The Telford Railfreight Terminal (Donnington) Order 2005

PART 1 PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Telford Railfreight Terminal (Donnington) Order 2005 and shall come into force on 4th May 2005.

Interpretation

2.—(1) In this Order—

“the 1961 Act” means the Land Compensation Act 1961(1);

“the 1965 Act” means the Compulsory Purchase Act 1965(2);

“the 1984 Act” means the Road Traffic Regulation Act 1984(3);

“the 1990 Act” means the Town and Country Planning Act 1990(4);

“authorised works” means the scheduled works and any other works authorised by this Order;

“the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

“the Council” means the Council of the Borough of Telford & Wrekin;

“carriageway”, “cycleway” and “footpath” have the same meanings as in the Highways Act 1980(5);

“enactment” includes any order, byelaw, rule, regulation, scheme or other instrument having effect by virtue of an enactment;

“the land plans” means the plans certified by the Secretary of State as the land plans for the purposes of this Order;

“the limits of deviation” means the limits of deviation for the scheduled works shown on the works plans;

“the limits of land to be acquired or used” means the limits of land to be acquired or used shown on the land plans;

“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace; and “maintenance” shall be construed accordingly;

“the Order limits” means any of the limits of deviation or the limits of land to be acquired or used;

“owner”, in relation to land, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of land (whether in possession or reversion) and includes a person holding, or entitled to the rents and profits of, the land under a lease or tenancy having an unexpired term exceeding 3 years;

“the railways” means the railways comprised in the authorised works;

“the rights of way maps” means the rights of way maps certified by the Secretary of State as the rights of way maps for the purposes of this Order;

“the scheduled works” means the works specified in Schedule 1 to this Order;

“the sections” means the sections certified by the Secretary of State as the sections for the purposes of this Order;

“street” includes part of a street;

“street authority”, in relation to a street, has the same meaning as in Part III of the Street Works Act;

“the Street Works Act” means the New Roads and Street Works Act 1991(6);

“the tribunal” means the Lands Tribunal;

“the undertaking” means the undertaking authorised by this Order; and

“the works plans” means the plans certified by the Secretary of State as the works plans for the purposes of this Order.

(2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in or on land or in the air space over its surface.

(3) All directions, distances, lengths and points stated in any description of works, powers or lands shall be construed as if the words “or thereabouts” were inserted after each such direction, distance, length and point, and distances between points on a railway shall be taken to be measured along the centre line of the railway.

(4) Any reference in this Order to a point identified by a letter, with or without a number, shall be construed as a reference to the point so lettered on the land and works plans.

(5) Any reference in this Order to a work identified by the number of the work shall be construed as a reference to the work of that number authorised by this Order.

Incorporation of Railways Clauses Consolidation Act 1845

3.—(1) The following provisions of the Railways Clauses Consolidation Act 1845(7) shall be incorporated in this Order—

• section 24 (obstructing construction of railway), subject to the modification in paragraph (3);

• section 46 (crossing of roads—level crossings), subject to the modification in paragraph (4);

• section 47 (provision in cases where roads are crossed on a level);

• section 58 (company to repair roads used by them), except for the words from “and if any question” to the end;

• section 68 (accommodation works by company);

• section 71 (additional accommodation works by owners), except for the words “or directed by such justices to be made by the company” and “or, in case of difference, as shall be authorised by two justices”;

• sections 72 and 73 (supplementary provisions relating to accommodation works);

• section 77 (presumption that minerals excepted from acquisition of land);

• sections 78 to 85E and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by section 15 of the Mines (Working Facilities and Support) Act 1923(8);

• section 145 (recovery of penalties); and

• section 154 (transient offenders).

(2) In those provisions, as incorporated in this Order—

“the company” means the Council;

“prescribed”, in relation to any such provision, means prescribed by this Order for the purposes of that provision;

“the special Act” means this Order.

(3) Section 24 of the said Act of 1845, as incorporated in this Order, shall have effect as if the maximum fine which may be imposed on summary conviction for an offence under that section were, instead of a fine not exceeding level 2 on the standard scale, a fine not exceeding level 3 on the standard scale.

(4) In section 46 of the said Act of 1845, as incorporated in this Order, for the proviso there shall be substituted the words “Provided always, that, with the consent of the highway authority and subject to such conditions as the authority may reasonably impose, the railway may be carried across a highway on the level”.

PART 2 WORKS PROVISIONS

Principal powers

Power to construct and maintain scheduled works

4.—(1) The Council may construct and maintain the scheduled works.

