The Network Rail (Cambridgeshire Level Crossing Reduction) Order 2020

Article 2

SCHEDULE 1 SCHEDULED WORKS

In the County of Cambridgeshire

District of Fenland, Parish of Whittlesey

Work No. 2 – A footbridge, commencing at a point 15 metres north-west of Wype Road crossing the Ely to Peterborough railway and terminating at a point 10 metres north-east of its commencement.

District of East Cambridgeshire, Parish of Ely

Work No. 3 – A footbridge, commencing at a point 115 metres south-west of Footpath 50 crossing the Ely to King’s Lynn railway and terminating at a point 10 metres north-east of its commencement.

Work No. 4 – A footbridge, commencing at a point 20 metres south-west of Footpath 50 crossing the Ely to King’s Lynn railway and terminating at a point 10 metres north-east of its commencement.

Work No. 5 – A footbridge, commencing at a point 370 metres south of the south-west corner of the Pump House (located in the Parish of Ely) and terminating at a point 20 metres north of its commencement.

District of South Cambridgeshire, Parish of Waterbeach

Work No. 8 – A footbridge, commencing at a point 100 metres north-west of Footpath 18 crossing the Ely to King’s Lynn railway and terminating at a point 10 metres north-east of its commencement.

Work No. 9 – A footbridge, commencing at a point 230 metres north-west of Footpath 18 crossing the Ely to King’s Lynn railway and terminating at a point 10 metres north of its commencement.

Articles 5, 14 and 16

SCHEDULE 2 CLOSURE OF LEVEL CROSSINGS SUBJECT TO OPENING OF NEW HIGHWAY

(1) Area	(2) Extent of level crossing to be stopped up and discontinued	(3) Extent of highway to be extinguished	(4) Status and extent of new highway
County of Cambridgeshire District of Fenland Parish of Whittlesey
	Eastrea Cross Drove between points P005 and P005A	Footpath 50 between points P004, P005, P005A and P006	Footpath between points P006, P007 and P009 and between points P007 and P008
District of East Cambridgeshire Parish of Downham
	Coffue Drove between points P024 and P025	BOAT 44 between points P023, P024, P025 and P026	Byway open to all traffic between points P023, P027 and P026
Parish of Ely	Cross Keys between points P033 and P034	Footpath 50 between points P033, P034 and P035	Footpath between points P038 and P039 and between points P033 and P040
		Footpath not on definitive map between points P033, P037 and P035	Footpath between points P038 and P039 and between points P033 and P040
	Prickwillow 1 between points P054 and P055	Footpath 17 between points P054 and P055	Footpath between points P054 and P056 and between points P057 and P055
	Prickwillow 2 between points P058 and P059	Footpath 57 between points P058 and P059	Footpath between points P058 and P060 and between points P061 and P059
District of South Cambridgeshire Parish of Waterbeach	Chittering between points P101A and P102	Footpath 18 between points P101, P101B, P102B, P103 and P104	Footpath between points P101 and P105
		Footpath not on the definitive map between points P101, P101A, P102 and P103	Footpath between points P101 and P105
District of South Cambridgeshire Parish of Little Wilbraham and District of East Cambridgeshire Parish of Brinkley	Cassells between point P116 and P117	Footpath 1 between points P115, P116 and P117	Footpath between points P118 and P119
		Footpath not on definitive map between points P116 and P122	Footpath between points P118 and P119

Articles 5 and 22

SCHEDULE 3 LAND IN WHICH PRIVATE RIGHTS OF ACCESS MAY BE ACQUIRED

(1) Extent of new private right of way	(2) Land having benefit of new right	(3) Purpose for which new private right may be acquired
Between points P109 and P110 on sheet 31	Land cross-hatched on sheet 31	Vehicular access

Articles 5 and 13

SCHEDULE 4 REDESIGNATION OF HIGHWAYS

(1) Area	(2) Highway	(3) Current designation	(4) Proposed designation
County of Cambridgeshire District of Fenland Parish of March	Silt Road between points P012 and P013	Public Road	Bridleway (subject to the use of vehicular traffic by persons authorised by Network Rail)
District of East Cambridgeshire Parish of Westley Waterless	Westley Bottom Road/BOAT 1 between points P111, P112, P113 and P114	Public Road/Byway Open to All Traffic	Byway Open to All Traffic with width restriction (subject to the use by vehicular traffic by persons authorised by Network Rail)

