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Article 3
1. Where a street it stopped up under article 3 (stopping up of streets) any statutory utility whose apparatus is under, in, upon, along or across that street has the same powers and rights in respect of that apparatus, subject to the provisions of this Schedule, as if this Order had not been made.
2. Where a street is stopped up under article 3 any statutory utility whose apparatus is under, in, upon, over, along or across that street may, and if reasonably requested to do so by Network Rail must—
(a)remove the apparatus and place it or other apparatus in substitution for it in such other position as the statutory utility may reasonably determine and have power to place it; or
(b)provide other apparatus in substitution for the existing apparatus and place it in that other position.
3. Subject to the following provisions of this Schedule, Network Rail must pay to any statutory utility an amount equal to the cost reasonably incurred by the statutory utility in or in connection with—
(a)the execution of the relocation works required in consequence of the stopping up of the street; and
(b)the doing of any other work or thing rendered necessary by the execution of the relocation works.
4. If in the course of execution of relocation works under paragraph 3—
(a)apparatus of a better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus; or
(b)apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,
and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by Network Rail, or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this paragraph would be payable to the statutory utility by virtue of paragraph 3 is to be reduced by the amount of that excess.
5. For the purposes of paragraph 4—
(a)an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and
(b)where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
6. An amount which, apart from this paragraph, would be payable to a statutory utility in respect of works by virtue of paragraph 3 (and having regard, where relevant, to paragraph 4) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the statutory utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.
7. Paragraphs 3 to 6 do not apply where the authorised works constitute major transport works for the purpose of Part 3 (street works in England and Wales) of the 1991 Act, but instead—
(a)the allowable costs of the relocation works are to be determined in accordance with section 85 (sharing of cost of necessary measures) of that Act and any regulations for the time being having effect under that section; and
(b)the allowable costs are to be borne by Network Rail and the statutory utility in such proportions as may be prescribed by any such regulations.
8. In this Schedule—
“apparatus” has the same meaning as in Part 3 of the 1991 Act;
“relocation works” means work executed, or apparatus provided, under paragraph 2; and
“statutory utility” means a statutory undertaker for the purposes of the 1980 Act(1) or a public communications provider as defined in section 151(1) (interpretation of chapter 1) of the Communications Act 2003(2).
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).
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