(2) Subject to article 6, the scheduled works shall be constructed in the lines or situations shown on the works plans and in accordance with the levels shown on the sections.

(3) The railway authorised as Work No. 1 shall not be opened to traffic until the Council has completed the construction of the acoustic bund authorised as Work No. 5 and has provided the acoustic barrier between points C and D on sheet 7 of the works plans.

Power to construct and maintain ancillary works

5.—(1) The Council may, within the limits of deviation for the scheduled works, do such of the following as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the scheduled works, namely—

(a) make, provide and maintain all such approaches, bridges, ramps, means of access, shafts and stagings as the Council thinks fit;

(b) construct, provide and maintain all such embankments, aprons, abutments, retaining walls, wing walls, culverts and other works as may be necessary or convenient;

(c) alter the position of apparatus, including mains, sewers, drains and cables;

(d) alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses; and

(e) carry out and maintain such other works, of whatever description, as may be necessary or expedient.

(2) The Council may within the Order limits—

(a) carry out and maintain landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised works, and

(b) carry out and maintain works for the benefit or protection of land affected by the authorised works.

Power to deviate

6.  In constructing or maintaining any of the scheduled works, the Council may—

(a) deviate laterally—

(i) in respect of Work No. 5, to any extent not exceeding 6.5 metres in any direction from the centre line of that work shown on the works plans; and

(ii) in respect of any other scheduled work, from the lines or situations shown on the works plans, within the limits of deviation for that work shown on those plans; and

(b) deviate vertically from the levels shown on the sections—

(i) in respect of Work No. 5, to any extent upwards or downwards within the maximum height of 6 metres specified in the description of that Work in Schedule 1 to this Order; and

(ii) in respect of any other scheduled work, to any extent not exceeding 3 metres upwards and to any extent downwards.

Level crossings

7.—(1) The Council may construct the railways so as to carry them on the level across the ways specified in Schedule 2 to this Order.

(2) The Council shall provide, maintain and operate at or near any level crossing laid out in accordance with paragraph (1) such barriers or other protective equipment as the Health and Safety Executive may in writing require.

(3) Without prejudice to the generality of article 6, the Council may in the exercise of the powers conferred by this article alter the level of any way specified in Schedule 2 to this Order.

(4) In this article—

“barrier” includes gate;

“protective equipment” includes lights, traffic signs (within the meaning of section 64(1) of the 1984 Act), manual, mechanical, automatic, electrical or telephonic equipment or other devices.

Supplemental powers

Discharge of water

8.—(1) The Council may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, sewer or drain.

(2) The Council shall not discharge any water into any watercourse, public sewer or drain except with the consent of the authority to which it belongs; and such consent may be given subject to such terms and conditions as the authority may reasonably impose but shall not be unreasonably withheld.

(3) The Council shall not make any opening into any public sewer or drain except in accordance with plans approved by, and under the superintendence (if provided) of, the authority to which the sewer or drain belongs, but such approval shall not be unreasonably withheld.

(4) The Council shall not, in the exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(5) The Council shall take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance or oil or matter in suspension.

(6) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by section 85(1), (2) or (3) of the Water Resources Act 1991(9).

(7) In this article—

(a) “public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board, a local authority or a joint planning board;

(b) “watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and

(c) other expressions used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act.

Power to survey and investigate land

9.—(1) The Council may for the purposes of this Order—

(a) survey or investigate any land within the Order limits;

(b) without prejudice to the generality of sub-paragraph (a), make trial holes in such positions as it thinks fit on any such land to investigate the nature of the surface layer and subsoil and remove soil samples;

(c) without prejudice to the generality of sub-paragraph (a), carry out ecological or archaeological investigations on any such land;

(d) place on, leave on and remove from the land apparatus for use in connection with the exercise of any of the powers conferred by sub-paragraphs (a) to (c); and

(e) enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (d).

(2) No land may be entered, or equipment placed or left on or removed from the land under paragraph (1), unless at least 7 days' notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of the Council—

(a) shall, if so required, before or after entering the land produce written evidence of his authority to do so; and

(b) may take with him such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes shall be made under this article in a carriageway or footway without the consent of the street authority, but such consent shall not be unreasonably withheld.

(5) The Council shall make compensation for any damage occasioned, by the exercise of the powers conferred by this article, to the owners and occupiers of the land, such compensation to be determined, in case of dispute, under Part I of the 1961 Act.

Streets

Stopping up of ways, etc.