Articles 5 and 19

SCHEDULE 5 ACQUISITION OF LAND FOR AUTHORISED WORKS

(1) Area	(2) Number of land shown on the deposited plans	(3) Purposes for which land may be acquired
County of Cambridgeshire	01A, 05A	Provision of a turning head
District of East Cambridgeshire
Parish of Burrough Green
Parish of Westley Waterless	01B	Provision of a turning head
District of Fenland Parish of March	16, 17	Provision of a turning head

Articles 5 and 22

SCHEDULE 6 LAND IN WHICH ONLY NEW RIGHTS ETC., MAY BE ACQUIRED

(1) Area	(2) Number of land shown on the deposited plans	(3) Purpose for which rights may be acquired
County of Cambridgeshire District of East Cambridgeshire Parish of Ely	09, 10	Access for construction and maintenance of the authorised works
	12, 13, 14	Access for construction, maintenance of the authorised works and access for removal of level crossing
Parish of Downham	12, 18	Access for maintenance
Parish of Stretham	07, 08	Access for removal of level crossing
District of South Cambridgeshire	01, 08, 20, 22, 24, 32, 33, 34, 35	Access for construction and maintenance of the authorised works
Parish of Waterbeach	45, 47	Access for removal of level crossing and access for maintenance
	37, 38, 39, 40	Access
District of Fenland	18, 19	Access for construction of the authorised works

Article 5, 23 and 31

SCHEDULE 7 LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Area	(2) Number of land shown on the land plans	(3) Purpose for which temporary possession may be taken
County of Cambridgeshire District of East Cambridgeshire Parish of Brinkley	01	Worksite
	03	Access for removal of level crossing
Parish of Burrough Green	01, 05, 06	Worksite and access for removal of level crossing
Parish of Downham	15, 16	Worksite
	12, 18	Worksite and creation of public right of way
District of East Cambridgeshire Parish of Ely	02, 03, 03A, 04, 05, 06, 27, 28, 29, 31, 33, 35, 36, 37	Access for construction of the authorised works and creation of public right of way
	06A	Access for construction of the authorised works, worksite and creation of public right of way
	07, 34, 43, 45, 46A, 47, 49, 50, 51, 53, 54, 56, 79, 80, 81, 82, 83, 88, 89	Worksite
	08, 32, 38, 39	Footbridge
	44, 48, 52, 55, 84	Access for removal of level crossing, worksite and creation of new public right of way
	85, 87	Worksite and creation of new public right of way
District of South Cambridgeshire Parish of Little Wilbraham	01, 07	Worksite
	04	Creation of public right of way
District of East Cambridgeshire Parish of Littleport	18, 21, 22	Worksite
District of Fenland Parish of March	11	Worksite
District of South Cambridgeshire Parish of Waterbeach	21, 23, 30, 31	Access for removal of level crossing
	03, 05, 13, 25, 26, 27, 28, 37A	Worksite
	02, 04, 09, 16	Footbridges
	06, 07, 10, 12, 14, 15, 17	Worksite and access
	11	Worksite and creation of public right of way
	36, 37, 38, 39, 40	Worksite and access for creation of new track for a third party
	45, 47	Access for removal of level crossing
District of Fenland Parish of Whittlesey	31	Access for removal of level crossing
	23, 32, 33, 35, 36, 37, 38, 39, 40, 41	Creation of public right of way
	17, 21	Access for construction of the authorised works and creation of public right of way
	22, 24A, 25	Construction of footbridge
	20, 26	Worksite
	42	Access for removal of level crossing and creation of new public right of way

Article 7

SCHEDULE 8 STREETS SUBJECT TO ALTERATION OF LAYOUT

(1) Area	(2) Street subject to alteration of layout	(3) Description of alteration
County of Cambridgeshire District of East Cambridgeshire Parish of Littleport	Station Road/Lynn Road	Provision of footway

