway property within the limits of deviation.

(2) Sub-paragraph (1) above shall not prevent the Company from acquiring the interest of any person other than Railtrack in the said land.

(3) Nothing in sub-paragraph (1) above shall prevent the Company pursuant to article 18 of this Order from acquiring compulsorily all or any part of the designated lands provided that such acquisition shall be subject to the exercise by Railtrack of such rights as are reasonably required in connection with the safe operation and maintenance of the London Bridge to Brockley railway which do not interfere with the construction and maintenance of the specified works.

5.  The Company shall, before commencing the construction of the specified works, furnish to Railtrack PLC such proper and sufficient plans of the specified works (including particulars as to the working methods and the regulation of traffic in the vicinity of the specified works) as may reasonably be required by the engineer and shall not commence the specified works until those plans have been approved in writing by the engineer or settled by arbitration as provided in paragraph 6 below.

6.  The engineer’s approval under paragraph 5 above shall not be unreasonably withheld and any question of whether it has been unreasonably withheld shall be settled by arbitration, and in any event if within 56 days after such plans have been furnished to Railtrack PLC the engineer has not notifed his disapproval of the plans and the grounds of his disapproval, he shall be deemed to have approved the plans as submitted.

7.  If within 56 days after such plans have been furnished to Railtrack PLC, Railtrack PLC gives notice to the Company that Railtrack PLC desires to construct any part of the specified works, which in the opinion of the engineer will or may affect the stability of railway property and the safe operation of the railways of Railtrack PLC or the services of train operators using the same, then, if the Company desires such part of the specified works to be constructed, Railtrack PLC shall construct it with all reasonable dispatch on behalf of, and to the reasonable satisfaction of, the Company in accordance with the plans approved or deemed to be approved or settled provided in paragraph 6 above.

8.  Upon signifying his approval or disapproval of the plans the engineer may specify any protective works, whether temporary or permanent, which in his opinion should be carried out before the commencement of the construction of the specified works to ensure the stability of railway property, the continuation of the safe and effective operation of the railways of Railtrack PLC or the services of train operators using the same (including any relocation of works, apparatus and equipment necessitated by the specified works) and the comfort and safety of the passengers who may be affected by the specified works, and such protective works as may be reasonably necessary for those purposes shall be constructed by Railtrack PLC with all reasonable dispatch, or, if Railtrack PLC so desires, such protective works shall be carried out by the Company at its own expense and the Company shall not commence the construction of the specified works until the engineer has notified the Company that the protective works have been completed.

9.  The Company shall give to the engineer not less than 56 days' notice of its intention to commence the construction of any of the specified works and also except in an emergency (when it shall give such notice as may be reasonably practicable), of its intention to carry out any works for the maintenance of the specified works in so far as such works of maintenance affect or interfere with railway property.

10.  The construction of the specified works and of any protective works carried out by the Company by virtue of the provisions of paragraph 8 above shall, when commenced, be carried out with all reasonable dispatch in accordance with the plans approved or deemed to be approved or settled as provided in paragraph 6 above and under the supervision (if given), and to the reasonable satisfaction, of the engineer, and in such manner as to cause as little damage as may be to railway property and as little interference as may be with the conduct of traffic on the railways of Railtrack PLC and the use by passengers of railway property and, if any damage to railway property or any such interference shall be caused by the carrying out of the specified works the Company shall, notwithstanding any such approval as aforesaid, make good such damage and shall pay to Railtrack PLC all reasonable expenses to which Railtrack may be put and compensation for any loss which it may sustain by reason of any such damage or interference.

11.  Nothing in paragraph 10 shall impose any liability on the Company with respect to any damage, cost, expense or loss which is attributable to the act, neglect or default of Railtrack or any person in its employ, or of its contractors or agents and any liability of the Company under this paragraph shall be reduced proportionately to the extent to which any damage, cost, expense or loss is attributable to the act, neglect or default of Railtrack or of any person in its employ, or of its contractors or agents.

12.  The Company 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 of the specified works.

13.  During the construction of any works by Railtrack PLC under this Schedule Railtrack PLC shall at all times afford reasonable facilities to the Company and its agents for access to those works, and shall supply the Company with such information as Railtrack PLC may reasonably require with regard to such works or the method of construction thereof.

14.  If any alterations or additions, either permanent or temporary, to railway property shall be reasonably necessary during the construction of the specified works, or during a period of 12 months after the completion of those works, in consequence of the construction of the specified works, such alterations and additions may be carried out by Railtrack PLC and, if Railtrack PLC gives to the Company reasonable notice of its intention to carry out such alterations or additions, the Company shall pay to Railtrack PLC the reasonable cost thereof including, in respect of permanent alternations and additions, a capitalised sum representing any 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.

15.  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 Company to Railtrack under this Schedule.

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

(a) in constructing any part of the specified works on behalf of the Company as provided by paragraph 7 above or in constructing any protective works under the provisions of paragraph 8 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 or procurement of the services 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, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;

(c) in respect of any special traffic working resulting from any speed restrictions which may, in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of the specified works, or from the substitution or diversion of services which may be reasonably 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 by reason or in consequence of the construction or failure of the specified works; and

(e) in respect of the supervision by the engineer of the construction of the specified works.

17.  The Company shall be responsible for, and make good to Railtrack PLC all reasonable 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 of the specified works (as opposed to their existence) or the failure of the specified works; or

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

and the Company shall indemnify Railtrack from and against all claims and demands arising out of or in connection with the construction 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 in accordance with any requirement of the engineer or under his supervision, shall not (if it was not attributable to the act, neglect or default of Railtrack or of any person in its employ, or of its contractors or agents) excuse the Company from any liability under the provisions of this Schedule.

18.—(1) Any liability of the Company under paragraph 17 above shall be reduced proportionately to the extent to which any costs, charges, damages and expenses are attributable to the act, neglect or default of Railtrack or of any person in its employ, or of its contractors or agents; and

(2) Railtrack shall give to the Company immediate notice of any claim or demand and no settlement or compromise shall be made without the prior consent of the Company.

19.—(1) The sums payable by the Company under paragraph 17 above shall include a sum equivalent to the relevant costs.

(2) Subject to the terms of any agreement between Railtrack PLC and the relevant train operators regarding the timing or method of payment of the relevant costs in respect of that train operator, Railtrack PLC shall promptly pay to each train operator the amount of any sums which Railtrack PLC receives under sub-paragraph (1) above which relates to the relevant costs of that train operator.

(3) The obligation under sub-paragraph (1) above to pay Railtrack PLC the relevant costs shall, in the event of default, be enforceable directly by the train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (2) above.

20.  Nothing in paragraph 19 above shall entitle Railtrack or any train operator to any compensation in relation to works which have been transferred to and vested in Railtrack PLC by any agreement made under article 29 of this Order; but nothing in this paragraph shall prejudice any entitlement of Railtrack or any train operator to compensation—

(a) which has arisen at the date of the transfer and vesting; or

(b) in respect of the failure of any works resulting from any defect present at the date upon which they are so transferred to and vested in Railtrack PLC.

21.  In the assessment of compensation payable under this Schedule there shall not be taken into account any enhancement of that compensation attributable to any action taken or any agreement entered into by Railtrack if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining compensation or increased compensation and any reference in this paragraph to compensation shall be deemed to relate to any payment due to Railtrack under this Schedule.

22.  Any difference arising between the Company and Railtrack under this Schedule shall be referred to and settled by arbitration under article 44 of this Order.

(1)

1985 c. 6.

(2)

1993 c. 43.