The Leicestershire County Council (Ashby de la Zouch Canal Extension) Order 2005

Article 32

SCHEDULE 10 PROVISIONS FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

1.  The following provisions shall apply unless otherwise agreed in writing between Leicestershire County Council and the Environment Agency.

2.  In this Schedule—

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

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

“drainage work” means 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;

“fishery” means any waters containing fish, and fish in, or migrating to or from such waters and the spawn, habitat or food of such fish;

“plans” includes sections, drawings, specifications and method statements;

“specified work” means so much of any authorised works as are in, on, under, over or within 16 metres of a watercourse or are likely to—

(a)

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

(b)

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

(c)

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

(d)

affect the conservation, distribution or use of water resources.

3.  Before beginning to construct any specified work, the undertaker 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.

4.  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 12.

5.  Any approval of the Environment Agency required under paragraph 4—

(a) shall be deemed to have been given if it is neither given nor refused in writing within 56 days of the submission of the plans for approval; and

(b) 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 or in the discharge of its environmental and recreational duties.

6.  Where any approval required under paragraph 4 is refused, it shall be accompanied by a statement of the grounds of refusal.

7.  The requirements which the Environment Agency may make as a condition of its approval under paragraph 4 include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

(a) to safeguard any drainage work against damage, or

(b) 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.

8.  Any specified work, and any protective works required by the Environment Agency as a condition of its approval under paragraph 4, shall be constructed—

(a) with all reasonable despatch in accordance with the plans approved or deemed to have been approved under this Schedule; and

(b) to the reasonable satisfaction of the Environment Agency;

and any officer of the Environment Agency authorised to act on its behalf for the purpose shall be entitled to watch and inspect the construction of such works.

9.  The undertaker 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.

10.  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 undertaker, at the undertaker’s own expense, to comply with the requirements of this Schedule or, if the undertaker so elects and the Environment Agency in writing consents, to remove, alter or pull down the structure 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.

11.  Subject to paragraph 12, if within a reasonable period, being not less than 28 days from the date when a notice under paragraph 10 is served upon the undertaker, it has failed to begin to take steps to comply with the requirements of the notice or 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 undertaker.

12.  In the event of any dispute as to whether the condition in paragraph 10 for the service of a notice under that paragraph is met in relation to any work in respect of which a notice has been served under that paragraph, or as to the reasonableness of any requirement of such a notice, the Environment Agency shall not except in an emergency exercise the powers conferred by paragraph 11 until the dispute has been finally determined.

13.  The undertaker shall from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation, on land owned by the undertaker or which it otherwise controls, or on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the Order or is already in existence.

14.  If any such work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Environment Agency, the Environment Agency may by notice in writing require the undertaker to repair and restore the work, or any part thereof, or, if the undertaker so elects and the Environment Agency in writing consents, to remove the work and restore the site to its former condition, to such extent and within such limits as the Environment Agency may reasonably require.

15.  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 paragraph 14 on the undertaker, the undertaker has failed to begin to take 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 itself take any steps necessary to meet their requirements and may recover from the undertaker any expenditure reasonably incurred by it in doing so.

16.  In the event of any dispute as to the reasonableness of any requirement of a notice served under paragraph 14, the Environment Agency shall not, except in a case of an emergency, exercise the powers conferred by paragraph 15 above until the dispute has been finally determined.

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

18.  The undertaker shall take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in any fishery during the construction of any specified work.

19.  If by reason of—

(a) the construction of any specified work, or

(b) the failure of any such work,

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

20.  If, within such time as may be reasonable for that purpose after the receipt of written notice from the Environment Agency of any damage or expected damage to the fishery, the undertaker fails to take such steps as are specified in a notice under paragraph 19, the Environment Agency may take those steps and may recover from the undertaker the expense reasonably incurred by it in doing so.

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

22.  The undertaker shall indemnify the Environmental Agency in respect of all costs, charges and expenses which the Environment Agency may reasonably incur—

(a) in the examination or approval of plans under this Schedule; or

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

23.  Without prejudice to the other provisions of this Schedule, the undertaker 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 which is such as to impair its efficiency for the purposes of flood defence,

(b) any damage to any fishery,

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

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

(e) any impairment of 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 undertaker or its contractors or agents whilst engaged upon the work.

24.  The Environment Agency shall give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of the undertaker.

25.  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 direction or award of an arbitrator, shall not relieve the undertaker from any liability for a failure to comply with any provision of this Schedule.

26.  Any dispute arising between the undertaker and the Environment Agency under this Schedule (other than a difference as to its construction) shall, if the parties agree, be determined by arbitration, but shall otherwise be determined by the Secretary of State for the Environment Food and Rural Affairs.