Article 8

SCHEDULE 9 STREETS SUBJECT TO STREET WORKS

(1) Area	(2) Street subject to street works
County of Cambridgeshire District of Fenland	Wype Road
Parish of Whittlesey
Parish of March	Silt Road
District of East Cambridgeshire Parish of Littleport	Black Horse Drove Station Road/Lynn Road
District of East Cambridgeshire	Westley Bottom Road
Parish of Westley Waterless
District of South Cambridgeshire	Brinkley Road
Parish of Little Wilbraham and
District of East Cambridgeshire
Parish of Brinkley

Article 9

SCHEDULE 10 STREETS TO BE PERMANENTLY STOPPED UP

(1) Area	(2) Street to be stopped up permanently	(3) Extent	(4) New highway to be provided
County of Cambridgeshire District of East Cambridgeshire Parish of Ely	Footpath 24	Between points P072, P073, P074 and P075	Footpath between points P072, P076 and P075

Article 10

SCHEDULE 11 STREETS TO BE TEMPORARILY STOPPED UP

(1) Area	(2) Street to be stopped up	(3) Extent of temporary stopping up
County of Cambridgeshire
District of Fenland
Parish of Whittlesey	Wype Road	Within Order limits
	Eastrea Cross Drove	Within Order limits
	Footpath 50	Between points P004, P005, P005A and P006
	BOAT 49	Within Order limits
Parish of March	Silt Road	Within Order limits
District of East Cambridgeshire	BOAT 44	Between points P023, P024, P025 and P026
Parish of Downham	Byway not on definitive map	Between points P023, P027 and P026
Parish of Ely	Footpath 50	Between points T001, P038, P033, P034, P035 and P036
	Footpath not on definitive map	Between points P033, P037, P035 and P036A
Parish of Littleport	Lynn Road / Station Road	Within Order limits
	Black Horse Drove	Within Order limits
Parish of Ely	Footpath 17	Between points P054 and P055
	Footpath 57	Between points P058 and P059
	Padnal Bank	Within Order limits
	Branch Bank	Within Order limits
	Footpath 23	Between points P067, P068, P069 and P070
	Footpath 24	Between points P072, P073, P074 and P075
	Path not on definitive map	Between points P072, P076 and P075
District of South Cambridgeshire	Footpath 18	Between points P101, P101B, P102B and P103
Parish of Waterbeach	Footpath not on the definitive map	Between points P101, P101A, P102, P103 and P104
	Footpath 16	Between points T004 and P104 and within Order limits
	Bannold Drove/BOAT 14	Within Order limits
	Westley Bottom Road	Within Order limits
	BOAT 1	Within Order limits
District of South Cambridgeshire	Brinkley Road	Within Order limits
Parish of Little Wilbraham and District of East Cambridgeshire	Footpath not on definitive map	Between points P116 and P122
Parish of Brinkley
District of East Cambridgeshire Parish of Brinkley	Footpath 1	Between points P115, P116 and P117
District of South Cambridgeshire	Footpath 10	Between points T005, P118, P122 and P117
Parish of Little Wilbraham

Article 12

SCHEDULE 12 ACCESS TO WORKS

(1) Area	(2) Location of Access
County of Cambridgeshire District of East Cambridgeshire Parish of Ely	Access to pumping station off Lynn Road opposite Brick Kiln Farm

Article 34

SCHEDULE 13 APPARATUS AND RIGHTS OF STATUTORY UNDERTAKERS ETC. IN STOPPED UP STREETS

1.—(1) Sections 271 to 274(1) (power to extinguish rights of statutory undertakers etc. and power of statutory undertakers etc. to remove or re-site apparatus) of the 1990 Act apply in relation to any land acquired or appropriated by Network Rail under this Order subject to the following provisions of this paragraph; 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(2), 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 Network Rail 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 Network Rail 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 sewerage 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;

“public utility undertakers” has the same meaning as in the 1980 Act(3); and

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

Article 22

SCHEDULE 14 MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASING 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 1961 Act has effect subject to the following modification set out in sub-paragraph (2).

(2) For section 5A (5A) of the 1961 Act (relevant valuation date), substitute—

“(5A) If–

(a) the acquiring authority enters on land for the purpose of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act (as modified by paragraph 5(5) of Schedule 14 to the Network Rail (Cambridgeshire Level Crossing Reduction) Order 2020 (“the 2020 Order”;

(b) the acquiring authority is subsequently required by a determination under paragraph 12 of Schedule 2A to the 1965 Act (as substituted by paragraph 5(8) of Schedule 14 to the 2020 Order) to acquire an interest in the land, and

(c) the acquiring authority enters on and takes possession of that land,

the authority is deemed for the purposes of subsection (3)(a) to have entered on that land when it entered on that land for the purpose of exercising that right.”

