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The Midland Metro (Birmingham Eastside Extension) Order 2020

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Supplemental powers

Attachment of equipment to buildings

20.  The Authority may affix to any building constructed at any time within the permanent limits—

(a)any brackets, cables, wires, insulators and other apparatus required in connection with the construction, operation or maintenance of the authorised tramway; and

(b)any lamps, cameras, brackets, pipes, electric lines and other apparatus required for the provision of additional or substitute street lighting or closed circuit television in consequence of the construction, operation or maintenance of the authorised tramway.

Discharge of water

21.—(1) The Authority may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction, operation or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, or the limits of deviation in any street along which the authorised tramway is authorised to be laid, make openings into, and connections with, the watercourse, sewer or drain.

(2) Any dispute arising from the exercise of the power conferred by paragraph (1) to connect to or use a public sewer or drain is to be determined as if it were a dispute under section 106 (right to communicate with public sewers) of the Water Industry Act 1991(1).

(3) The Authority must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose but must not be unreasonably withheld.

(4) The Authority must not make any opening into any public sewer or drain except—

(a)in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

(b)where that person has been given the opportunity to supervise the making of the opening.

(5) The Authority must not, in the exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(6) The Authority must take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance, oil or matter in suspension.

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) (requirement for environmental permit) of the Environmental Permitting (England and Wales) Regulations 2016(2).

(8) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board, or a local authority; and

(b)other expressions, excluding watercourses, used both in this article and in the Water Resources Act 1991(3) have the same meaning as in that Act.

Works to safeguard buildings and the operation of the authorised tramway

22.—(1) Subject to the following provisions of this article, the Authority may at its own expense and from time to time carry out such safeguarding works to any building lying within the Order limits or the limits of deviation as the Authority considers to be necessary or expedient.

(2) Safeguarding works may be carried out—

(a)at any time before or during the construction, in the vicinity of the building, of any part of the authorised works (other than works authorised by this article); or

(b)after the completion of the construction of that part of the authorised works (other than works authorised by this article), at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised works is first opened for use.

(3) For the purpose of determining how the functions under this article are to be exercised the Authority may, subject to paragraph (5), enter and survey any building falling within paragraph (1) and any land within its curtilage.

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

(a)enter the building and any land within its curtilage; and

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

(5) Before exercising—

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

(b)a right under paragraph (3) to enter a building and any land within its curtilage;

(c)a right under paragraph (4)(a) to enter a building and land within its curtilage; or

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

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

(6) Where notice is served under paragraph (5)(a), (5)(c) or (5)(d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question of whether it is necessary or expedient to carry out the safeguarding works or to enter the building or land to be referred to arbitration under article 53 (arbitration).

(7) The Authority must compensate the owners and occupiers of any building or land in relation to which the powers conferred by this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8) Where—

(a)safeguarding works are carried out under this article to a building; and

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

the Authority must compensate the owners and occupiers of the building for any damage sustained by them.

(9) Without affecting article 38 (no double recovery), nothing in this article relieves the Authority from any liability to pay compensation under section 10(2)(4) (further provision as to injurious affection) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(11) In this article “safeguarding works”, in relation to a building, means—

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

(b)any works the purpose of which is to remedy any damage which has been caused to the building by the construction, maintenance or operation of the authorised works; and

(c)any works the purpose of which is to secure the safe operation of the authorised tramway or to prevent or minimise the risk of such operation being disrupted.

Power to survey and investigate land, etc.

23.—(1) The Authority may for the purposes of this Order—

(a)survey or investigate any land within the Order limits, the limits of deviation, any street along which the authorised street tramway is authorised to be laid and any street having a junction with such a street;

(b)without limitation on the scope of sub-paragraph (a), make trial holes in such positions as the Authority thinks fit on the land 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 archaeological investigations on any such land;

(d)take steps to protect or remove any flora or fauna on the land where the flora or fauna may be affected by the carrying out of the authorised works;

(e)place on, leave on and remove from the land apparatus for use in connection with the exercise of any of the powers conferred by sub-paragraphs (a) to (d); and

(f)enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (e).

(2) No land may be entered, or equipment placed or left on or removed from the land, under paragraph (1), unless at least 7 days’ notice has been served on every owner and occupier of the land.

