Article 46
1. In this Part of this Schedule—E+W
“construction” includes execution, placing, alteration, replacement and reconstruction and “constructed”has a corresponding meaning; and
“Trinity House” means the Corporation of Trinity House of Deptford Strond.
2.—(1) DLRL shall—E+W
(a)during the whole time of the construction of a tidal work, exhibit every night from sunset to sunrise at or near the work any such lights, and
(b)take such other steps for the prevention of danger to navigation from the construction of a tidal work,
as Trinity House may from time to time reasonably direct.
(2) If DLRL fails to comply in any respect with a direction given under this paragraph it shall be guilty of an offence.
3.—(1) In case of damage to or destruction or decay of a tidal work, or any part of a tidal work, during construction of the authorised works, DLRL shall as soon as reasonably practicable—E+W
(a)give notice to Trinity House, and
(b)lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House may reasonably direct.
(2) If DLRL fails to notify Trinity House as required by this paragraph or to comply in any respect with a direction given under this paragraph it shall be guilty of an offence.
4.—(1) Where DLRL is guilty of an offence under paragraphs 2 or 3 above it shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.E+W
(2) In proceedings for any such offence it shall be a defence for DLRL to show that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
(3) If in any case the defence provided by sub-paragraph (2) involves the allegation that the commission of the offence was due to the act or default of another person, DLRL shall not, without the leave of the court, be entitled to rely on the defence unless, not later than 7 days before the hearing of the proceedings, it has served on the prosecution a notice in writing giving such information as was then in its possession identifying or assisting in the identification of the other person.
5. Nothing in this Part of this Schedule shall prejudice or derogate from the powers, rights and privileges of Trinity House.E+W
6. In this Part of this Schedule—E+W
“the appropriate authority” means—
the Port of London Authority, in relation to any specified work constructed in, on, over or under so much of the River Thames as is within the limits of the Port of London (as defined in the Port of London Act 1968 M1); or
RoDMA, in relation to any tidal work constructed in, on, over or under King George V Dock;
“construction” includes execution, placing, relaying, renewal and works of maintenance and, in its application to a specified work which includes or comprises any operation, means the carrying out of that operation and “construct” and “constructed” shall be construed accordingly;
“plans” shall include plans, sections, elevations, drawings, specifications and programmes and construction methods including in the case of the Port of London Authority and where applicable, such relevant hydraulic information about the River Thames as may be reasonably requested by the Authority;
“specified work” means so much of any authorised work as is in, on, over or under the River Thames or King George V Dock or involves cutting their banks and walls (including survey work under article 21) but does not include any work constructed or placed within the tunnels; and
“working day” means any day from Monday to Friday which is not a public holiday.
Marginal Citations
7. The provisions of this Part of this Schedule shall, unless otherwise agreed in writing between DLRL and the appropriate authority (or, in the case of paragraphs 13, 14 and 15, the Port of London Authority), have effect for the protection of the appropriate authority and users of the River Thames and King George V Dock (and, in the case of paragraphs 13, 14 and 15, the Port of London Authority.E+W
8.—(1) DLRL shall not commence any specified work until it has supplied to the appropriate authority such proper and sufficient plans for the same and such further particulars as may be available to it as the appropriate authority shall reasonably require and those plans have been approved in writing by the appropriate authority (such approval not to be unreasonably withheld).E+W
(2) The appropriate authority shall notify DLRL within a period of 28 days starting with the date on which such plans of a specified work have been furnished to the appropriate authority, or such longer period as may be agreed in writing by the appropriate authority and DLRL, of its approval or disapproval of those plans.
(3) Any approval of the appropriate authority required under this paragraph may be given subject to such reasonable modifications, terms and conditions as the appropriate authority may make for the protection of—
(a)vessel movement on, or the flow or regime of, the River Thames or King George V Dock (as appropriate), or
(b)the use of its land, or the River Thames or King George V Dock (as appropriate) for the purposes of performing its statutory functions,
including any relocation, or provision, of works, new works, moorings, apparatus and equipment necessitated by the specified work, or any other works authorised by this Order, or their construction.
