The Ashton Vale to Temple Meads and Bristol City Centre Rapid Transit Order 2013

SCHEDULES

Articles 2(1) and 5

SCHEDULE 1 SCHEDULED WORKS

(1) Number of Work	(2) Description of Work
In North Somerset/the City of Bristol
Work No.1A	A two-way guided busway 753 metres in length, together with an adjoining emergency and maintenance track, commencing at the Long Ashton Park and Ride site access road, running south-east across Longmoor Brook and then skirting the site of the proposed Ashton Vale football stadium, turning north-eastwards and running parallel to Colliter’s Brook before crossing from the west to the east side of Colliter’s Brook and terminating 50 metres north-east of the northern end of Silbury Road. This work includes new bridge works over Longmoor Brook and Colliter’s Brook on which the busway will be carried and modifications to the Park and Ride site and access road.
Work No.1B	A two-way guided busway 502 metres in length, together with an adjoining emergency and maintenance track, commencing at the Long Ashton Park and Ride site access road and running south-east, crossing Longmoor Brook, continuing east across Ashton Fields and crossing Colliter’s Brook before terminating 50 metres north-east of the northern end of Silbury Road. This work includes new bridge works over Longmoor Brook and Colliter’s Brook on which the busway will be carried and modifications to the Park and Ride site and access road.
In the City of Bristol
Work No.2	A two-way guided busway 847 metres in length commencing at the termination of Works Nos. 1A and 1B and running north-east, parallel to Colliter’s Brook before turning north-west, crossing Colliter’s Brook and following the line of the Portbury freight railway, crossing from the west to the east side of the railway around the Ashton Junction level crossing, passing under Ashton Road and terminating at the Winterstoke Underpass, together with an adjoining emergency and maintenance track commencing at the termination of Work Nos. 1A and 1B and terminating at a point where the busway crosses over Colliter’s Brook. This work includes new bridge works over Colliter’s Brook and over the Portbury freight railway on which the busway will be carried and associated realignments of the highway at Winterstoke Road and Ashton Vale Road.
Work No.3	A two-way guided busway 890 metres in length, commencing at the termination of Work No. 2 and running north-east along a disused railway corridor, passing under Brunel Way, crossing Ashton Avenue bridge in single track configuration, turning east and rounding the A Bond building before terminating at a point opposite number 20 Avon Crescent, together with an adjoining emergency and maintenance track commencing at the termination of Work No. 2 and terminating at Ashton Avenue Bridge. This work includes new bridge works to strengthen and modify Ashton Avenue Bridge on which the busway will be carried.
Work No.4	A realignment of the Bristol Harbour Railway 141 metres in length commencing at a point 40 metres west of the termination of Work no. 3 and running on-street east along the New Cut for 141 metres.
Work No.5	A one-way (towards the city centre) guided busway and a realignment of the Bristol Harbour Railway 1280 metres in length commencing at the termination of Work No. 3 and running east between Cumberland Road and the New Cut, passing under Cumberland Road from its south to its north side and terminating at a point adjacent to the western boundary of the “Miranda Guinness” building. This work includes associated modifications to Avon Crescent and Cumberland Road and an adjoining footway and cycleway commencing at a point 80 metres west of the point Work No. 5 passes under Cumberland Road and terminating at the termination of Work No. 5.
Work No.5A	Works to widen the existing “Chocolate Path” (footpath FP 392) and associated strengthening works to the New Cut retaining wall commencing at a point 60 metres east of the commencement of Work No. 4 and extending eastwards along the Chocolate Path for 65 metres.
Work No.6	Works to the Museum of Bristol access road 300 metres in length commencing at the termination of Work No. 5 and terminating 10 metres north of the junction of the Museum of Bristol access road and Wapping Road, including the removal of the existing Bristol Harbour Railway and its relocation commencing at the termination of Work No. 5 and running on-street to a termination point on the north side of the Museum of Bristol access road 163 metres from its junction with Wapping Road, the widening of the carriageway and the provision of new footways together with associated improvements to the junction of the Museum of Bristol access road and Wapping Road.
Work No.7	A single track two-way guided busway and adjoining footway and cycleway together with associated modifications to Wapping Road and Prince Street totalling 100 metres in length commencing at the termination of Work No. 6, passing over Prince Street Bridge and terminating at a point 27 metres north of Prince Street Bridge. This work includes strengthening works to Prince Street Bridge.

Articles 2(1), 5 and 23

SCHEDULE 2 ADDITIONAL LAND WHICH MAY BE ACQUIRED OR USED

(1) Location	(2) Number of land shown on the works and land plans	(3) Purpose for which land may be acquired or used
In North Somerset
Long Ashton Park and Ride	01A/02, 01A/03, 01B/02, 01B/03	Provision of park and ride site and interchange with rapid transit system
Land south-west of Long Ashton Park and Ride	01A/01, 02A/01, 01B/01, 02B/01	Provision of replacement public open space
In the City of Bristol
Land west of the A Bond building	06/15, 06/16	Ecological and habitat protection

Article 7

SCHEDULE 3 STREETS SUBJECT TO ALTERATION OF LAYOUT

Key to Schedule 3

JA	Junction alterations
WS	Widening of street by setting back of kerb line
NS	Narrowing of street by setting forward of kerb line
FA	Footpath alterations

PART 1 HIGHWAYS SUBJECT TO ALTERATION OF LAYOUT

(1) Street subject to alteration of layout	(2) Description of alteration
In the City of Bristol
Winterstoke Road/Ashton Gate Underpass	Narrowing of carriageway between NS1 and NS2 to accommodate guided busway bridge works
Winterstoke Road/Ashton Vale Road	Junction alterations between JA1 and JA2 to accommodate guided busway bridge works
Cumberland Road	Widening of carriageway between WS1 and WS2 to accommodate rapid transit bus lane and stops

PART 2 FOOTPATH SUBJECT TO ALTERATION OF LAYOUT

(1) Footpath subject to alteration of layout	(2) Description of alteration
In the City of Bristol
Footpath No. 392	Widening and realignment between FA1 and FA2