(3) Notice given in accordance with paragraph (2) must include a statement of the recipient’s rights under paragraph (9).

(4) If the Authority proposes to do any of the following, the notice must include details of what is proposed—

(a)searching, boring or excavating;

(b)leaving apparatus on the land;

(c)taking samples;

(d)an aerial survey;

(e)carrying out any other activities that may be required to facilitate compliance with the instruments mentioned in paragraph (5).

(5) The instruments referred to in paragraph (4)(e) are—

(a)Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment(5); or

(b)Council Directive 92/42/EEC of 21 May 1992 on the conservation of natural habitats and of flora and fauna(6).

(6) Any person entering land under this article on behalf of the Authority—

(a)must, if so required, before or after entering the land produce written evidence of that person’s authority to do so;

(b)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;

(c)may only enter and survey land at a reasonable time; and

(d)must, if the land is unoccupied or the occupier is absent from the land when the person enters it, leave it as secure against trespassers as when the person entered it.

(7) 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.

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

(a)under paragraph (7)(a) in the case of a highway authority; or

(b)under paragraph (7)(b) in the case of a street authority,

that authority is deemed to have granted consent.

(9) The Authority must pay compensation for any damage occasioned, by the exercise of the powers conferred by this article, to the owners and occupiers of the land, such compensation to be determined, in case of dispute, under Part 1 (determination of questions of disputed compensation) of the 1961 Act.

(10) Paragraphs (1) to (9) apply in relation to Crown land, however a person may only exercise the power conferred under paragraph (1) in relation to Crown land if the person has permission of the appropriate authority.

(11) In this article, “Crown land” and “the appropriate authority” have the meaning given in section 293(7) (preliminary definitions) of the 1990 Act.

(12) Nothing in this article overrides the requirement to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979(8).

Mode of construction and operation of tramway

24.—(1) The authorised tramway must be operated by electricity or, in an emergency or for the purposes of maintenance, by diesel power or other means.

(2) The authorised tramway must be constructed on a nominal gauge of 1,435 millimetres.

(3) Where the authorised tramway is constructed along a street or in any place to which the public has access (including any place to which the public has access only on making a payment), the Authority must take such care as in all the circumstances is reasonable to ensure that the authorised tramway is constructed and maintained so that the street or other place is safe for other users.

(4) When considering what measures are required under paragraph (3) the Authority must have particular regard to the character and usage of the street or other place and to those who could reasonably be expected to use it.

(5) Where the authorised street tramway has been constructed in a street, works by any person which affect or are likely to affect the Authority’s obligations under paragraph (3), including works to any street surfaces and works affecting any equipment or apparatus placed in the street under article 11 (power to keep apparatus in streets) must not be carried out without the consent of the Authority, which may be given subject to such reasonable terms and conditions as the Authority may require but must not be unreasonably withheld.

Obstruction of construction of authorised works

25.  Any person who, without reasonable excuse—

(a)obstructs another person acting under the authority of the Authority in setting out the lines of the scheduled works, or in constructing any of the authorised works; or

(b)interferes with, moves or removes any apparatus belonging to any person acting under the authority of the Authority,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Power to construct temporary tramways

26.—(1) The Authority may, if it considers it necessary or expedient in consequence of any street works executed or proposed to be executed in a street along which an authorised street tramway is constructed—

(a)remove or discontinue the operation of the authorised street tramway; and

(b)lay, maintain and operate in that street or in a street near to that street a temporary tramway in place of the authorised street tramway.

(2) The powers conferred by this article may only be exercised with the consent of the street authority but such consent may not be unreasonably withheld.

(3) The provisions of articles 10(2) (power to alter layout, etc., of streets), 11 (power to keep apparatus in streets), 12 (power to execute street works) and 43 (traffic signs) apply in relation to temporary tramways laid under the powers conferred by this article as they apply in relation to authorised street tramways.

Removal of human remains

27.—(1) In this article, “the specified land” means the land within the Order limits or the limits of deviation.

(2) Before the Authority carries out any development or works that will or may disturb any human remains in the specified land, it must remove those human remains from the specified land, or cause them to be removed, in accordance with the following provisions of this article.

(3) Before any such remains are removed from the specified land, the Authority must give notice of the intended removal, describing the specified land and stating the general effect of the following provisions of this article, by—

(a)publishing a notice once in each of 2 successive weeks in a newspaper circulating in the area of the authorised works; and

(b)displaying a notice in a conspicuous place on or near to the specified land.