3.—(1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973(4) has effect subject to the modifications set out in sub-paragraph (2).

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 5(3)—

(a) for “land is acquired or taken” substitute “a right over land is purchased”; and

(b) for “acquired or taken from him” substitute “over which the right is exercisable”.

Application of Part 1 of the 1965 Act

4.  Part 1 (compulsory purchase under Acquisition of Land Act 1946) of the 1965 Act, as applied by article 20 (application of Part 1 of the 1965 Act) to the acquisition of land under article 19(1) (power to acquire land), applies to a compulsory acquisition of rights under article 22(1)( power to acquire new rights)—

(a) with the modifications specified in paragraph 5, and

(b) with such other modifications as may be necessary.

5.—(1) The modifications referred to in paragraph 4(a) are as follows.

(2) References in the 1965 Act to land are, in appropriate contexts, 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.

(3) For section 7 (measure of compensation in the case of severance) of the 1965 Act substitute—

“7.   In assessing the compensation to be paid by the acquiring authority under this Act, regard shall be had not only to the extent (if any) to which the value of the land over which the right is 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.”.

(4) 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)—

(a) section 9(4) (failure of 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 so modified 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 acquired compulsorily is vested absolutely in the acquiring authority.

(5) Section 11(5) (powers of entry) of the 1965 Act is modified so as to secure that, where the acquiring authority has served notice to treat in respect of any right as well as the notice required by subsection (1) of that section (as it applies to a compulsory acquisition under article 20(1)), it has power, exercisable in the same circumstances and subject to the same conditions, to enter for the purpose of exercising that right; and sections 11A(6)(powers of entry: further notices of entry), 11B(7) (counter-notice requiring possession to be taken on a specified date), 12(8) (penalty for unauthorised entry) and 13(9) (refusal to give possession to acquiring authority) of that Act are modified accordingly.

(6) Section 20(10) (tenants at will etc.) of the 1965 Act 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 interests as is actually caused, or likely to be caused, by the exercise of the right in question.

(7) Section 22 (interests omitted from purchase) of the 1965 Act (as modified by article 20(7)) 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.

(8) For Schedule 2A to the 1965 Act substitute—

“SCHEDULE 2A COUNTER-NOTICE REQUIRING PURCHASE OF LAND

Introduction

1.   This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over the whole or part of a house, building or factory.

2.   In this Schedule, “house” includes any park or garden belonging to a house.

Counter-notice requiring purchase of land

3.   A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner’s interest in the house, building or factory.

4.   A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.

Response to counter-notice

5.   On receiving a counter-notice, the authority must decide whether to—

(a) withdraw the notice to treat,

(b) accept the counter-notice, or

(c) refer the counter-notice to the Upper Tribunal.

6.   The authority must serve notice of its decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).

7.   If the authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period.

8.   If the authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period.

9.   If the authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory.

Determination by Upper Tribunal

10.   On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right would—

(a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or

(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.

11.   In making its determination, the Upper Tribunal must take into account—

(a) the effect of the acquisition of the right,

(b) the use to be made of the right proposed to be acquired, and

(c) if the right is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.

12.   If the Upper Tribunal determines that the acquisition of the right would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take.

13.   If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land.

14.— (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.

(2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.

(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.”

Article 31

SCHEDULE 15 PROHIBITION OF VEHICULAR TRAFFIC

In the County of Cambridgeshire, District of East Cambridgeshire‒‒

(1) Area	(2) Road	(3) Extent
Parish of Downham	BOAT 44	No vehicles exceeding two metres in width and exceeding 1.95 metres in height between points TR001 and TR002
Parish of Littleport	Lynn Road/Station Road	No vehicles except bicycles between points TR003 and TR004
Parish of Westley Waterless	Westley Bottom Road/BOAT 1	No vehicles exceeding 1.525 metres in width between points P111 and P114

Article 37

SCHEDULE 16 FOR THE PROTECTION OF DRAINAGE AUTHORITIES AND THE ENVIRONMENT AGENCY

1.—(1) The following provisions of this Schedule apply for the protection of the drainage authority unless otherwise agreed in writing between Network Rail and the drainage authority.