(4) If within a period of 28 days starting from the date on which it receives proper and sufficient plans of a specified work under sub-paragraph (1) the appropriate authority does not notify DLRL of its approval or disapproval of those plans, it shall be deemed to have disapproved of the said plans or such part of the plans as it has not approved.
(5) Where DLRL is aggrieved by—
(a)the disapproval of the appropriate authority of any plans submitted under sub-paragraph (1),
(b)any term or condition upon which the appropriate authority propose to approve the plans, or
(c)any modification by the appropriate authority of the plans,
it may within 28 days from the date upon which the appropriate authority is deemed to have notified its disapproval of the plans or the date upon which the appropriate authority notifies DLRL of its decision, as the case may be, appeal to the Secretary of State for Transport.
(6) If an appeal to the Secretary of State is made, the following provisions shall apply—
(a)the appeal shall be made by written notice stating the grounds of the appeal,
(b)the appellant shall send a copy of the notice of appeal to the appropriate authority,
(c)the appropriate authority may make written representations to the Secretary of State within 10 working days from receipt by it of the copy notice of appeal, and if it does so shall forthwith send a copy of its representations to the appellant,
(d)the Secretary of State may confirm, vary or revoke a decision or requirement against which an appeal is made and may make any consequential amendments necessary, and
(e)the Secretary of State may direct the appropriate authority or DLRL to give effect to the decision of the Secretary of State on the appeal and the appropriate authority or DLRL (as the case may be) shall forthwith comply with any direction given.
(7) DLRL shall carry out all operations for the construction of any specified work with all reasonable dispatch and to the reasonable satisfaction of the appropriate authority so that vessel movement on, or the flow or regime of the River Thames or King George V Dock (as appropriate), and the exercise of the appropriate authority’s statutory functions, shall not suffer more interference than is reasonably practicable. The appropriate authority shall be entitled at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey those operations and DLRL shall provide all reasonable facilities to enable such inspection and survey to take place.
(8) If any specified work is constructed otherwise than in accordance with the requirements of this Part of this Schedule or with any term, modification or condition in an approval pursuant to sub-paragraph (3), the appropriate authority may by notice in writing require DLRL at DLRL’s own expense to comply with the requirements of this Part of this Schedule or that term, modification or condition. If DLRL does not do so or is unable to do so then the appropriate authority may in writing require DLRL to remove, alter or pull down the specified work and, where the specified work is removed, to restore the site of that work to its condition prior to the construction of the specified work, to such an extent and within such limits as the appropriate authority think proper.
(9) DLRL shall, upon completion of the construction of any part of an authorised work, remove as soon as is practicable any tidal work and materials for such tidal work carried out or placed only for the purposes of that part of the authorised work, or that part of the authorised work and another part or parts which have already been completed, and shall make good the site to the reasonable satisfaction of the appropriate authority.
(10) DLRL shall not—
(a)deposit in or allow to fall or be washed into the River Thames or King George V Dock any gravel, soil or other material except so far as may be necessary or unavoidable in the construction of a specified work, or to the extent permitted by any approval of a specified work;
(b)discharge or allow to escape either directly or indirectly into the River Thames or King George V Dock any offensive or injurious matter in suspension or otherwise; or
(c)discharge into the River Thames or King George V Dock any water by any watercourse, public sewer or drain without the consent of the appropriate authority and such consent may be given subject to such terms and conditions as the appropriate authority may reasonably impose but shall not be unreasonably withheld.
(11) If a specified work is abandoned or falls into decay, the appropriate authority may by notice in writing require DLRL either to repair or restore the specified work, or any part of it, or to remove the specified work and restore the site of that work to its condition prior to the construction of the specified work, to such an extent and to such limits as the appropriate authority think proper.
(12) If a work consisting partly of a specified work and partly of works on or over land above the level of high water spring tides is abandoned or falls into decay and that part of the works on or over land above the level of high water springs is in such condition as to interfere or cause reasonable apprehension that it may interfere with the right of navigation on the River Thames or other public rights over the foreshore, the Port of London Authority may include that part of the works or any portion thereof in any notice under sub-paragraph (11).