Articles 10 and 11

SCHEDULE 4 STREETS TO BE STOPPED UP AND THE PROVISION OF SUBSTITUTES

Key to Schedule 4

NP	Creation of new footpath
PD	Footpath diversion
PS	Footpath stopping up

PART 1 FOOTPATHS FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

(1) Footpath affected	(2) Extent of stopping up	(3) New footpath to be substituted
In North Somerset/the City of Bristol
Footpath No. 207	Path diversion between PD1 and PD2	New footpath between NP1 and NP2 (Work No. 1B only)
Footpath No. LA12/14	Path diversion between PD3 and PD4	New footpath between NP3 and NP4A (Work No. 1B only)
In the City of Bristol
Footpath No. 424	Path diversion between PD5 and PD6	New footpath between NP5 and NP6 (Work No. 1A only)
In North Somerset
Footpath No. LA12/14	Path diversion between PD3 and PD4	New footpath between NP3 and NP4 (Work No. 1A only)

PART 2 FOOTPATH FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

(1) Footpath to be stopped up	(2) Extent of stopping up
In the City of Bristol
Footpath No. 423	Stop up footpath between PS1 and PS2

PART 3 NEW FOOTPATHS

(1) Area	(2) New Footpath
City of Bristol	Footpath from Ashton Avenue Bridge to Avon Crescent between NP7 and NP8
City of Bristol	Footpath from Ashton Avenue Bridge running behind the A Bond building and along the New Cut to the western end of FP392 between NP9 and NP10

Article 11

SCHEDULE 5 STREETS TO BE TEMPORARILY STOPPED UP

PART 1 HIGHWAYS TO BE TEMPORARILY STOPPED UP

Key to Schedule 5 Part 1

TS	Temporary stopping up of highway

(1) Street affected	(2) Extent of stopping up
In the City of Bristol
Ashton Vale Road	Between TS1 and TS2
Avon Crescent/Cumberland Road	Between TS3 and TS4
Brunel Lock Road	Between TS5 and TS6
McAdam Way	Between TS7 and TS8
Museum of Bristol access road	Between TS9 and TS10
Prince Street Bridge	Between TS11 and TS12

PART 2 FOOTPATHS TO BE TEMPORARILY STOPPED UP

Key to Schedule 5 Part 2

TS	Temporary stopping up of footpath

(1) Footpath Affected	(2) Extent of stopping up
In the City of Bristol
Footpath No. 422	Between TS13 and TS14
Footpath No. 207	Between TS15 and TS16
Footpath No. 392	Between TS17 and TS18
Footpath No. 393	Between TS19 and TS20

Article 26

SCHEDULE 6 MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply with the necessary modifications as respects compensation in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.—(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973(1) has effect subject to the modifications set out in sub-paragraphs (2) and (3).

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 4—

(a) for the words “land is acquired or taken” there are substituted the words “a right over land is purchased”; and

(b) for the words “acquired or taken from him” there are substituted the words “over which the right is exercisable”.

(3) In section 58(1) (determination of material detriment where part of house etc. proposed for compulsory acquisition), as it applies to determinations under section 8 of the 1965 Act as substituted by paragraph 5—

(a) for the word “part” in paragraphs (a) and (b) there are substituted the words “a right over land consisting”;

(b) for the word “severance” there are substituted the words “right over the whole of the house, building or manufactory or of the house and the park or garden”;

(c) for the words “part proposed” there are substituted the words “right proposed”; and

(d) for the words “part is” there are substituted the words “right is”.

Adaptation of the 1965 Act

3.—(1) The 1965 Act has effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are to be read (according to the requirements of the particular context) as referring to, or as including references to—

(a) the right acquired or to be acquired, or

(b) the land over which the right is or is to be exercisable.

(2) Without limitation on the scope of sub-paragraph (1), Part 1 of the 1965 Act applies in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

4.  For section 7 of the 1965 Act (measure of compensation in case of severance) there is substituted the following section—

“7.   In assessing the compensation to be paid by the acquiring authority under this Act regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.

5.  For section 8 of the 1965 Act (other provisions as to divided land) there is substituted the following—

“8.— (1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)—

(a) a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Upper Tribunal (“the tribunal”); and

(b) before the tribunal has determined that question, the tribunal is satisfied that the person has an interest in the whole of the relevant land and is able and willing to sell that interest, and—

(i) where that land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land; or

(ii) where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs,

the Ashton Vale to Temple Meads and Bristol City Centre Rapid Transit Order 2013(2) (“the Order”), in relation to that person, ceases to authorise the purchase of the right and is deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice is deemed to have been served in respect of that interest on such date as the tribunal directs.

(2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section is to be determined by the tribunal.

(3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of 6 weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection affects any other power of the authority to withdraw the notice.”.

6.  The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

(a) section 9(4) (failure by owners to convey);

(b) paragraph 10(3) of Schedule 1 (owners under incapacity);

(c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

(d) paragraphs 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

7.  Section 11 of the 1965 Act (powers of entry) is modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right, it has power, exercisable in the equivalent circumstances and subject to the equivalent conditions, to enter for the purpose of exercising that right (which is deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

8.  Section 20 of the 1965 Act (protection for interests of tenants at will, etc.) applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

9.  Section 22 of the 1965 Act (interests omitted from purchase) is modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