10.—(1) Subject to the provisions of this article, the Council may, in connection with the construction of the authorised works—

(a) stop up the ways specified in columns (1) and (2) of Parts 1 and 2 of Schedule 3 to this Order to the extent specified, by reference to the letters and numbers shown on the rights of way maps, in column (3) of those Parts of that Schedule; and

(b) stop up vehicular rights only over the street specified in columns (1) and (2) of Part 3 of Schedule 3 to this Order to the extent specified, by reference to the letters shown on the works plans, in column (3) of that Part of that Schedule.

(2) No way specified in columns (1) and (2) of Part 1 of Schedule 3 to this Order (being a way to be stopped up for which no substitute is to be provided) shall be wholly or partly stopped up under this article unless the condition specified in paragraph (3) is satisfied in relation to all the relevant land; and for this purpose “relevant land” means any land which abuts on either side of the way to be stopped up.

(3) The condition referred to in paragraph (2) is that—

(a) the Council is in possession of the land,

(b) there is no right of access to the land from the way concerned,

(c) there is reasonably convenient access to the land otherwise than from the way concerned,

(d) the owners and occupiers of the land have agreed to the stopping up.

(4) No way specified in columns (1) and (2) of Part 2 of Schedule 3 (being a way to be stopped up for which a substitute is to be provided) shall be wholly or partly stopped up under this article until the new way to be substituted for it, and which is specified in relation to it either by reference to the letters and numbers shown on the works plans or by reference to one of the scheduled works, in either case in column (4) of that Part of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use.

(5) Where a way has been stopped up under this article—

(a) all rights of way over or along the way so stopped up shall be extinguished; and

(b) the Council may, without making any payment but subject to sections 77 to 85E of, and Schedules 1 to 3 to, the Railways Clauses Consolidation Act 1845 (which relate to minerals under railways) appropriate and use for the purpose of its railway undertaking so much of the site of the way as is bounded on both sides by land owned by the Council.

(6) Any person who suffers loss by the extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.

(7) This article is subject to paragraph 2 of Schedule 7 to this Order.

Ways to be provided or reconstructed

11.  The Council may, in connection with the construction of the authorised works, provide each of the ways mentioned in Part 1 of Schedule 4 to this Order and reconstruct each of the ways mentioned in Part 2 of that Schedule.

Temporary stopping up of streets, etc.

12.—(1) The Council, during and for the purposes of the execution of the authorised works, may temporarily stop up, alter or divert any street in the Borough of Telford & Wrekin and may for any reasonable time—

(a) divert the traffic from the street, and

(b) subject to paragraph (3), prevent all persons from passing along the street.

(2) Without prejudice to the generality of paragraph (1), the Council may use any street stopped up under the powers conferred by this article as a temporary working site.

(3) The Council shall provide reasonable access for pedestrians going to or from premises abutting on a street affected by the exercise of the powers conferred by this article, if there would otherwise be no such access.

(4) Without prejudice to the generality of paragraph (1), the Council may exercise the powers conferred by this article in relation to the ways specified in Part 2 of Schedule 4 to this Order to the extent specified in that Schedule.

(5) The Council shall not exercise the powers conferred by this article—

(a) in relation to any street specified as mentioned in paragraph (4) without first consulting the street authority; and

(b) in relation to any other street without the consent of the street authority, but such consent shall not be unreasonably withheld.

(6) The provisions of the Street Works Act mentioned in paragraph (7) and any regulations made, or code of practice issued or approved under, those provisions shall apply (with the necessary modifications) in relation to the stopping up, alteration or diversion of a street by the Council under the powers conferred by this article where no street works are executed in that street as they would apply if the stopping up, alteration or diversion were occasioned by street works executed in the street by the Council.

(7) The provisions of the Street Works Act referred to in paragraph (6) are—

• section 54 (advance notice of certain works);

• section 55 (notice of starting date of works);

• section 59 (general duty of street authority to co-ordinate works);

• section 60 (general duty of undertakers to co-operate);

• section 69 (works likely to affect other apparatus in the street);

• section 76 (liability for cost of temporary traffic regulation);

• section 77 (liability for cost of use of alternative route); and

all such other provisions as apply for the purposes of the provisions mentioned above.

(8) Any person who suffers loss by the suspension of a private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.

PART 3 ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land

13.—(1) The Council may acquire compulsorily so much of the land shown on the land plans within the Order limits and described in the book of reference as may be required for or in connection with the authorised works, and may use any land so acquired for those purposes or for any other purposes connected with or ancillary to its railway undertaking.