(13) If on the expiration of such reasonable period as may be specified in a notice under sub-paragraph (11) above the work specified therein has not been completed to the satisfaction of the appropriate authority, the appropriate authority may undertake that work and any expenditure reasonably incurred by them in so doing shall be recoverable from DLRL.
(14) No part of Work No. 1 shall be constructed under the River Thames as cut and cover tunnel.
9.—(1) This paragraph applies in relation to any siltation or scouring of the River Thames which is wholly or partly caused by a specified work during the period beginning with the start of the carrying out or construction of that work and ending with the expiration of 10 years after the date on which it is completed.E+W
(2) If—
(a)any part of the River Thames becomes subject to siltation or scouring;
(b)such siltation and scouring is siltation and scouring to which this paragraph applies; and
(c)for the safety of navigation or in the interest of persons using the River Thames or for the protection of works in the River Thames, such siltation and scouring should in the reasonable opinion of the appropriate authority be removed or made good,
DLRL shall pay to the appropriate authority (in the manner set out in sub-paragraph (4)) any additional expense to which the appropriate authority may reasonably be put in dredging the River Thames to remove the siltation or in making good the scouring, in so far as (in either case) it is attributable to the specified work.
(3) DLRL shall pay to the appropriate authority the costs reasonably incurred by them which they would not otherwise have incurred in establishing whether siltation or scouring to which this paragraph applies has occurred.
(4) DLRL shall, on application by the appropriate authority, make to them one or more interim payments on account of any sums required to be paid under sub-paragraph (2), being payments of such amounts and made at such times as are reasonable for meeting the current expenditure of the appropriate authority in removing the siltation or making good the scouring.
10.—(1) DLRL shall mark and light a specified work in accordance with such reasonable directions as the appropriate authority shall give from time to time.E+W
(2) DLRL shall provide at any specified work, or shall afford reasonable facilities at such work (including an electricity supply), for the appropriate authority to provide at DLRL’s cost, from time to time, such navigational lights, signals, radar or other apparatus for the benefit, control and direction of navigation as the appropriate authority may deem necessary by reason of the construction and presence of the specified work and shall ensure access remains available to them during and following construction of the specified work.
11.—(1) Subject to article 4(8) and to sub-paragraph (2) the exercise in, under or over the River Thames and King George V Dock by DLRL of any of its functions under this Order shall be subject to any enactment relating to or made by the appropriate authority (including byelaws or directions of the appropriate authority and the exercise by the appropriate authority or its harbourmaster or manager of any powers and functions conferred on it or him by or under any enactment) but in carrying out its functions under any such enactment the appropriate authority shall at all times act reasonably having regard to the provisions and effect of this Order.E+W
(2) Notwithstanding any such enactment mentioned in sub-paragraph (1), the Port of London Authority will not do anything, or permit anything to be done, to or affecting the tunnels or any land vested in DLRL in connection with the tunnels, without the consent in writing of DLRL.
12.—(1) DLRL shall be responsible for and make good to the appropriate authority all costs, charges, damages and expenses which may reasonably be incurred by the appropriate authority—E+W
(a)by reason of the construction of a specified work or failure thereof, or
(b)by reason of any act or omission of DLRL or of any persons in its employ or of its contractors or agents or others whilst engaged upon the construction of a specified work or dealing with any failure of such work,
and DLRL shall indemnify the appropriate authority from and against all claims and demands arising out of or in connection with the specified work or any such failure, act or omission and the fact that any act or thing may have been done by the appropriate authority on behalf of DLRL or done by DLRL, any person in its employ or its contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the appropriate authority, or in a manner approved by the appropriate authority, or under its supervision or the supervision of its duly authorised representative shall not (if it was done or required without negligence on the part of the appropriate authority or its duly authorised representative, or any person in its employ or its contractors or agents) excuse DLRL from liability under the provisions of this indemnity.
(2) The appropriate authority shall give DLRL reasonable notice of any such claim or demand as is referred to in sub-paragraph (1) and no settlement or compromise thereof shall be made without the prior consent of DLRL.
