The Lake Lothing (Lowestoft) Third Crossing Order 2020

PART 5 FOR THE PROTECTION OF THE HARBOUR AUTHORITY

53.  For the protection of the harbour authority the provisions of this Part of this Schedule, have effect unless otherwise agreed in writing.

54.  In this Part of this Schedule—

“accumulation” means any accumulation of silt or other material (including any materials used to construct the authorised development) which constitutes an impediment to navigation at or in the approaches to Lowestoft Harbour;

“erosion” means any erosion of the bed or banks of the lake or any quay or jetty or other structure of whatever nature within Lowestoft Harbour;

“plans” includes sections, descriptions, drawings, specifications, proposed method statements and hydraulic information, including but not limited to information as to the discharge of water and materials;

“port land” means any land in Lowestoft Harbour held by the harbour authority for the purposes of its statutory undertaking; and

“specified work” means any tidal work or any other work or operation authorised by this Order on port land or which may affect port land or navigation in respect of Lowestoft Harbour of the functions or the harbour authority in relation to the operation of Lowestoft Harbour.

55.—(1) The undertaker must not, under the powers conferred by this Order, temporarily possess, acquire or use, or acquire new rights over, port land without the consent of the harbour authority.

(2) The undertaker must not exercise the powers conferred by article 17 (authority to survey and investigate land) or the powers conferred by section 11(3) (powers of entry) of the 1965 Act in respect of any port land without the consent of the harbour authority.

(3) The powers conferred by article 29 (power to override easements and other rights) do not apply to any rights held by the harbour authority for the purpose of its statutory undertaking, except with the consent of the harbour authority.

(4) The consent of the harbour authority under this paragraph must not be unreasonably withheld but may be given subject to reasonable conditions.

(5) If the harbour authority fails to express its refusal or approval of any request for a consent under—

(a) sub-paragraph (1) in respect of temporary possession powers;

(b) sub-paragraph (2); or

(c) sub-paragraph (3),

within 30 days of such a request having been delivered to it, and the harbour authority has not requested an extension of time to give its consent from the undertaker prior to the expiration of the 30 days which the undertaker has granted, acting reasonably, such a request is deemed to have been refused by the harbour authority.

(6) If the harbour authority fails to express its approval of any request for a consent under sub-paragraph (1), (2) or (3) at the expiration of the extension of time granted by the undertaker under sub-paragraph (5), such a request is deemed to have been refused by the harbour authority.

56.—(1) At least 56 days before commencing the construction or maintenance of any specified work, the undertaker must submit to the harbour authority plans of that work for its approval.

(2) Any approval of the harbour authority under this paragraph—

(a) must not be unreasonably withheld;

(b) may be given subject to such reasonable requirements as the harbour authority may make for the protection of Lowestoft Harbour and navigation within Lowestoft Harbour and the approaches to Lowestoft Harbour, including a requirement for the undertaker to carry out protective works at its own expense; and

(c) must not restrict the powers granted to the undertaker under this Order where such powers do not affect the harbour authority’s undertaking.

(3) The undertaker must carry out any specified work and any protective works required under sub-paragraph (2)(b) in accordance with the plans approved under sub-paragraph (1) or settled under article 62 (arbitration).

(4) If the harbour authority fails to express its refusal or approval of any plans or arrangements within 30 days after they have been delivered to it under sub-paragraph (1) and the harbour authority has not requested an extension of time to give its consent from the undertaker prior to the expiration of the 30 days which the undertaker has granted, acting reasonably, it is deemed to have refused them.

(5) If the harbour authority fails to express its approval of any plans or arrangements delivered to it under sub-paragraph (1) at the expiration of the extension of time granted by the undertaker under sub-paragraph (4), such a request is deemed to have been refused by the harbour authority.

57.  The undertaker must at all reasonable times during construction of a specified work allow the harbour authority, its servants and agents, access to such work and all reasonable facilities for inspection of any such work subject always to the reasonable stipulations of the undertaker relating to delay to construction, health, safety, security and confidentiality.

58.—(1) After the purpose of any temporary works has been accomplished the undertaker must with all reasonable dispatch, or after a reasonable period of notice in writing from the harbour authority requiring the undertaker so to do, remove any such temporary works or any materials relating to them which may have been placed on port land or below the level of high water within Lowestoft Harbour or the approaches to Lowestoft Harbour by or on behalf of the undertaker, and make good the land upon which the temporary works took place to the reasonable satisfaction of the harbour authority.

(2) If the undertaker fails to do so within a reasonable period after receiving such notice, the harbour authority may remove the same and may recover the reasonable costs of doing so from the undertaker.

59.—(1) If during the construction of a tidal work or after the completion of that work and wholly or partly in consequence of its construction there is caused or created an accumulation or erosion the undertaker, if so requested by the harbour authority acting reasonably, must remedy such accumulation or erosion to the extent attributable to such construction and, if it refuses or fails to do so as soon as reasonably practicable, the harbour authority may itself cause the work to be done and may recover the reasonable cost of doing so from the undertaker.

(2) For the purposes of sub-paragraph (1)—

(a) in the case of an accumulation, the remedy must be its removal; and

(b) in the case of erosion, the remedy must be the carrying out of such reconstruction works and other protective works or measures as the harbour authority reasonably requires.

(3) In the event that surveys, inspection, tests and sampling carried out pursuant to paragraph 64(1)(b) establish that such accumulation or erosion would have been caused in any event by factors other than construction of a tidal work, the undertaker is liable to remedy such accumulation or erosion only to the extent that the same is attributable to such construction.