(2) Without prejudice to the generality of paragraph (1), the Council may acquire compulsorily for the purposes specified in column (1) of Schedule 5 to this Order all or any of the land shown on the land plans within the limits of land to be acquired or used and so described in the book of reference as is referred to in columns (2) and (3) of that Schedule.

Application of Part I of Compulsory Purchase Act 1965

14.—(1) Part I of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, shall apply to the acquisition of land under this Order—

(a) as it applies to a compulsory purchase to which the Acquisition of Land Act 1981(10) applies; and

(b) as if this Order were a compulsory purchase order under that Act.

(2) Part I of the 1965 Act, as so applied, shall have effect as if section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provision as to the giving of bonds) were omitted.

Power to acquire new rights

15.—(1) The Council may compulsorily acquire such easements or other rights over any land referred to in article 13 as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.

(2) Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 6 to this Order), where the Council acquires a right over land under paragraph (1) it shall not be required to acquire a greater interest in it.

(3) Schedule 6 to this Order shall have effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.

(4) In so far as it applies to land specified in paragraph (5), paragraph (1) shall be treated as also authorising acquisition of easements or other rights by a statutory utility in any case where the Secretary of State gives his consent in writing.

(5) Paragraph (4) applies to land within the limits of deviation which is or will be required for use in relocating any apparatus which it is expedient to divert or replace in consequence of the carrying out of the works authorised by this Order; and in that paragraph “statutory utility” means a licence holder within the meaning of Part I of the Electricity Act 1989(11), a gas transporter within the meaning of Part I of the Gas Act 1986(12), a water undertaker within the meaning of the Water Industry Act 1991(13), a sewerage undertaker within the meaning of Part I of that Act and any local authority which is a relevant authority for the purposes of section 97 of that Act.

Compensation

Disregard of certain interests and improvements

16.—(1) In assessing the compensation (if any) payable to any person on the acquisition from him of any land under this Order, the tribunal shall not take into account—

(a) any interest in land, or

(b) any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(2) In paragraph (1) “relevant land” means the land acquired from the person concerned or any other land with which he is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.

Supplementary

Acquisition of part only of certain properties

17.—(1) This article shall apply instead of section 8(1) of the 1965 Act (as applied by article 14) in any case where—

(a) a notice to treat is served on a person (“the owner”) under the 1965 Act (as so applied) in respect of land forming only part of a house, building or factory or of land consisting of a house with a park or garden (“the land subject to the notice to treat”); and

(b) a copy of this article is served on the owner with the notice to treat.

(2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on the Council a counter-notice objecting to the sale of the land subject to the notice to treat and stating that he is willing and able to sell the whole (“the land subject to the counter-notice”).

(3) If no such counter-notice is served within that period, the owner shall be required to sell the land subject to the notice to treat.

(4) If such a counter-notice is served within that period, the question whether the owner shall be required to sell only the land subject to the notice to treat shall, unless the Council agrees to take the land subject to the counter-notice, be referred to the tribunal.

(5) If on such a reference the tribunal determine that the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner shall be required to sell the land subject to the notice to treat.

(6) If on such a reference the tribunal determine that only part of the land subject to the notice to treat can be taken—

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat shall be deemed to be a notice to treat for that part.

(7) If on such a reference the tribunal determine that—

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice, but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat shall be deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which the Council is authorised to acquire compulsorily under this Order.

(8) If the Council agrees to take the land subject to the counter-notice, or if the tribunal determine that—

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b) that the material detriment is not confined to a part of the land subject to the counter-notice,

the notice to treat shall be deemed to be a notice to treat for the land subject to the counter-notice whether or not the whole of that land is land which the Council is authorised to acquire compulsorily under this Order.

(9) In any case where by virtue of a determination by the tribunal under this article a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, the Council may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, if it does so, shall pay the owner compensation for any loss or expense occasioned to him by the giving and withdrawal of the notice, to be determined, in case of dispute, by the tribunal.

(10) Where the owner is required under this article to sell only part of a house, building or factory or of land consisting of a house with a park or garden, the Council shall pay him compensation for any loss sustained by him due to the severance of that part in addition to the value of the interest acquired.

Extinction of private rights of way

18.—(1) All private rights of way over land subject to compulsory acquisition under this Order shall be extinguished—

(a) as from the acquisition of the land by the Council, whether compulsorily or by agreement, or

(b) on the entry on the land by the Council under section 11(1) of the 1965 Act,

whichever is sooner.

