PART 2WORKS PROVISIONS

Supplementary

Discharge of water15.

(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, public 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 199114.

(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 or a local authority;

(b)

“watercourse” includes all rivers, streams, ditches, canals, 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.

Protective works to buildings16.

(1)

Subject to the following provisions of this article, the Council may at its own expense and from time to time carry out such protective works to any building within the Order limits as the Council considers to be necessary or expedient.

(2)

Protective works may be carried out—

(a)

at any time before or during the construction in the vicinity of the building of any part of the authorised works; or

(b)

after the completion of the construction of that part of the authorised works, at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised works is first opened for use.

(3)

For the purpose of determining how the functions under this article are to be exercised the Council may enter and survey any building falling within paragraph (1) and any land belonging to it.

(4)

For the purpose of carrying out protective works under this article to a building the Council may (subject to paragraphs (5) and (6))—

(a)

enter the building and any land belonging to it; and

(b)

where the works cannot be carried out reasonably conveniently without entering land adjacent to the building, enter the adjacent land (but not any building erected on it).

(5)

Before exercising—

(a)

a right under paragraph (1) to carry out protective works to a building;

(b)

a right under paragraph (3) to enter a building;

(c)

a right under paragraph (4)(a) to enter a building or land; or

(d)

a right under paragraph (4)(b) to enter land,

the Council shall, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days' notice of their intention to exercise that right and, in a case falling within sub-paragraph (a) or (c), specifying the protective works proposed to be carried out.

(6)

Where notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 54 (arbitration).

(7)

The Council shall compensate the owners and occupiers of any building or land in relation to which the powers of this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8)

Where—

(a)

protective works are carried out under this article to a building; and

(b)

within the period of 5 years beginning with the day on which the part of the authorised works constructed within the vicinity of the building is first opened for use, it appears that the protective works are inadequate to protect the building against damage caused by the construction or operation of that part of the works,

the Council shall compensate the owners and occupiers of the building for any damage sustained by them.

(9)

Nothing in this article shall relieve the Council from any liability to pay compensation under section 10(2) of the 1965 Act.

(10)

Any compensation payable under paragraph (7) or (8) shall be determined, in case of dispute, under Part 1 of the 1961 Act.

(11)

In this article—

(a)

“building” includes any structure or erection or any part of a building, structure or erection;

(b)

any reference to a building within a specified distance of a work includes—

(i)

in the case of a work under the surface of the ground, a reference to any building within the specified distance of the point on the surface below which the work is situated, and

(ii)

where a work has not commenced, a reference to a building within the specified distance of the proposed site of the work; and

(c)

“protective works”, in relation to a building, means—

(i)

underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, maintenance or operation of the authorised works; and

(ii)

any works the purpose of which is to remedy any damage which has been caused to the building by the construction, maintenance or operation of the authorised works.

Power to survey and investigate land17.

(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 the Council 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 1 of the 1961 Act.

Town and country planning18.

(1)

In relation to the application of paragraph (3)(c) of the Second Schedule of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Tree Preservation Order) Regulations 196915 (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 197516, 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 3 of that Act for the purposes of that Part.

(2)

In relation to the application of article 5(l)(d) of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Trees) Regulations 199917 as incorporated in any tree preservation order or as having effect by virtue of regulation 10(l)(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 planning permission.

(3)

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).

(4)

Translink shall be regarded as a road transport undertaking for the purposes of section 262(1) of the 1990 Act (meaning of “statutory undertakers”).