The Network Rail (Closure of Abbots Ripton Level Crossing) Order 2017

PART 1 PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Network Rail (Closure of Abbots Ripton Level Crossing) Order 2017 and comes into force on 8th December 2017.

Interpretation

2.—(1) In this Order—

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

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

“the 1980 Act” means the Highways Act 1980(3);

“the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981(4);

“the 1991 Act” means the New Roads and Street Works Act 1991(5);

“the Abbots Ripton Level Crossing” is the crossing of the East Coast Main Line railway on the level south west of the village of Abbots Ripton in the district of Huntingdonshire, in the County of Cambridgeshire, which has the status of a bridleway;

“address” includes any number or address used for the purposes of electronic transmission;

“the authorised works” means the works authorised by this Order in accordance with article 4 (power to construct and maintain works);

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

“bridleway” has the same meaning as in the 1980 Act;

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

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

“electronic transmission” means a communication transmitted—

(a)

by means of an electronic communications network; or

(b)

by other means but while in electronic form;

“highway authority” has the same meaning as in the 1980 Act;

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

“Network Rail” means Network Rail Infrastructure Limited (company No. 02904587) whose registered office is at 1 Eversholt Street, London NW1 2DN;

“new public right of way” means the new bridleway between points C, D, E, F, G and H shown on the deposited plan;

“the Order limits” means the limits of land to be acquired or used shown on the deposited plan;

“owner”, in relation to land, has the same meaning as in section 7 (interpretation) of the Acquisition of Land Act 1981(6);

“the tribunal” means the Lands Chamber of the Upper Tribunal; and

“the undertaking” means the railway undertaking of Network Rail as existing from time to time.

(2) References in this Order to points identified by letters and numbers are construed as references to a point so shown on the deposited plan.

Dis-application of legislative provisions

3.—(1) Section 6 of the Great Northern Railway Act 1898(7) (power to cross certain roads on the level) is disapplied in relation to the public road in plots 22 and 24 in the parish of Abbots Ripton with Werrington as shown on the deposited plan for that Act.

(2) The following provisions do not apply in relation to any works executed under the powers conferred by this Order—

(a) section 23 (prohibition on obstacles etc. in watercourses) of the Land Drainage Act 1991(8); and

(b) the provisions of any byelaws made under, or having effect as if made under, section 66 (powers to make byelaws) of that Act, which require consent or approval for the carrying out of the works.

PART 2 CROSSINGS

Power to construct and maintain works

4.—(1) Network Rail may construct and maintain within the Order limits such works as are required:—

(a) in connection with the extinguishment of the right of way specified in paragraph (2) of article 5 (closure of level crossing);

(b) to provide the new public right of way;

including the provision of a culvert and any fencing, stiles, gates, signs or other conveniences as may be necessary or expedient for the purposes of the provision or extinguishment of the rights of way.

Closure of level crossing

5.—(1) Subject to paragraph (3), the Abbots Ripton level crossing is stopped-up and discontinued.

(2) Subject to paragraph (3), upon the stopping up and discontinuance of the Abbots Ripton level crossing any rights of way over the crossing are extinguished between points A and B as shown on the deposited plans.

(3) Paragraphs (1) and (2) are not to have effect until the new public right of way has been provided and completed, in accordance with article 6 (creation and maintenance of new public rights of way) and is open to use.

(4) Any person who suffers loss by the extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(5) This article does not apply so as to extinguish the rights of statutory undertakers to maintain their apparatus.

Creation and maintenance of new public rights of way

6.—(1) The new public right of way is to be completed to the reasonable satisfaction of the highway authority and is to be maintained by and at the expense of Network Rail for a period of 12 months from its completion and after the expiry of that period by and at the expense of the highway authority.

(2) Section 28 (compensation for loss caused by public path creation order) of the 1980 Act is to apply to the new public right of way as if the right of way had been created by a public path creation order.