Articles 2(1), 5, 20 and 28

SCHEDULE 7 LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Location	(2) Number of land shown on the works and land plans	(3) Purpose for which temporary possession may be taken		(4) Scheduled work
In the City of Bristol
Land south-east of Long Ashton Park and Ride	02A/03	Flood mitigation works and construction working area		Work No. 1A
Private road, Cala Trading Estate	04A/19, 04B/19	Temporary access to trading estate during construction of works, construction working area		Work No. 2
Private road, Cala Trading Estate	04A/20, 04B/20	Temporary access to trading estate during construction of works		Work No. 2
Barons Close	04A/15, 04B/15	Temporary access to trading estate during construction of works		Work No. 2
Private road and hardstanding, Cala Trading Estate	05/15	Temporary access to trading estate during construction of works		Work No. 2
Ashton Road	05/20, 05/21	Temporary access to trading estate during construction of works		Work No. 2
Portbury freight railway line adjacent to Cala Trading Estate	04A/14, 04B/14, 05/08, 05/12, 05/13	Construction working area		Work No. 2
Land north of Silbury Road	04A/02, 04A/03, 04B/02, 04B/03	Construction working area		Work No. 2
Hardstanding and car park, Cala Trading Estate	04A/29, 04B/29, 05/01, 05/03, 05/05, 05/07	Construction working area		Work No. 2
Land west of South Bristol Trade Park	04A/21, 04A/23, 04B/21, 04B/23	Construction working area		Work No. 2
Ashton Vale Road	05/14	Temporary access to trading estate during construction of works, construction working area		Work No. 2
River Avon (New Cut) and banks adjacent to Ashton Avenue Bridge	06/08, 06/09, 06/12, 06/13	Construction working area		Work No. 3
Avon Crescent	06/20	Access to construction compound		Work Nos. 1 to 7
Land to south of Cumberland Basin	07/01, 07/02, 07/03	Construction compound and access		Work Nos. 1 to 7
Land and buildings at Wapping Wharf site	09/04, 09/05, 09/06, 09/07	Construction compound		Work Nos. 1 to 7
Floating Harbour	09/15, 09/16	Construction working area, temporary pedestrian/cycle crossing		Work No. 7
Land west of Wapping Road	09/17	Construction working area, temporary pedestrian/cycle crossing		Work No. 7
Hardstanding at Merchants Quay	09/18	Construction working area, temporary pedestrian/cycle crossing		Work No. 7
Land west of Mud Dock	09/19	Construction working area, temporary pedestrian/cycle crossing		Work No. 7
Land and premises west of Prince Street	09/20, 09/21	Construction working area, temporary pedestrian/cycle crossing		Work No. 7
In North Somerset
Land south of Long Ashton Park and Ride	01A/10, 02A/02		Flood mitigation works and construction working area		Work No. 1A

Article 40

SCHEDULE 8 TRAFFIC REGULATION

PART 1 STOPPING, WAITING, LOADING OR UNLOADING

(1) No waiting at any time

(1) Nos. on Order plans	(2) Road	(3) Extent	(4) Notes
NW1-NW2	Avon Crescent north-east side	From a point 3 metres north- west of a point in line with the common boundary line of No. 18 and No. 19 Avon Crescent to its junction with Cumberland Road	To maintain vehicular flow
NW2-NW3	Cumberland Road both sides	From its junction with Avon Crescent to a point in line with the common boundary line of No. 81 Cumberland Road and No. 1 Cumberland Court	To maintain vehicular flow and accommodate new bus lane

(2) No loading at any time

(1) Nos. on Order plans	(2) Road	(3) Extent	(4) Notes
NL1-NL2	Avon Crescent north-east side	From a point 3 metres north-west of a point in line with the common boundary line of No. 18 and No. 19 Avon Crescent to a point in line with the south-eastern boundary line of No. 25 Avon Crescent	To maintain vehicular flow
NL2-NL3	Cumberland Road south side	From a point in line with the south-eastern boundary line of No.25 Avon Crescent to a point 41 metres east of a point in line with the common boundary line of No. 121 and No. 122 Cumberland Road	To maintain vehicular flow and accommodate new bus lane

PART 2 VEHICULAR ACCESS

(3) Prohibition of driving

(1) Nos. on Order plans	(2) Road	(3) Extent	(4) Notes
P1-P2	Prince Street	From its junction with The Grove to its junction with Prince Street Bridge	Except buses, pedal cycles, police, ambulance and fire service vehicles
P2-P3	Prince Street Bridge	From its junction with Prince Street to its junction with Wapping Road	Except buses, pedal cycles, police, ambulance and fire service vehicles
P3-P4	Wapping Road	From its junction with Prince Street Bridge to its junction with Merchants Quay	Except buses, pedal cycles, police, ambulance and fire service vehicles

PART 3 BUS AND CYCLE LANES

(4) New bus and cycle lanes

(1) Nos. on Order plans	(2) Road	(3) Extent	(4) Notes
BL1-BL2	Cumberland Road south side	From a point 182 metres west of its junction with Mardyke Ferry Road in a westerly direction for a distance of 214 metres	Westbound bus lane for buses, pedal cycles, taxis, solo motorcycles, police, ambulance and fire service vehicles
BL3-BL4	Cumberland Road south side	From a point 41 metres east of a point in line with the common boundary line of No. 121 and No. 122 Cumberland Road in a westerly direction for a distance of 282 metres	Westbound bus lane for buses, pedal cycles, taxis, solo motorcycles, police, ambulance and fire service vehicles

Articles 9, 10, 33 and 56

SCHEDULE 9 PROVISIONS RELATING TO STATUTORY UNDERTAKERS, ETC.

Apparatus of statutory undertakers, etc., on land acquired

1.—(1) Subject to the following provisions of this paragraph, sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers etc. and power of statutory undertakers, etc. to remove or re-site apparatus) apply in relation to any land acquired under this Order, or which is held by the promoter and is appropriated or used (or about to be used) by it for the purposes of the Order or any connected purpose, and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) have effect accordingly.

(2) In the provisions of the 1990 Act, as applied by sub-paragraph (1), references to the appropriate Minister are references to the Secretary of State.

(3) Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the promoter compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

(4) Sub-paragraph (3) does not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that sub-paragraph, any person who is—

(a) the owner or occupier of premises the drains of which communicated with that sewer; or

(b) the owner of a private sewer which communicated with that sewer,

is entitled to recover from the promoter compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer belonging to that person communicate with any other public sewer or with a private sewage disposal plant.

(5) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, do not have effect in relation to apparatus as respects which paragraph 2, or Part 3 of the 1991 Act, applies.

(6) In this paragraph—

“public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003(3); and

“public utility undertakers” has the same meaning as in the 1980 Act.

Apparatus of statutory undertakers, etc., in stopped up streets

2.—(1) Where a street is stopped up under article 10 (construction of new and stopping up of existing streets) any statutory utility whose apparatus is under, in, upon, over, along or across the street has the same powers and rights in respect of that apparatus, subject to the provisions of this paragraph, as if this Order had not been made.