60.  The undertaker must pay to the harbour authority the reasonable costs of—

(a) alterations to aids to navigation (including navigation marks or lights) owned by the harbour authority;

(b) laying down moorings or buoys; or

(c) carrying out any dredging operations in relation to sub-paragraphs (a) and (b),

as may be necessary in consequence of the construction of a tidal work.

61.  The undertaker must, at or near a specified work, exhibit such lights, lay down such buoys, display such navigational markings and take such other steps for preventing danger to navigation as the harbour authority may from time to time reasonably require.

62.  The undertaker must comply with any reasonable directions issued from time to time by the harbour master with regard to the lighting of a specified work or the screening of such lighting so as to ensure that it is not a hazard to navigation in Lowestoft Harbour.

63.—(1) If any tidal work of which the undertaker is in possession in exercise of any of the powers conferred by this Order is abandoned or falls into decay, insofar as it affects or otherwise impacts upon the operation of Lowestoft Harbour or navigation in the approaches to Lowestoft Harbour, the harbour authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either to repair or restore the work, or any part of it, or to remove the work and (to such extent as the harbour authority may reasonably requires) to restore the site to its former condition.

(2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation, the harbour authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice—

(a) to repair and restore the work or part of it; or

(b) if the undertaker so elects, to remove the tidal work and (to such extent as the harbour authority reasonably requires) to restore the site to its former condition.

(3) If after such reasonable period as may be specified in a notice under this paragraph the undertaker has failed to begin taking steps to comply with the requirements of the notice, or after beginning to take such steps has failed to make reasonably expeditious progress towards effecting compliance with the requirements of the notice, the harbour authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing is recoverable from the undertaker.

(4) In the event of a difference or dispute between the undertaker and the harbour authority as to the necessity of any steps or works specified in a notice by the harbour authority under this paragraph, such difference or dispute must be determined by arbitration in accordance with article 62 (arbitration).

64.—(1) Without limiting the other provisions of this Part, the undertaker is to be responsible for, and must make good to the harbour authority, all losses, costs, charges, damages and expenses however caused which may reasonably be incurred by or occasioned to the harbour authority by reason of or arising from or in connection with—

(a) the perusal of plans and navigation schemes and the inspection of a specified work by the harbour authority or its duly authorised representative;

(b) the carrying out of surveys, inspections, tests and sampling within Lowestoft Harbour and the approaches to Lowestoft Harbour—

(i) to establish the marine conditions prevailing prior to the construction of any of the tidal works in such area of Lowestoft Harbour as the harbour authority has reasonable cause to believe may subsequently be affected by any accumulation or erosion which the undertaker is liable to remedy under paragraph 59; and

(ii) where the harbour authority has reasonable cause to believe that the construction of any of the tidal works is causing or has caused any such accumulation or erosion;

(c) any update of the navigation risk assessment relating to Lowestoft Harbour in consequence of paragraph 11(4) (navigation risk assessment) of Schedule 2 to the extent that it is required as a consequence of any variation to, or replacement of, the Scheme of Operation proposed by the undertaker or the harbour authority under article 41 (operation of the new bridge) or as a result of the operation of the new bridge generally;

(d) any variation to or replacement of the Scheme of Operation proposed by the undertaker or harbour authority under article 41;

(e) the harbour authority responding to a request for consultation, agreement, approval or consent pursuant to any provision of this Order;

(f) the construction, maintenance or failure of a specified work, or the undertaking by the harbour authority of works or measures to prevent or remedy danger or impediment to navigation, or damage to port land arising from such construction, maintenance or failure, including but not limited to—

(i) any additional costs of dredging incurred by the harbour authority as a result of contamination of the lakebed caused by the construction or maintenance of the specified work;

(ii) damage to any plant or equipment belonging to the harbour authority and located on port land, or to any port land or building on port land, that is caused by the construction, maintenance or failure of a specified work; and

(iii) the failure of the new bridge to open fully; and

(g) any act or omission of the undertaker or its servants or agents whilst engaged in the construction or maintenance of a specified work or in the act of operating the opening mechanism of the new bridge to enable it to open fully, save where such acts or omissions are undertaken by the harbour authority.

(2) Without limiting the generality of sub-paragraph (1), the undertaker must indemnify the harbour authority from and against all claims and demands arising out of, or in connection with, such construction, maintenance or failure or act or omission as is mentioned in that sub-paragraph.

(3) Nothing in this paragraph imposes any liability on the undertaker to the extent that any losses, costs, charges, damages, expenses, claims or demands referred to in sub-paragraph (2) are attributable to negligence on the part of the harbour authority or of any person in its employ or of its contractors or agents, including negligence in the course of operating the opening mechanism of the new bridge.

(4) The harbour authority must give to the undertaker notice in writing of any claim or demand for which the undertaker may be liable under this paragraph and no settlement or compromise of any such claim or demand may be made without the consent in writing of the undertaker.

65.  The fact that any work or thing has been executed or done with the consent of the harbour authority and in accordance with any conditions or restrictions prescribed by the harbour authority or in accordance with any plans approved or deemed to be approved by the harbour authority or to its satisfaction or in accordance with any directions or award of any arbitrator does not relieve the undertaker from any liability under the provisions of this Part.

66.  Save to the extent expressly provided for nothing in this Order affects prejudicially any statutory or other rights, powers or privileges vested in, or enjoyed by, the harbour authority or the harbour master at the date of this Order coming into force.

67.  With the exception of any duty owed by the harbour authority to the undertaker, nothing in this Order is to be construed as imposing upon the harbour authority any duty or liability to which the harbour authority would not otherwise be subject.

68.  Any difference or dispute arising under this Part must, unless otherwise agreed in writing between the undertaker and the harbour authority, be determined by arbitration in accordance with article 62 (arbitration).