(4) As soon as reasonably practicable after the first publication of a notice under paragraph (3), the Authority must send a copy of the notice to Birmingham City Council.

(5) At any time within 56 days after the first publication of a notice under paragraph (3), any person who is a personal representative or relative of any deceased person whose remains are interred in the specified land may give notice in writing to the Authority of that person’s intention to undertake the removal of the remains.

(6) Where a person has given notice under paragraph (5), and the remains in question can be identified, that person may cause such remains to be—

(a)removed and re-interred in any burial ground or cemetery in which burials may legally take place; or

(b)removed to, and cremated in, any crematorium,

and that person must, as soon as reasonably practicable after such re-interment or cremation, provide to the Authority a certificate for the purpose of enabling compliance with paragraph (11).

(7) If the Authority is not satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be, or that the remains in question can be identified, the question must be determined on the application of either party in a summary manner by the county court, and the court may make an order specifying who must remove the remains and as to the payment of the costs of the application.

(8) The Authority must pay the reasonable expenses of removing and re-interring or cremating the remains of any deceased person under this article.

(9) If—

(a)within the period of 56 days referred to in paragraph (5) no notice under that paragraph is given to the Authority in respect of any remains in the specified land;

(b)notice under paragraph (5) is given within the period of 56 days and no application is made under paragraph (7) within 56 days after the giving of the notice, but the person who gave the notice fails to remove the remains within a further period of 56 days;

(c)within 56 days after any order is made by the county court under paragraph (7) any person, other than the Authority, specified in the order fails to remove the remains; or

(d)it is determined that the remains to which a notice under paragraph (5) relates cannot be identified,

subject to paragraph (10), the Authority must remove the remains and cause them to be re-interred in such burial ground or cemetery in which burials may legally take place as the Authority thinks suitable for the purpose; and, so far as possible, remains from individual graves must be re-interred in individual containers which must be identifiable by a record prepared with reference to the original position of burial of the remains that they contain.

(10) If the Authority is satisfied that any person giving notice under paragraph (5) is the personal representative or relative as that person claims to be and that the remains in question can be identified, but that person does not remove the remains, the Authority must comply with any reasonable request that person may make in relation to the removal and re-interment or cremation of the remains.

(11) On the re-interment or cremation of any remains under this article—

(a)a certificate of re-interment or cremation must be sent by the Authority to the Registrar-General giving the date of re-interment or cremation and identifying the place from which the remains were removed and the place in which they were re-interred or cremated; and

(b)a copy of the certificate of re-interment or cremation and the record mentioned in paragraph (9) must be sent by the Authority to Birmingham City Council.

(12) The removal of the remains of any deceased person under this article must be carried out in accordance with any directions that may be given by the Secretary of State.

(13) Any jurisdiction or function conferred on the county court by this article may be exercised by the district judge of the court.

(14) Section 25 of the Burial Act 1857(9) (offence of removal of body from burial ground) does not apply to a removal carried out in accordance with this article.

(15) The Town and Country Planning (Churches, Places of Religious Worship and Burial Ground) Regulations 1950(10) does not apply to the authorised works.

(1)

1991 c. 56. Section 106 was amended by sections 35(1), 35(8) and 43(2) of, and Schedule 2 to, the Competition and Service (Utilities) Act 1992 (c. 43), sections 36(2) and 99 of the Water Act 2003 (c. 37) and paragraph 16(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29).

(4)

Section 10 was amended by section 4 of, and paragraph 13(2) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11) and S.I. 2009/1307.

(5)

OJ No. L 26, 28.1.2012, p.1.

(6)

OJ No. L 206, 22.7.1992, p. 7.

(7)

As amended by paragraph 6 of Schedule 3 to the Planning and Compulsory Purchase Act 2004 (c. 5), paragraph 7(1) and (4) of Schedule 7 to the Planning (Wales) Act 2015 (anaw 4) and paragraphs 1 and 33 of Schedule 12 to the Housing and Planning Act 2016 (c. 22).

(9)

1857 c. 81. Section 25 was substituted by section 2 of Church of England (Miscellaneous Provisions) Measure 2014 (2014 No. 1).

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