(3) In its application by virtue of paragraph (2), section 28 of the 1980 Act is to have effect with the following modifications:—

(a) In sub-section (1), substitute the words “Network Rail” for the words “the authority by whom the Order was made”;

(b) For sub-section (2), substitute—

“(2) A claim for compensation under this section is to be made to Network Rail in writing within 6 months from the coming into force of the Network Rail (Closure of Abbots Ripton Level Crossing) Order 2017(9) and is to be served on Network Rail by delivering it at, or by sending it by pre-paid post to the registered office of Network Rail Infrastructure Limited”; and

(c) Sub-section (3) is omitted.

(4) Sub-section (3) of section 307 (disputes as to compensation which are to be determined by Lands Tribunal and related provisions) of the 1980 Act, in its application to section 28 by virtue of sub-section (1), is to have effect as if in sub-section (2) for the words “the authority from whom the compensation in question is claimed”, the words “Network Rail” are substituted.

(5) In any action against Network Rail in respect of loss or damage resulting from any failure by it to maintain the new public right of way, it is a defence (without affecting any other defence or the application of the law relating to contributory negligence) to prove that Network Rail had taken such care as in all the circumstances was reasonably required to secure that the part of the new public right of way to which the action relates was not dangerous to traffic.

(6) For the purposes of a defence under paragraph (5), the court must in particular have regard to the following matters—

(a) the character of the new public right of way and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a public right of way of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the new public right of way;

(d) whether Network Rail knew, or could reasonably have been expected to know, that the condition of the part of the new public right of way to which the action relates was likely to cause danger to users of the new public right of way;

(e) where Network Rail could not reasonably have been expected to repair that part of the new public right of way before the cause of action arose, what warning notices of its condition had been displayed;

but for the purposes of such a defence it is not relevant to prove that Network Rail had arranged for a competent person to carry out or supervise the maintenance of the part of the new public right of way to which the action relates unless it is also proved that Network Rail had given the competent person proper instructions with regard to the maintenance of the new public right of way and that the competent person had carried out those instructions.

(7) The new public right of way is to be treated as completed to the satisfaction of the highway authority for the purpose of paragraph (1) if it fails to reply to a request for certification that it is satisfied with the work within 28 days of receiving the request.

Supplemental Powers

Power to survey and investigate land

7.—(1) Network Rail may for the purposes of this Order—

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

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

(c) without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on such land;

(d) place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes; 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 14 days’ notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of Network Rail—

(a) must, if so required, before or after entering the land produce written evidence of authority to do so including any warrant issued under paragraph (4);

(b) may not use force unless a justice of the peace has issued a warrant under paragraph (4) authorising the person to do so; and

(c) may take onto the land such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) A justice of the peace may issue a warrant authorising a person to use force in the exercise of the power conferred by this article if satisfied—

(a) that another person has prevented or is likely to prevent the exercise of that power; and

(b) that it is reasonable to use force in the exercise of that power.

(5) The force that may be authorised by a warrant is limited to that which is reasonably necessary.

(6) A warrant authorising the person to use force must specify the number of occasions on which Network Rail can rely on the warrant when entering and surveying or valuing land.

(7) The number specified must be the number which the justice of the peace considers appropriate to achieve the purpose for which the entry and survey or valuation are required.

(8) Any evidence in proceedings for a warrant under this article must be given on oath.

(9) No trial holes are to be made under this article—

(a) in a carriageway or footway without the consent of the highway authority; or

(b) in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld.

(10) Network Rail must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(11) If either a highway authority or a street authority which receives an application for consent fails to notify Network Rail of its decision within 28 days of receiving the application for consent—

(a) under paragraph (9)(a) in the case of a highway authority; or

(b) under paragraph (9)(b) in the case of a street authority,

that authority is deemed to have granted consent.

PART 3 ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire new rights

8.—(1) Network Rail may acquire compulsorily, by the creation of a new right or rights, such easements or other rights over the land within the plots shown numbered 2, 3, 4, 5, 6, 7, 8, 9 and 10 on the deposited plan as it may require for the purposes of construction and maintenance of the authorised works.

