PART 3MISCELLANEOUS AND GENERAL
Level crossing to be stopped up14
1
Subject to the provisions of this article, the level crossing listed in column (2) of Schedule 3 (closure of level crossing) is stopped up and discontinued.
2
Upon the stopping up and discontinuance of the level crossing referred to in paragraph (1) all rights of way (whether public or private) over that crossing are extinguished.
3
Any person who suffers loss by reason of the extinguishment of any private right of way under this article is entitled to compensation to be determined, in the case of dispute, as if it were a dispute under Part 1 of the 1961 Act.
Use of private roads for construction15
1
Network Rail may use any private road within the Order limits for the passage of persons or vehicles (with or without materials, plant and machinery) for the purposes of, or in connection with, the construction of the authorised works.
2
Network Rail must compensate the person liable for the repair of a road to which paragraph (1) applies for any loss or damage which that person may suffer by reason of the exercise of the power conferred by paragraph (1).
3
Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of such compensation, is to be determined as if it were a dispute under Part 1 of the 1961 Act.
Power to survey and investigate land16
1
Network Rail may for the purposes of this Order—
a
survey or investigate any land shown within the Order limits or which may be affected by the authorised works;
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 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 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
a statement of the recipient’s rights under paragraph (14); and
b
a copy of any warrant issued under paragraph (7).
4
If Network Rail 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.
5
If Network Rail obtains a warrant after giving notice in accordance with paragraph (2) it must give a copy of the warrant to all those to whom it gave that notice.
6
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 (7);
b
may not use force unless a justice of the peace has issued a warrant under paragraph (7) authorising the person to do so;
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;
d
may only enter and survey land at a reasonable time; and
e
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
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.
8
The force that may be authorised by a warrant is limited to that which is reasonably necessary.
9
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 investigating land.
10
The number specified for the purposes of paragraph (9) must be the number which the justice of the peace considers appropriate to achieve the purpose for which the entry and survey or investigation are required.
11
Any evidence in proceedings for a warrant under this article must be given on oath.
12
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.
13
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 (12)(a) in the case of a highway authority; or
b
under paragraph (12)(b) in the case of a street authority,
that authority is deemed to have granted consent.
14
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, as if it were a dispute under Part 1 of the 1961 Act.
15
Nothing in this article overrides the requirement to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 197928.
Statutory undertakers, etc.17
Schedule 4 (provisions relating to statutory undertakers, etc.) has effect.
Certification of plans, etc.18
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, respectively, true copies of 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 notices19
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 197829 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 his 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 recovery20
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.
Arbitration21
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.
Protective provisions22
Schedule 5 (protective provisions) has effect.
Disapplication of legislative provisions23
The provisions of the Neighbourhood Planning Act 201730 are dis-applied insofar as they related to the temporary occupation of land under article 8 (temporary possession of land).