(2) In this Schedule—

“the Agency” means the Environment Agency;

“a category 1 specified work” means so much of any permanent or temporary work or operation authorised by this Order (which includes any dredging and any -geotechnical investigations that may be undertaken) as consists of—

(a)

erecting any structure (whether temporary or permanent) in, over or under a main river if the work is likely to affect any drainage work which is or includes a main river or the volumentric rate of flow of water in or flowing to or from any main river;

(b)

the carrying out of any work of alteration or repair of any structure (whether temporary or permanent) in, over or under a main river if the work is likely to affect the flow of water in the main river or to affect any drainage work;

(c)

erecting or altering any structure (whether temporary or permanent) designed to contain or divert the floodwaters of any part of a main river; or

(d)

any work or operation that is in, on, under, over or within 16 metres of a drainage work which is or includes a main river or is otherwise likely to affect any such drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work.

“a category 2 specified work” means any of the following—

(a)

erecting any mill dam, weir or other like obstruction to the flow of any ordinary watercourse, or raising or otherwise altering any such obstruction;

(b)

erecting a culvert in any ordinary watercourse;

(c)

altering a culvert in a manner that would be likely to affect the flow of any ordinary watercourse; or

(d)

altering, removing or replacing a structure or feature designated by a local drainage authority under Schedule 1 to the Flood and Water Management Act 2010(11);

“construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are construed accordingly;

“the drainage authority” means—

(a)

in relation to a category 1 specified work, the Agency;

(b)

in relation to a category 2 specified work, the drainage board concerned within the meaning of section 23 (prohibition on obstructions etc in watercourses) of the Land Drainage Act 1991(12).

“drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

“the fishery” means any waters containing fish and the spawn, habitat or food of such fish;

“a main river” and “ordinary watercourse” have the meanings given by respectively the Water Resources Act 1991 and the Land Drainage Act 1991;

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

“specified work” means a category 1 specified work or a category 2 specified work.

2.—(1) Before beginning to construct any specified work, Network Rail must submit to the drainage authority plans of the specified work and such further particulars available to it as the drainage authority may within 28 days of the receipt of the plans reasonably require.

(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority, or determined under paragraph 12.

(3) Any approval of the drainage authority required under this paragraph—

(a) must not be unreasonably withheld;

(b) is deemed to have been given if it is neither given nor refused within 2 months of the submission of the plans for approval and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and

(c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, fishery, water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.

(4) The drainage authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

3.  Without limitation on the scope of paragraph 2, the requirements which the drainage authority may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

(a) to safeguard any drainage work against damage; or

(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

4.—(1) Subject to sub-paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 3, must be constructed—

(a) without unnecessary delay in accordance with the plans approved or settled under this Schedule; and

(b) to the reasonable satisfaction of the drainage authority,

and an officer of the drainage authority is entitled to watch and inspect the construction of such works.

(2) Network Rail must give to the drainage authority not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is completed.

(3) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Schedule, the drainage authority may by notice in writing require Network Rail at Network Rail’s own expense to comply with the requirements of this Schedule or (if Network Rail so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires.

(4) Subject to sub-paragraph (5) and paragraph 8, if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon Network Rail, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any expenditure incurred by it in so doing is recoverable from Network Rail.

(5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the drainage authority must not except in an emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.

(6) If by reason of construction of the specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, Network Rail must provide such alternative means of access to allow the Agency to maintain the flood defence or use the equipment no less effectively than before the obstruction.

5.—(1) Subject to sub-paragraph (5) Network Rail must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by Network Rail for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

(2) If any such drainage work which Network Rail is liable to maintain is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice in writing require Network Rail to repair and restore the work, or any part of such work, or (if Network Rail so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the work and restore the site to its former condition, to such extent and within such limits as the drainage authority reasonably requires.

(3) Subject to sub-paragraph (5) and paragraph 8, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on Network Rail, Network Rail has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from Network Rail.

(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the drainage authority must not except in a case of an emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.

