The Network Rail (Hitchin (Cambridge Junction)) Order 2011

Article 35

SCHEDULE 13 FOR PROTECTION OF THE ENVIRONMENT AGENCY

1.—(1) For the protection of the Environment Agency the following provisions of this Schedule shall, unless otherwise agreed in writing between Network Rail and the Agency, have effect.

(2) In this Schedule —

“the Agency” means the Environment Agency;

“foundation works risk assessment” means an assessment of the effects of piling works upon the water table and aquifers which shall include a method statement;

“ground investigation programme” means a programme for the carrying out of ground investigations and groundwater risk assessments within the Order limits and in particular upon or within the vicinity of the former landfill site at Cadwell Lane and land within the ownership of Anglian Water Services Limited;

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

“railway embankment retaining wall” means the retaining wall proposed to be constructed as part of the construction of the railway embankment to the south of Cadwell Lane;

“remediation strategy” means a strategy for the remediation of any identified ground or groundwater contamination which shall include an options appraisal and validation plan, details of the remediation measures required and how they will be undertaken and which shall also identify the data which will be presented in order to demonstrate that remediation works have been completed;

“specified works” means any authorised works which will or may be situated within plot numbers 3, 6, 7, 8, 9, 15, 16, 17, 17a, 18, 19, 21, 22, 23, 24, 25, 26, 26a, 28, 31, 31a, 34, 41, 42, 43, 44, 47, 47A, 48, 50, 51, 52, 60, 61 and 62 but only to that extent; and

“verification report” means a report containing data which demonstrates that remediation works have been completed and which assesses the effectiveness of such works.

Consents or Approvals

2.—(1) Where under this Schedule the Agency is required to give its consent or approval in respect of any matter—

(a) such consent or approval shall not be unreasonably withheld or delayed;

(b) if by the end of the period of 28 days, beginning with the first working day following the day on which a matter is effectively submitted by Network Rail to the Agency for its approval the Agency has not intimated its refusal to give its consent or approval in respect of any matter, it shall be deemed to have consented to or approved the matter as submitted;

(c) in the event that the Agency refuses its consent or approval of any matter, such refusal shall be accompanied by a statement of the grounds for refusal; and

(d) any approval issued by the Agency under this Schedule may be subject to such reasonable requirements as the Agency may make for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental and recreational duties and Network Rail shall construct the specified works in accordance with such requirements.

(2) The Agency shall use its reasonable endeavours to respond to the submission of any matters before the expiration of the period mentioned in sub-paragraph (1)(b).

(3) Nothing in this Schedule, including the issue by the Agency of a refusal to approve of or consent to a submitted matter or of an approval or consent subject to requirements, shall preclude Network Rail from submitting to the Agency at any time or from time to time a new or revised matter for the Agency’s reasonable approval and where Network Rail intends a new or revised matter to be considered instead of a matter previously submitted, it shall advise the Agency accordingly.

(4) Any request for approval or consent issued by Network Rail to the Agency under this Schedule shall be deemed to have been effectively submitted, for the purposes of sub-paragraph 2(1)(a), if sent by recorded delivery or by registered delivery to the registered office of the Agency.

Works by the Agency

3.  Network Rail shall not in the exercise of the powers conferred by this Order compromise the ability of the Agency to carry out ground investigations or remediation works within plot numbers 26, 31, 31A and 34.

Ground Investigation Programme and Remediation Strategy

4.—(1) Network Rail shall before commencing the construction of any specified work submit to the Agency for its reasonable approval a ground investigation programme.

(2) Network Rail shall supply the Agency with the results of any ground investigations or groundwater risk assessments carried out as part of any ground investigation programme approved pursuant to sub-paragraph (1) and shall consult with the Agency as regards those results.

(3) If following receipt of any results and after having been consulted by Network Rail regarding those results in accordance with sub-paragraph (2) the Agency reasonably considers that—

(a) an amendment to the approved ground investigation programme; or

(b) remediation works,

are required, it shall advise Network Rail accordingly.

(4) Upon receiving advice from the Agency that it considers an amendment to the approved ground investigation programme to be required pursuant to sub-paragraph (3), Network Rail shall prepare and submit to the Agency for its reasonable approval a revised ground investigation programme.