(2) Any person who suffers loss by the extinguishment of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.

(3) This article does not apply in relation to any right of way to which section 271 or 272 of the 1990 Act (extinguishment of rights of statutory undertakers, etc.) applies.

Time limit for exercise of powers of acquisition

19.  No notice to treat shall be served under Part I of the 1965 Act, as applied to the acquisition of land by article 14, after the end of the period of 5 years beginning on the day on which this Order comes into force.

PART 4 MISCELLANEOUS AND GENERAL

Noise

Defence to proceedings in respect of statutory nuisance

20.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(14) (summary proceedings by persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows—

(a) that the nuisance relates to premises used by the Council for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works, and

(b) that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60 (or a consent given under section 61 or 65) of the Control of Pollution Act 1974(15).

(2) The following provisions of the Control of Pollution Act 1974, namely—

(a) section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990); and

(b) section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded),

shall not apply where the consent relates to the use of premises by the Council for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.

Miscellaneous

Trespass on railways, etc.

21.—(1) Any person who trespasses on the railways or on any enclosed land adjoining the railways and forming part of the undertaking shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) No person shall be convicted of an offence under this article unless it is shown that notices warning the public not to trespass upon the railways or any such land as is referred to in paragraph (1) were clearly exhibited and maintained at distances of not more than one kilometre apart along the boundary fence of the railways.

Power to operate and use authorised works

22.  The Council may operate and use the authorised works as a system, or part of a system, of transport for the carriage of goods.

Powers of disposal, agreements for operation, etc.

23.—(1) In this article—

“lease” includes an underlease and “lease”, where used as a verb, shall be construed accordingly;

“the transferee” means any person to whom the undertaking, or any part of it, is leased, sold or otherwise disposed of pursuant to this article; and

“the transferred undertaking” means so much of the undertaking as is leased, sold or otherwise disposed of pursuant to this article.

(2) The Council may, with the consent of the Secretary of State, sell, lease, charge or otherwise dispose of on such terms and conditions as it thinks fit, the whole or any part of the undertaking.

(3) (a) Except as may be otherwise provided in this Order, the transferred undertaking shall continue to be subject to all statutory or other provisions applicable to the transferred undertaking at the date of the lease, sale or other disposal (in so far as the same are still subsisting and capable of taking effect) and the transferee shall, to the exclusion of the Council, be entitled to the benefit of, and to exercise, all rights, powers and privileges, and be subject to all obligations, statutory or otherwise relating to the transferred undertaking (in so far as the same are still subsisting and capable of taking effect) to the intent that the Council shall be released from all such obligations.

(b) This paragraph shall have effect during the term of any lease and from the operative date of any sale or other disposal under paragraph (2).

(4) Without prejudice to the generality of paragraph (2), the Council may enter into and carry into effect agreements with respect to any of the following matters, namely, the construction, maintenance, use and operation of the undertaking or of any works comprised in it, by any other person, and other matters incidental or subsidiary thereto or consequential thereon, and the defraying of, or the making of contributions towards, the cost of the matters aforesaid by the Council or any other person.

(5) Any agreement under paragraph (4) may provide for the exercise of the powers of the Council under this Order by any other person and for the transfer to any person of the undertaking or any part or parts thereof together with the rights and obligations of the Council in relation thereto.

(6) The exercise of the powers under any enactment by any person in pursuance of any sale, lease, charge or other disposal under paragraph (2) or of any agreement under paragraph (4) shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those powers were exercised by the Council.

Application of landlord and tenant law

24.—(1) This article applies to any agreement for leasing to any person the whole or any part of the authorised works or the right to operate the same, and any agreement entered into by the Council with any person for the construction, maintenance, use or operation of the authorised works, or any of those works, so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants shall prejudice the operation of any agreement to which this article applies.

(3) Accordingly no such enactment or rule of law shall apply in relation to the rights and obligations of the parties to any lease granted by or under any agreement so as to—

(a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Planning permission: supplementary matters

25.—(1) Planning permission which is deemed by a direction under section 90(2A) of the 1990 Act to be granted in relation to works authorised by this Order shall be treated as specific planning permission for the purposes of section 264(3)(a) of that Act (cases in which land is to be treated as operational land for the purposes of that Act).