(2) The promoter must give not less than 28 days’ notice in writing of its intention to stop up any street under article 10 to any statutory utility whose apparatus is under, in, upon, over, along or across that street.

(3) Where notice under sub-paragraph (2) has been given, any statutory utility whose apparatus is under, in, upon, over, along or across the street may, where reasonably necessary for the efficient operation of the undertaking of the statutory utility and, if reasonably requested so to do by the promoter, must—

(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the statutory utility may reasonably determine and have power to place it; or

(b) provide other apparatus in substitution for the existing apparatus and place it in that other position.

(4) Subject to the following provisions of this paragraph, the promoter must pay to any statutory utility an amount equal to the cost reasonably incurred by the statutory utility in or in connection with—

(a) the execution of relocation works reasonably required in consequence of the stopping up of the street; and

(b) the doing of any other work or thing rendered reasonably necessary by the execution of relocation works.

(5) If in the course of the execution of relocation works under sub-paragraph (3)—

(a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions except where this has been solely due to using the nearest available type, capacity or dimension; or

(b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the promoter, or, in default of agreement, is not determined by arbitration to be necessary in consequence of the construction of the relocation works in order to ensure the continued efficient operation of the undertaking of the statutory utility, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the statutory utility by virtue of sub-paragraph (4) is to be reduced by the amount of that excess.

(6) For the purposes of sub-paragraph (5)—

(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended provides more than an equivalent service; and

(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

(7) An amount which apart from this sub-paragraph would be payable to a statutory utility in respect of works by virtue of sub-paragraph (4) (and having regard, where relevant, to sub-paragraph (5)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the statutory utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit as calculated in accordance with the Code of Practice entitled “Measures Necessary where Apparatus is Affected by Major Works (Diversionary Works)” and dated June 1992 and approved by the Secretary of State on 30th June, 1992, as revised and re-issued from time to time.

(8) Sub-paragraphs (4) to (7) do not apply where the authorised works constitute major transport works for the purposes of Part 3 of the 1991 Act, but instead—

(a) the allowable costs of the relocation works are to be determined in accordance with section 85 of that Act (sharing of costs of necessary measures) and any regulations for the time being having effect under that section; and

(b) the allowable costs are to be borne by the promoter and the statutory utility in such proportions as may be prescribed by any such regulations.

(9) In this paragraph—

“apparatus” has the same meaning as in Part 3 of the 1991 Act;

“relocation works” means works executed, or apparatus provided, under sub-paragraph (3); and

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or a public communications provider as defined in paragraph 1(6).

Railway, navigation and tramway undertakings

3.—(1) Subject to the following provisions of this paragraph, the powers under article 9 (power to execute street works) to break up or open a street are not exercisable where the street, not being a highway maintainable at public expense (within the meaning of the 1980 Act)—

(a) is under the control or management of, or is maintainable by, railway or tramway undertakers or a navigation authority; or

(b) forms part of a level crossing belonging to any such undertakers or to such an authority or to any other person,

except with the consent of the undertakers or authority, as the case may be, of the person to whom the level crossing belongs.

(2) Sub-paragraph (1) does not apply to the carrying out under this Order of emergency works, within the meaning of Part 3 of the 1991 Act.

(3) A consent given for the purpose of sub-paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but must not be unreasonably withheld.

(4) In this paragraph “navigation authority” means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary, harbour or dock.

Article 59

SCHEDULE 10 FOR PROTECTION OF ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

Interpretation

1.  In this Schedule—

“apparatus” means—

(a)

in the case of a specified undertaker which is an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989) belonging to, or maintained by, that undertaker;

(b)

in the case of a specified undertaker which is a gas undertaker, mains, pipes or other apparatus belonging to, or maintained by, a gas transporter within the meaning of Part 1 of the Gas Act 1986(4) for the purposes of the transportation and storage of gas;

(c)

in the case of a specified undertaker which is a water undertaker, mains, pipes or other apparatus belonging to, or maintained by, the undertaker for the purposes of water supply;

(d)

in the case of a specified undertaker which is a sewerage undertaker—

(i)

any drain or works vested in the undertaker under the Water Industry Act 1991(5); and

(ii)

any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act,

and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works,

and includes any structure in which apparatus is, or is to be, lodged or which gives, or will give, access to such apparatus;

“construction” includes execution, placing, altering, replacing, relaying and removal and, in its application to works which include or comprise any operation, means the carrying out of that operation;

“emergency works” has the same meaning as in section 52 of the 1991 Act;

“in”, in a context referring to apparatus in land, includes under, over, across, along or upon land;

“necessary alternative apparatus” means alternative apparatus adequate to enable a specified undertaker to fulfil its statutory or licensed functions in a manner no less efficient than previously;

“plans” includes sections, specifications and method statements;

“specified undertaker” means—

(a)

Bristol Water plc (company registration number 02662226), whose registered office is P.O. BOX 218, Bridgwater Road, Bristol, BS99 7AU;

(b)

Wessex Water Services Limited (company registration number 02366648), whose registered office is Wessex Water Operations Centre, Claverton Down Road, Claverton Down, Bath, BA2 7WW; and

(c)

Western Power Distribution (South West) plc (company registration number 02366894) whose registered office is Avonbank, Feeder Road, Bristol, Avon, BS2 0TB,

or any person succeeding any such company as a licence holder within the meaning of Part 1 of the Electricity Act 1989, a gas transporter within the meaning of Part 1 of the Gas Act 1986, a water undertaker within the meaning of the Water Industry Act 1991 or as a sewerage undertaker within the meaning of Part I of that Act, and “the specified undertaker” in relation to any apparatus means the specified undertaker to whom the apparatus belongs or by whom it is maintained; and

“specified work” means any of the authorised works which—

(a)

will or may be situated over or within 15 metres measured in any direction of, or may in any way adversely affect, any apparatus; or

(b)

wherever situated, imposes any load upon any sewer, the removal of which has not yet been required under paragraph 8.