13.—(1) DLRL shall not in the exercise of the powers conferred by this Order prevent such access as may be reasonably required by the Port of London Authority for the purpose of maintaining the works under the entrance lock to King George V Dock specified as item 12 in Schedule 7 to the Port of London Act 1968 (“the relevant structures”).E+W
(2) The Port of London Authority agrees that except in an emergency it will not maintain those works during the period when DLRL may be using that lock in such a way as would render the lock inoperable or unusable.
(3) Paragraph 12 shall extend to any costs, charges, damages and expenses reasonably incurred by, and any claim and demands made against, the Port of London Authority in respect of damage caused to the relevant structures by reason of the construction of a specified work or any such failure, act or omission as is referred to in that paragraph.
14. DLRL shall not exercise the powers of article 30(2) in relation to the land numbered 10 on the deposited plans except with the consent of the Port of London Authority, which shall not be unreasonably withheld but which may be given subject to reasonable conditions.E+W
15.—(1) In constructing Works Nos 1 and 5 DLRL will use its reasonable endeavours to avoid disturbing any mooring or anchor inserted into the bed of the River Thames.E+W
(2) If such a mooring or anchor is located in a position that physically obstructs the construction of Work No. 1 or 5, DLRL may remove so much of the mooring or anchor that comprises the obstruction and thereafter the Port of London Authority will remove so much of the remainder of the mooring or anchor that lies above the uppermost surface of the bed of the River Thames but it will leave in position and not interfere with that part of the mooring or anchor lying between that point and the outer extremity of Work No. 1 or 5 (as the case may be).
(3) DLRL will pay to the Port of London Authority the costs reasonably incurred by it in removing, pursuant to sub-paragraph (2), that part of the remainder of the mooring or anchor mentioned in that sub-paragraph which the Authority is obliged to remove and replacing that mooring or anchor elsewhere and if the mooring removed is a screw mooring which is used in conjunction with a second screw mooring to moor vessels fore and aft those costs shall also include the cost of removing and replacing elsewhere the second screw mooring if it is not required to be removed pursuant to sub-paragraph (2).
(4). Following notice to the Port of London Authority given pursuant to and in accordance with sub-paragraph (5), the Authority will not insert any mooring or anchor into the bed of the River Thames in any position where—E+W
(a)the face of the base of the anchor or mooring that is nearest to any tunnel structure forming part of Work No. 1 or 5 would be within a circular zone having a radius of 9 metres centred on the centre point of the tunnel structure in cross-section; or
(b)a line drawn at 45 degrees above the plane of horizontal commencing from and touching the face referred to in paragraph (a) would enter that zone.
(5) At any time after this Order has been made DLRL may give notice to the Port of London Authority that DLRL is intending to construct the authorised works and that accordingly it requires the restrictions in sub-paragraph (4) to take effect. Any such notice shall be accompanied by a plan on a scale of not less than 1:2500 and sections and cross-sections on scales of not less than 1:100 showing the intended situation and levels of Works Nos. 1 and 5 where any part of them is intended to pass under the River Thames.
(6) If the restrictions in sub-paragraph (4) are brought into effect by a notice given pursuant to and in accordance with sub-paragraph (5), they shall cease to have effect if the authorised works are not subsequently commenced within 5 years of the coming into force of this Order.
(7) Following notice to the Port of London Authority given by DLRL at any time after construction of the authorised works has been commenced, the Port of London Authority will not thereafter remove so much of any mooring or anchor that is within the bed of the River Thames at that time if there is any prospect that in doing so the zone mentioned in sub-paragraph (4) could be disturbed.
(8) If by virtue of sub-paragraph (4) the Port of London Authority is unable to replace an existing screw mooring in the same place, DLRL will pay to the Authority the costs reasonably incurred by it in removing and replacing any second screw mooring which is used in conjunction with that mooring to moor vessels fore and aft.
16. Completion of Work No.1 DLRL shall supply to the Port of London Authority a plan on a scale of not less than 1:2500 and sections and cross-sections on scales of not less than 1:100 showing the situation and levels of Work No.1 where it passes under the River Thames.E+W
17. Any difference arising between DLRL and the appropriate authority under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule or any difference subject to an appeal to the Secretary of State under paragraph 8(5)) shall be referred to and settled by arbitration in accordance with article 55.E+W