(5) This paragraph does not apply to—

(a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is liable to maintain and is not precluded by the powers of the Order from doing so; and

(b) any obstruction of a drainage work for the purpose of a work or operation authorised by this Order and carried out in accordance with the provisions of this Schedule.

6.  Subject to paragraph 8, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage must be made good by Network Rail to the reasonable satisfaction of the drainage authority and if Network Rail fails to do so, the drainage authority may make good the same and recover from Network Rail the expense reasonably incurred by it in so doing.

7.—(1) Network Rail must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.

(2) If by reason of—

(a) the construction of any specified work; or

(b) the failure of any such work,

damage to a fishery is caused, or the Agency has reason to expect that such damage may be caused, the drainage authority may serve notice on Network Rail requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

(3) Subject to paragraph 8, if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, Network Rail fails to take such steps as are described in sub-paragraph (2), the drainage authority may take those steps and may recover from Network Rail the expense reasonably incurred by it in doing so.

(4) Subject to paragraph 8, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the drainage authority may take such steps as are reasonable for the purpose, and may recover from Network Rail the reasonable cost of so doing provided that notice specifying those steps is served on Network Rail as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

8.  Nothing in paragraphs 4(4), 5(3), 6, 7(3) and (4) authorises the drainage authority to execute works on or affecting an operational railway forming part of Network Rail’s network without the prior consent in writing of Network Rail such consent not to be unreasonably withheld or delayed.

9.  Network Rail must indemnify the drainage authority in respect of all costs, charges and expenses which the drainage authority may reasonably incur or have to pay or which it may sustain—

(a) in the examination or approval of plans under this Schedule;

(b) in the inspection of the construction of the specified works or any protective works required by the drainage authority under this Schedule.

10.—(1) Without affecting the other provisions of this Schedule, Network Rail must indemnify the drainage authority from all claims, demands, proceedings, costs, charges, penalties, damages, expenses and losses, which may be made or taken against, recovered from, or incurred by, the drainage authority by reason of—

(a) any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

(b) any damage to the fishery;

(c) any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses;

(d) any flooding or increased flooding of any such lands, or

(e) inadequate water quality in any watercourse or other surface waters or in any groundwater,

which is caused by the construction of any of the specified works or any act or omission of Network Rail, its contractors, agents or employees whilst engaged upon the work.

(2) The drainage authority must give to Network Rail reasonable notice of any such claim or demand and no settlement or compromise may be made without the agreement of Network Rail which agreement must not be unreasonably withheld or delayed.

11.  The fact that any work or thing has been executed or done by Network Rail in accordance with plans approved by the drainage authority, or to the drainage authority’s satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve Network Rail from any liability under the provisions of this Schedule.

12.  Any dispute arising between Network Rail and the drainage authority under this Schedule, if the parties agree, is to be determined by arbitration under article 39 (arbitration), but otherwise is to be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly on a reference to them by Network Rail or the drainage authority, after notice in writing by one to the other.

(1)

Sections 272 to 274 were amended by paragraph 103(1) and (2) of Schedule 17 to the Communications Act 2003 (c. 21).

(2)

Section 279(3) was amended by paragraphs 103(1) and (2), and section 280 was amended by paragraph 104 of Schedule 17 to the Communications Act 2003. Sections 280 and 282 were amended by S.I. 2009/1307.

(3)

The definition of “public utility undertakers” was amended by section 190(3) of, and Part 1 of Schedule 27 to, the Water Act 1989 (c. 15) and section 112(4) of, and Schedule 18 to, the Electricity Act 1989 (c. 29).

(4)

1973 c. 26.

(5)

Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

(6)

Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016.

(7)

Section 11B was inserted by section 187(3) of the Housing and Planning Act 2016.

(8)

Section 12 was amended by section 56(2) of, and Part 1 of Schedule 9 to, the Courts Act 1971 (c. 23) and paragraph 4 of Schedule 16 to the Housing and Planning Act 2016.

(9)

Section 13 was amended by sections 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

(10)

Section 20 was amended by section 70 of, and paragraph 4 of Schedule 15 to, the Planning and Compensation Act 1991 (c. 34) and S.I. 2009/1307.

(11)

2010 c. 29.

(12)

1991 c. 59.