Application of Schedule 9

2.  Paragraphs 1(1) and 2 of Schedule 9 (provisions relating to statutory undertakers, etc.) do not apply in relation to a specified undertaker and paragraphs 1(3) and 1(4) of that Schedule have effect as if they referred to apparatus removed under this Schedule.

Apparatus in stopped up streets

3.  Where any street is stopped up under article 10 (construction of new and stopping up of existing streets), any specified undertaker whose apparatus is in the street has the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up, but nothing in this paragraph affects any right of the promoter or of the specified undertaker to require the removal of that apparatus under paragraph 8 or the power of the promoter to carry out works under paragraphs 20 to 29.

4.  The promoter must give not less than 28 days’ notice in writing of its intention to stop up any street under article 10 to any specified undertaker whose apparatus is in that street.

On-street apparatus

5.  This Schedule does not apply to anything done or proposed to be done in relation to or affecting any apparatus in so far as the relations between the promoter and the specified undertaker are regulated by the provisions of Part 3 of the 1991 Act.

Acquisition of land

6.  The promoter must not acquire any apparatus from a specified undertaker pursuant to this Order otherwise than by agreement, which must not be unreasonably withheld.

7.  The promoter may in exercise of the powers conferred by this Order acquire or appropriate any land in which any apparatus is placed and, following the removal of such apparatus in accordance with the provisions of this Schedule, any rights in that land relating to that apparatus are extinguished but no apparatus is to be removed nor is any right of the specified undertaker to use, maintain or renew any apparatus to be extinguished until any necessary alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the specified undertaker.

Removal of apparatus

8.  Paragraphs 9 to 12 apply where—

(a) the promoter requires the removal of any apparatus for the purpose of constructing any of the authorised works and gives to the specified undertaker not less than 56 days’ written notice of that requirement together with a plan of the proposed work and of the proposed position of the alternative apparatus to be provided or constructed; or

(b) in consequence of the exercise or proposed exercise of any of the powers conferred by this Order, the specified undertaker reasonably requires to remove any apparatus.

9.  The promoter must, if it is practicable to do so, afford to the specified undertaker the necessary rights and facilities for the construction of any necessary alternative apparatus in other land which is available for the purpose and which is held or used, or intended for use, by the promoter for the purpose of its undertaking under this Order or in which it has sufficient rights or interests and thereafter for the use, maintenance and renewal of such apparatus and, if the promoter is unable to obtain those rights and facilities, the specified undertaker, on receipt of a written notice to that effect from the promoter, must use its best endeavours to obtain the necessary rights and facilities.

10.  The obligation imposed upon the specified undertaker by paragraph 9 does not extend to the exercise by the specified undertaker of any power to acquire any land or rights in land by a compulsory purchase order.

11.  Any alternative apparatus to be constructed by the specified undertaker under paragraph 9 is to be constructed in such manner, and in such line or situation, as may be agreed between the specified undertaker and the promoter or, in default of agreement, determined by arbitration.

12.  The specified undertaker, after the manner of construction and the line or situation of any necessary alternative apparatus have been agreed or determined and after the grant to or obtaining by the specified undertaker of any such facilities and rights as are referred to in paragraph 9, must proceed without unnecessary delay to construct and bring into operation the alternative apparatus and afterwards to remove any apparatus required by the promoter to be removed in accordance with paragraph 8.

Removal of apparatus and construction of alternative apparatus by the promoter

13.  Paragraphs 14 to 16 apply to so much of the work necessary in connection with the construction of alternative apparatus, or the removal of apparatus required to be removed, as will take place in any land held or used, or intended for use, by the promoter for the purpose of its undertaking.

14.  If the promoter gives notice in writing to the specified undertaker that it desires to carry out any part of any work to which this paragraph applies, such work, instead of being carried out by the specified undertaker, may be carried out by the promoter with the prior written consent of the specified undertaker (which must not be unreasonably withheld and is subject to any such conditions as are reasonable and proper to protect the apparatus) in accordance with plans and in a position agreed between the specified undertaker and the promoter or, in default of agreement, determined by arbitration, without unnecessary delay under the superintendence (if given) and to the reasonable satisfaction of the specified undertaker.

15.  In carrying out any work under paragraph 14 the promoter must comply with all statutory obligations which would have been applicable had the works been carried out by the specified undertaker.

16.  Nothing in paragraph 14 authorises the promoter to carry out the actual placing, erection, installation, bedding, packing, removal, connection or disconnection of any apparatus or, where the apparatus is laid in a trench, execute any filling around the apparatus within 600 millimetres (measured in any direction) of the apparatus.

Facilities and rights for alternative apparatus

17.  Where, in accordance with the provisions of this Schedule, the promoter affords to the specified undertaker facilities and rights for the construction, use, maintenance and renewal in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights may be granted upon such terms and conditions as may be agreed between the promoter and the specified undertaker or, in default of agreement, determined by arbitration.

18.  In determining the terms and conditions mentioned in paragraph 17 in respect of alternative apparatus to be constructed across or along the authorised works the arbitrator must—

(a) give effect to all reasonable requirements of the promoter for ensuring the safety of the authorised works and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any such works; and

(b) so far as it may be reasonable and practicable to do so in the circumstances of the case, give effect to any terms and conditions applicable to the apparatus (if any) constructed across or along the authorised works for which the alternative apparatus is to be substituted and to any other reasonable requirements of the specified undertaker.

19.  If the facilities and rights to be afforded by the promoter in respect of any alternative apparatus under paragraph 17 and the terms and conditions subject to which those facilities and rights are to be granted are, in the opinion of the arbitrator, more or less favourable on the whole to the specified undertaker than the facilities, rights, terms and conditions applying to the apparatus to be removed, the arbitrator must make such provision for the payment of compensation to or by the promoter by or to the specified undertaker in that respect as appears to the arbitrator to be reasonable having regard to all the circumstances of the case.

Retained apparatus: protection and plan approval

20.  Not less than 56 days before commencing to construct or renew any specified work, the promoter must submit to the specified undertaker plans of the works.