(2) In relation to the application of paragraph (3)(c) of the second Schedule of the Form of Tree Preservation Order set out in the Second Schedule to the Town and Country Planning (Tree Preservation Order) Regulations 1969(16) (including that paragraph as applied by regulation 3(ii) of the Town and Country Planning (Tree Preservation Order)(Amendment) and (Trees in Conservation Areas) (Exempted Cases) Regulations 1975(17), or as incorporated in any tree preservation order), any direction under section 90(2A) of the 1990 Act deeming planning permission to be granted in relation to works authorised by this Order shall be treated as deeming the permission to have been granted on application made under Part III of that Act for the purposes of that Part.

(3) In relation to the application of article 5(1)(d) of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Trees) Regulations 1999(18) as incorporated in any tree preservation order or as having effect by virtue of regulation 10(1)(a) of those Regulations, any direction under section 90(2A) of the 1990 Act deeming planning permission to be granted in relation to the works authorised by this Order shall not be treated as an outline permission.

Statutory undertakers, etc.

26.  The provisions of Schedule 7 to this Order shall have effect.

For protection of specified undertakers

27.  The provisions of Schedule 8 to this Order shall have effect.

For protection of Network Rail Infrastructure Limited

28.  The provisions of Schedule 9 to this Order shall have effect.

For protection of Environment Agency

29.  The provisions of Schedule 10 to this Order shall have effect.

Saving for Railways Act 1993

30.  Nothing in this Order or in any enactment incorporated with or applied by this Order, shall prejudice or affect the operation of Part I of the Railways Act 1993(19).

Certification of plans, etc.

31.  The Council shall, as soon as practicable after the making of this Order, submit copies of the book of reference, the sections and the land and works plans to the Secretary of State for certification that they are true copies of, respectively, the book of reference, sections and land and works plans referred to in this Order; and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Maintenance of approved works, etc.

32.—(1) Where pursuant to regulations(20) made under section 41 of the 1992 Act (approval of works, plant and equipment) approval has been obtained from the Health and Safety Executive with respect to any works, plant or equipment (including vehicles) forming part of the railways, such works, plant and equipment shall not be used in a state or condition other than that in which they were at the time that the approval was given unless any change thereto does not materially impair the safe operation of the railways.

(2) If without reasonable cause the provisions of paragraph (1) are contravened, the Council shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) No proceedings shall be instituted in England and Wales in respect of an offence under this article except by or with the consent of the Health and Safety Executive or the Director of Public Prosecutions.

Service of notices

33.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served by post.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 of the Interpretation Act 1978(21) as it applies for the purposes of this article, the proper address of any person in relation to the service on him of a notice or document under paragraph (1) is, if he has given an address for service, that address, and otherwise—

(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b) in any other case, his last known address at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and his name or address cannot be ascertained after reasonable enquiry, the notice may be served by—

(a) addressing it to him by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) This article shall not be taken to exclude the employment of any method of service not expressly provided for by it.

Application of existing enactments

34.—(1) In this article—

“BRB” means BRB (Residuary) Limited;

“the former railway” means so much of any railway or former railway as is situated within the Order limits but does not include any operational railway of Network Rail Infrastructure Limited;

“the relevant date” means—

(a)

in relation to so much of the former railway as is owned by the Council at the date of the coming into force of this Order, that date; and

(b)

in relation to any part of the former railway which at that date is not so owned, the earlier of the date upon which the Council acquires that part or the date upon which the Council takes entry for the purpose of constructing the authorised works.

(2) Except as may be otherwise provided in this Order, as from the relevant date the former railway or any part thereof shall continue to be subject to all statutory and other provisions applicable to it, or any part thereof, at that date (in so far as the same are still subsisting and capable of taking effect) and the Council shall, to the exclusion of BRB, be entitled to the benefit of, and to exercise, all rights, powers and privileges and be subject to all obligations statutory or otherwise relating to the former railway (in so far as the same are still subsisting and capable of taking effect), to the intent that BRB shall be released from all such obligations.

(3) Any enactment by which the former railway was authorised shall have effect subject to the provisions of this Order.

Disclosure of confidential information

35.  A person who—

(a) enters a factory, workshop or workplace in pursuance of the provisions of article 9 above; and

(b) discloses to any person any information obtained by him relating to any manufacturing process or trade secret,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale unless the disclosure is made in the course of performing his duty in connection with the purposes for which he was authorised to enter the land.

No double recovery

36.  Compensation shall not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.

Arbitration

37.  Any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Civil Engineers.

Signed by authority of the Secretary of State for Transport

Ellis Harvey

Head of Transport and Works Act Orders Unit

Department for Transport

13th April 2005