(5) Upon receiving advice from the Agency that it considers remediation works to be required pursuant to sub-paragraph (3), Network Rail shall prepare and submit to the Agency for its reasonable approval a remediation strategy.

(6) Following completion of any work prescribed by any remediation strategy approved pursuant to sub-paragraph (4), Network Rail shall submit to the Agency for its reasonable approval a verification report.

(7) Construction of any specified work and any ground investigation shall not be commenced except—

(a) in accordance with any relevant ground investigation programme (or any approved amendment of it) or relevant remediation strategy approved pursuant to this paragraph; and

(b) following the approval by the Agency of any relevant verification report submitted to it under sub-paragraph (5).

(8) In sub-paragraph (7), a ‘relevant’ ground investigation programme, remediation strategy or verification report is one which relates to any part of the land upon which it is proposed to construct the specified work in question.

Piling Works

5.  Network Rail shall before commencing piling works in connection with the construction of the railway embankment retaining wall and the railway viaduct (both forming part of Work No. 1) submit to the Agency for its reasonable approval a foundation works risk assessment and no such piling works shall be carried out except in accordance with such foundation works risk assessment as has been approved by the Agency or settled by arbitration.

Replacement public open space

6.—(1) Network Rail shall, before carrying out any works to the exchange land referred to in article 30 in order to lay it out as replacement public open space, submit to the Agency for its reasonable approval a ground investigation programme and remediation strategy in respect of that land.

(2) Following completion of any works prescribed by any remediation strategy approved pursuant to sub-paragraph (1) Network Rail shall submit to the Agency for its reasonable approval a verification report.

(3) In the event that the Agency refuses to approve a verification report submitted to it under this paragraph, Network Rail shall submit a new verification report to the Agency for its reasonable approval.

(4) Any works proposed to be carried out by Network Rail in order to lay the exchange land out as replacement public open space shall not be commenced—

(a) prior to implementation of any ground investigation programme or remediation strategy approved pursuant to sub-paragraph (1); and

(b) until the Agency has approved a verification report submitted to it under this paragraph.

Attenuation Basin

7.  Network Rail shall before commencing construction of Work No. 4 supply the Agency with plans of that work for the reasonable approval of the Agency and Work No. 4 shall not be constructed except in accordance with such plans as have been approved by the Agency or settled by arbitration.

Contaminated Land Management Plan

8.  Network Rail shall require its contractor to develop a contaminated land management plan and shall submit the contaminated land management plan to the Agency for its reasonable approval before commencing construction of the specified works and no specified works shall be constructed except in accordance with any contaminated land management plan approved by the Agency or settled by arbitration.

Bioswales

9.  Network Rail shall before commencing construction of any bioswale supply the Agency with plans of the proposed bioswale for the reasonable approval of the Agency and no bioswale shall be constructed except in accordance with such plans as have been approved by the Agency or settled by arbitration.

Contamination not previously identified

10.—(1) If during the construction of the authorised works, any contamination is found which has not previously been identified as being present, Network Rail shall cease construction of the specified work in question and shall not, unless otherwise agreed with the Agency, re-commence the construction of that work until it has prepared and submitted to the Agency for its reasonable approval—

(a) an appropriate remediation strategy; or

(b) (where a remediation strategy has already been approved pursuant to paragraph 4) an amendment to an approved remediation strategy

detailing how the unsuspected contamination will be addressed.

(2) No further construction of a specified work in respect of which construction has ceased pursuant to sub-paragraph (1) shall take place except in accordance with a remediation strategy or an amendment to an approved remediation strategy as has been approved by the Agency or settled by arbitration.

(3) Nothing in sub-paragraph (1) shall prohibit Network Rail from completing any construction activities already commenced where it is reasonably considered by Network Rail to be necessary to complete an activity in order to make the construction site safe.

Arbitration

11.  Any dispute arising between Network Rail and the Agency under this Schedule shall, if the parties agree, be determined by arbitration in accordance with article 45 (arbitration), but shall otherwise be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly on a referral to them by Network Rail or the Agency, after notice in writing by one to the other.