21.  In relation to a work which is a specified work because of its proximity to or effect on a sewer, the plans to be submitted to the specified undertaker under paragraph 20 must be detailed plans describing—

(a) the exact position of the specified work;

(b) the level at which it is proposed to be constructed or renewed;

(c) the manner of its construction or renewal;

(d) the position of all sewers within 15 metres of the specified work or upon which the specified work will impose a load; and

(e) by way of detailed drawings, every alteration proposed to be made to any such sewer.

22.  The promoter must not commence the construction or renewal of any specified work to which paragraph 20 applies until the specified undertaker has given written approval of the plans so submitted.

23.  Any approval of the specified undertaker required under paragraph 22—

(a) may be given subject to reasonable conditions for any purpose mentioned in paragraph 24;

(b) must not be unreasonably withheld; and

(c) is deemed to have been given if it is neither given nor refused within 56 days of the submission of plans for approval.

24.  In relation to a work to which paragraph 21 applies, the specified undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its sewerage system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any sewer.

25.  A specified work is to be constructed (and in the case of any temporary work removed) only in accordance with—

(a) the approved plans (and, in the case of plans relating to sewers approved, deemed to have been approved or settled by arbitration, as amended from time to time by agreement between the promoter and the specified undertaker); and

(b) all reasonable requirements made by the specified undertaker for the alteration, or otherwise for the protection, of the apparatus, or for securing access to it.

and an officer of the specified undertaker is entitled to watch and inspect the carrying out of the work.

26.  If within 42 days after the submission to it of any plans under paragraph 20, in consequence of the works proposed by the promoter the specified undertaker reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, the foregoing provisions of this Schedule have effect as if the removal of such apparatus had been required by the specified undertaker under paragraph 8.

27.  Nothing in paragraph 20 or 26 precludes the promoter from submitting at any time, or from time to time, but in no case less than 28 days before commencing the construction of any specified work, a new plan in place of the plan previously submitted, in which case the provisions of those paragraphs apply to, and in respect of, such new plan except that the reference in paragraph 26 to 42 days is to be treated as a reference to 21 days.

28.  The promoter is not required to comply with paragraph 20 in a case where it is necessary to carry out emergency works but, in such a case, it must give to the specified undertaker notice as soon as reasonably practicable, and a plan of the works as soon as reasonably practicable afterwards, and must comply with paragraph 25 so far as reasonably practicable in the circumstances.

29.  Nothing in paragraph 28 entitles the promoter to carry out works to any apparatus but, upon receipt of notice from the promoter, the specified undertaker must proceed to carry out such works as may be required without unnecessary delay.

Co-operation

30.  Where in consequence of the proposed construction of any of the authorised works, the promoter or a specified undertaker requires the removal of apparatus under paragraph 8 or a specified undertaker makes requirements for the protection or alteration of apparatus under paragraph 25, the promoter must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and each specified undertaker must use its best endeavours to co-operate with the promoter for that purpose.

Access

31.  If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed the promoter must provide such alternative means of access to such apparatus as will enable the specified undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

Expenses

32.  Subject to the provisions of the following paragraphs of this Schedule, the promoter must repay to the specified undertaker the reasonable expenses incurred by the specified undertaker in, or in connection with—

(a) the inspection, removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus under any provision of this Schedule (including any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or exercise of statutory powers for such apparatus);

(b) the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus in consequence of the exercise by the promoter of any power under this Order;

(c) the survey of any land, apparatus or works; the inspection and monitoring of works; or the installation or removal of any temporary works reasonably necessary in consequence of the exercise by the promoter of any power under this Order; and

(d) any other work or thing rendered reasonably necessary in consequence of the exercise by the promoter of any such power;

within a reasonable time of being notified by the specified undertaker that it has incurred such expenses.

33.  The value of any apparatus removed under the provisions of this Schedule is to be deducted from any sum payable under paragraph 32, that value being calculated after removal.

34.  If in accordance with the provisions of this Schedule—

(a) alternative apparatus of better type, or greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, except where this has been solely due to using the nearest currently available type; or

(b) apparatus (whether existing apparatus or alternative apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated,

and the placing of apparatus of that type or capacity or of those dimensions, or the placing of apparatus at that depth, as the case may be, is not agreed by the promoter or, in default of agreement, is not determined by arbitration to be necessary having regard, among other things, to the nature of the authorised works, then, if such placing involves cost in the construction of works under paragraphs 9 to 12 exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this paragraph would be payable to the specified undertaker by virtue of paragraph 32 is to be reduced by the amount of that excess.

35.  For the purposes of paragraph 34—

(a) an extension of apparatus to a length greater than the length of existing apparatus must not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended serves a purpose (either additional to or instead of that served by the existing apparatus) which was not served by the existing apparatus; and

(b) where the provision of a joint in a pipe or cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.

36.  An amount which apart from this paragraph would be payable to the specified undertaker in respect of works by virtue of paragraphs 32 to 35 must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the specified undertaker any financial benefit by deferment of the time for renewal of the apparatus or of the system of which it forms part in the ordinary course, be reduced by the amount which represents that benefit as calculated in accordance with the Code of Practice entitled “Measures Necessary where Apparatus is Affected by Major Works (Diversionary Works)” and dated June 1992 and approved by the Secretary of State on 30th June 1992, as revised and re-issued from time to time.

37.  In any case where work is carried out by the promoter under paragraphs 14 to 16 and, if such work had been carried out by the specified undertaker, the repayment made to the specified undertaker under paragraph 32 would fall to be reduced in accordance with paragraphs 34 to 36, the specified undertaker must pay to the promoter such sum as represents the amount of that reduction.

Indemnity

38.  If, by reason or in consequence of the construction, maintenance or failure of any of the authorised works, including any works carried out by the promoter in accordance with paragraph 14 or protective works required by a condition imposed under paragraph 23(a) or required under paragraph 25(b), or any subsidence resulting from any of those works, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or other property of the specified undertaker, or there is any interruption in any service provided by the specified undertaker, the promoter must repay the cost reasonably incurred by the specified undertaker in making good such damage, or restoring the supply, and must—

(a) make reasonable compensation to the specified undertaker for any loss sustained by it; and

(b) indemnify the specified undertaker against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from, or incurred by, the specified undertaker,

by reason or in consequence of any such damage or interruption; and the fact that any act or thing may have been done by the specified undertaker on behalf of the promoter or in accordance with plans approved by the specified undertaker or in accordance with any requirement of the specified undertaker or under its supervision does not, subject to paragraph 39, excuse the promoter from any liability under the provisions of this paragraph.