(2) Part 1 of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, applies to the compulsory acquisition of land under this Order—

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

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

(3) The 1981 Act applies as if this Order were a compulsory purchase order.

(4) In section 6 (notices after execution of general vesting declaration) of the 1981 Act as applied by paragraph (3), for the reference to the invitation under section 15 of, or paragraph 6 of Schedule 1 to, the Acquisition of Land Act 1981, there shall be substituted a reference to the invitation under section 14A(3) of the Transport and Works Act 1992(11).

(5) Schedule 1 has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act and the 1981 Act in their application in relation to the compulsory purchase under this article of a right over land by the creation of a new right.

Temporary possession or use of land

Temporary use of land for construction of works

9.—(1) Network Rail may in connection with the carrying out of the authorised works enter upon and take temporary possession of the land within the Order limits for the purposes of provision of a worksite and access and construction of the authorised works on that land.

(2) Not less than 14 days before entering upon and taking temporary possession of land under this article Network Rail must serve notice of the intended entry on the owners and occupiers of the land.

(3) Network Rail may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the authorised works for the purposes of which temporary possession of that land was taken.

(4) Before giving up possession of land of which temporary possession has been taken under this article, Network Rail must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but Network Rail is not required to replace a building removed in connection with the carrying out of the authorised works or restore the land on which any permanent works have been constructed under paragraph (1).

(5) Network Rail must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined under Part 1 of the 1961 Act.

(7) Without affecting article 14 (no double recovery), nothing in this article affects any liability to pay compensation under section 10(2)(12) (further provision as to compensation for injurious affection) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).

(8) Where Network Rail takes possession of land under this article, it is not required to acquire the land or any interest in it.

(9) Section 13(13) (refusal to give possession to the acquiring authority) of the 1965 Act applies to the temporary use of land under this article.

Supplementary

Time limit for exercise of powers of acquisition

10.  The powers conferred by article 9 (temporary use of land for construction of works) cease at the end of the period of 5 years beginning with the day on which this Order comes into force, except that nothing in this paragraph prevents Network Rail from remaining in possession of land after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART 4 MISCELLANEOUS AND GENERAL

Power to lop trees overhanging the authorised works

11.—(1) Network Rail may fell or lop any tree or shrub near any part of the authorised works, or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

(a) from obstructing or interfering with the construction, maintenance or operation of the authorised works or any apparatus used on the authorised works; or

(b) from constituting a danger to persons using the authorised works.

(2) In exercising the powers of paragraph (1), Network Rail must not cause unnecessary damage to any tree or shrub and must pay compensation to any person for any loss or damage arising from the exercise of those powers.

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of compensation, is to be determined under Part 1 of the 1961 Act.

For protection of lead local flood authority

12.  The provisions of Schedule 2 (protection for lead local flood authority) have effect.

Certification of plans, etc.

13.  Network Rail must, as soon as practicable after the making of this Order, submit copies of the book of reference and the deposited plans to the Secretary of State for certification that they are true copies of, respectively, the book of reference and deposited plans referred to in this Order; and a document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Service of notices

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

(a) by post; or

(b) with the consent of the recipient, and subject to paragraphs (6) to (8), by electronic transmission.

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

(3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978(14) as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

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

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

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

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

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

(5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission, the requirement is taken to be fulfilled where the recipient of the notice or other document to be transmitted has given consent to the use of electronic transmission either in writing or by electronic transmission.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or any part of that notice or other document, the sender must provide such a copy as soon as reasonably practicable.

(7) Any consent to the use of electronic transmission given by a person may be revoked by that person in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

(a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

(b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

(9) This article does not exclude the employment of any method of service not expressly provided for by it.

No double recovery

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

Arbitration

16.  Any difference under any provision of this Order, unless otherwise provided for, must be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

Signed by the authority of the Secretary of State

Natasha Kopala

Head of the Transport and Works Act Orders Unit

Department for Transport

17th November 2017