39.  Nothing in paragraph 38 imposes any liability on the promoter with respect to any damage or interruption to the extent that such damage or interruption is attributable to the neglect or default of the specified undertaker, its officers, servants, contractors or other agents.

40.  The specified undertaker must give to the promoter reasonable notice of any claim or demand under the provisions of paragraph 38 and no settlement or compromise of it is to be made without the prior consent of the promoter which must not be unreasonably withheld.

Exercise of safeguarding and survey powers

41.  The promoter, so far as is reasonably practicable, must exercise the powers conferred by article 18 (safeguarding works to buildings) so as not to obstruct or render less convenient the access to any apparatus.

42.  The promoter must not, in the exercise of the powers conferred by section 11(3) (powers of entry) of the 1965 Act, as applied by this Order, or by article 20 (power to survey and investigate land, etc.), make any trial holes which interfere with any apparatus without the consent of the specified undertaker (which must not be unreasonably withheld).

Arbitration

43.  Any difference arising between the promoter and a specified undertaker under this Schedule (other than a difference as to its meaning or construction) is to be determined by arbitration in the manner provided by article 67 (arbitration) and in determining any difference under this Schedule the arbitrator may, if the arbitrator thinks fit, require the promoter to execute any temporary or other works so as to avoid, so far as may be reasonably possible, interference with the use of any apparatus.

Transfer of functions

44.  The promoter must give notice to every specified undertaker if any of the functions of the promoter under this Order are transferred to another person in accordance with article 45 (powers of disposal, agreements for operation, etc.) and any such notice must be given within 14 days of any such transfer becoming effective and must describe or give (as appropriate)—

(a) the nature of the functions to be transferred;

(b) the extent of that transfer;

(c) the geographical area to which the transfer relates;

(d) the name and address of the transferee; and

(e) the effective date of the transfer.

45.  The obligation to give notice under paragraph 44 to a successor in title to a specified undertaker named in paragraph 1 only applies to the extent that the promoter has been informed by notice in writing by that named undertaker, or by a successor in title to that named undertaker, as the case may be, of the name and address of that successor in title.

Notices

46.  Any notice in writing to be given by the promoter to a specified undertaker under this Schedule is to be deemed effectively given if sent by recorded delivery or by registered letter addressed to the registered office of that specified undertaker.

Article 60

SCHEDULE 11 FOR PROTECTION OF RAILWAY INTERESTS

1.  The following provisions of this Schedule have effect, unless otherwise agreed in writing between the promoter and Network Rail and, in the case of paragraph 15, any other person on whom rights or obligations are conferred by that paragraph.

2.  In this Schedule—

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;

“the engineer” means an engineer appointed by Network Rail for the purposes of this Order;

“network licence” means the network licence, as amended from time to time, granted to Network Rail by the Secretary of State in exercise of powers under section 8 of the Railways Act l993(6);

“Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 1159 of the Companies Act 2006(7) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“plans” includes sections, designs, design data, software, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

“railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

“railway property” means any railway belonging to Network Rail and

(a)

any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and

(b)

any easement or other property interest held or used by Network Rail for the purposes of such railway or works, apparatus or equipment; and

“specified work” means so much of any of the authorised works as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.

3.—(1) Where under this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval must not be unreasonably withheld or delayed and is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

(2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail must—

(a) co-operate with the promoter with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

(b) use its reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised works under this Order.

4.—(1) The promoter must not exercise the powers conferred by article 20 (power to survey and to investigate land, etc.) or the powers conferred by section 11(3) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.

(2) The promoter must not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail.

(3) The promoter must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, as applied by Schedule 9 (provisions relating to statutory undertakers, etc.) to this Order, in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.

(4) The promoter must not under the powers conferred by this Order acquire or use or acquire new rights over any railway property except with the consent of Network Rail.

(5) Where Network Rail is asked to give its consent under this paragraph, such consent must not be unreasonably withheld but may be given subject to reasonable conditions.

5.—(1) The promoter must before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work must not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.

(2) The approval of the engineer under sub-paragraph (1) must not be unreasonably withheld, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail the engineer has not intimated his disapproval of those plans and the grounds of disapproval the promoter may serve upon the engineer written notice requiring the engineer to intimate approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from the promoter. If by the expiry of the further 28 days the engineer has not intimated approval or disapproval, the engineer is deemed to have approved the plans as submitted.

(3) If by the end of the period of 28 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2), Network Rail gives notice to the promoter that Network Rail desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the promoter desires such part of the specified work to be constructed, Network Rail must construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the promoter in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the promoter.

(4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail or the services of operators using the same (including any relocation de-commissioning and removal of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes are to be constructed by Network Rail or by the promoter, if Network Rail so desires, and such protective works are to be carried out at the expense of the promoter in either case without unnecessary delay and the promoter must not commence the construction of the specified works until the engineer has notified the promoter that the protective works have been completed to the engineer’s reasonable satisfaction.

6.—(1) Any specified work and any protective works to be constructed by virtue of paragraph 5(4) must, when commenced, be constructed—

(a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;

(b) under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

(c) in such manner as to cause as little damage as is possible to railway property; and

(d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail or the traffic on it and the use by passengers of railway property.

(2) If any damage to railway property or any such interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the promoter must, regardless of any such approval, make good such damage and pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(3) Nothing in this Schedule imposes any liability on the promoter with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the promoter or its servants, contractors or agents.

7.  The promoter must—

(a) at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and

(b) supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.

8.  Network Rail must at all times afford reasonable facilities to the promoter and its agents for access to any works carried out by Network Rail under this Schedule during their construction and must supply the promoter with such information as it may reasonably require with regard to such works or the method of constructing them.

9.—(1) If any permanent or temporary alterations or additions to railway property are reasonably necessary in consequence of the construction of a specified work, or during a period of 24 months after the completion of that work in order to ensure the safety of railway property or the continued safe operation of the railway of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the promoter reasonable notice of its intention to carry out such alterations or additions (which must be specified in the notice), the promoter must pay to Network Rail the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If during the construction of a specified work by the promoter, Network Rail gives notice to the promoter that Network Rail desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail then, if the promoter decides that part of the specified work is to be constructed, Network Rail is to assume construction of that part of the specified work and the promoter must, regardless of any such approval of a specified work under paragraph 5(3), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.

(3) The engineer must, in respect of the capitalised sums referred to in this paragraph and paragraph 10(a) provide such details of the formula by which those sums have been calculated as the promoter may reasonably require.

(4) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving is to be set off against any sum payable by the promoter to Network Rail under this paragraph.

10.  The promoter must repay to Network Rail all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail—

(a) in constructing any part of a specified work on behalf of the promoter as provided by paragraph 5(3) or in constructing any protective works under the provisions of paragraph 5(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b) in respect of the approval by the engineer of plans submitted by the promoter and the supervision by the engineer of the construction of a specified work;

(c) in respect of the employment or procurement of the services of any inspectors, signallers, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

(d) in respect of any special traffic working resulting from any speed restrictions which may in the reasonable opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution or diversion of services which may be reasonably necessary for the same reason; and

(e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

11.—(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail apparatus generated by the operation of the authorised works where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised works) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph applies to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the authorised works giving rise to EMI (unless the promoter has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), the promoter must in the design and construction of the authorised works take all measures necessary to prevent EMI and must establish with Network Rail (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate the promoter’s compliance with sub-paragraph (3)—

(a) the promoter must consult with Network Rail as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and must continue to consult with Network Rail (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b) Network Rail must make available to the promoter all information in the possession of Network Rail reasonably requested by the promoter in respect of Network Rail’s apparatus identified under sub-paragraph (a); and

(c) Network Rail must allow the promoter reasonable facilities for the inspection of Network Rail’s apparatus identified under sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail must not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution may be selected in the reasonable discretion of Network Rail, and in relation to such modifications paragraph 5(1) has effect subject to this sub-paragraph.

(6) If at any time prior to the commencement of regular revenue-earning operations on the busway comprised in the authorised works and regardless of any measures adopted under sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then the promoter must immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) cease to use (or procure the cessation of use of) the promoter’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

(7) In the event of EMI having occurred—

(a) the promoter must afford reasonable facilities to Network Rail for access to the promoter’s apparatus in the investigation of such EMI;

(b) Network Rail must afford reasonable facilities to the promoter for access to Network Rail’s apparatus in the investigation of such EMI; and

(c) Network Rail must make available to the promoter any additional material information in its possession reasonably requested by the promoter in respect of Network Rail’s apparatus or such EMI.

(8) Where Network Rail approves modifications to Network Rail’s apparatus under sub-paragraphs (5) or (6)—

(a) Network Rail must allow the promoter reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and

(b) any modifications to Network Rail’s apparatus approved under those sub-paragraphs must be carried out and completed by the promoter in accordance with paragraph 6.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) is to apply to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph 10(a) any modifications to Network Rail’s apparatus under this paragraph are deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in 67 (arbitration) to the Institution of Civil Engineers is to be read as a reference to the Institution of Electrical Engineers.

12.  If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the promoter informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the promoter must, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

13.  The promoter must not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail unless it has first consulted Network Rail and it must comply with Network Rail’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

14.  Any additional expenses which Network Rail may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work, provided that 56 days’ previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the promoter, must be repaid by the promoter to Network Rail.

15.—(1) The promoter must pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by Network Rail—

(a) by reason of the construction or maintenance of a specified work or the failure of such a work; or

(b) by reason of any act or omission of the promoter or of any person in its employ or of its contractors or others whilst engaged upon a specified work,

and the promoter must indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission; and the fact that any act or thing may have been done by Network Rail on behalf of the promoter or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision does not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the promoter from any liability under the provisions of this sub-paragraph.

(2) Network Rail must give the promoter reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand is to be made without the prior consent of the promoter.

(3) The sums payable by the promoter under sub-paragraph (1) may include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail the relevant costs, in the event of default, is enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub paragraph (4).

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.

16.  Network Rail must, on receipt of a request from the promoter, from time to time provide the promoter free of charge with written estimates of the costs, charges, expenses and other liabilities for which the promoter is or will become liable under this Schedule (including the amount of the relevant costs mentioned in paragraph 15) and with such information as may reasonably enable the promoter to assess the reasonableness of any such estimate or claim made or to be made under this Schedule (including any claim relating to those relevant costs).

17.  In the assessment of any sums payable to Network Rail under this Schedule there must not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the promoter under this Schedule or increasing the sums so payable.

18.  The promoter and Network Rail may, subject in the case of Network Rail to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the promoter of—

(a) any railway property shown on the works and land plans and described in the book of reference;

(b) any lands, works or other property held in connection with any such railway property; and

(c) any rights and obligations (whether or not statutory) of Network Rail relating to any railway property or any lands, works or other property referred to in this paragraph.

19.  Nothing in this Order, or in any enactment incorporated with or applied by this Order, prejudices or affects the operation of Part I of the Railways Act 1993.

20.  The promoter must no later than 28 days from the date that the plans submitted to the Secretary of State in accordance with article 64 (Certification of plans, etc.) are certified by the Secretary of State, provide a set of those plans to Network Rail in the form of a computer disc with read only memory.

(1)

1973 c. 26.

(2)

S.I. 2013/[        ]

(3)

2003 c. 21.

(4)

1986 c. 44. A new section 7 was substituted by section 5 of the Gas Act 1995, c. 45, and was further amended by section 76 of the Utilities Act 2000, c. 27.

(5)

1991 c. 56.

(6)

1993 c. 43.

(7)

2006 c. 46.