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High Speed Rail (London - West Midlands) Act 2017

Type Public General Act

Publication 2017-02-23

Last updated 2024-10-30

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(1) Section 74(1) of the 1984 Act (which requires local authority consent for the construction of a cellar or room below subsoil water level in, or as part of, a house, shop, inn, hotel or office) does not apply to the construction of a cellar or room in connection with a shop, inn, hotel or office which forms part of a railway station or other railway facility which is being used, or which is intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

(2) The reference in sub-paragraph (1) to a “"railway facility”” includes a maintenance depot, electrical supply facility or stabling facility used for the purposes of a railway.

Interpretation

6

In this Schedule—

“"the 1984 Act”” means the Building Act 1984;

“"building regulations”” has the same meaning as in the 1984 Act (see section 122 of that Act).

SCHEDULE 23

1

In this Schedule, “"the 1996 Act”” means the Party Wall etc Act 1996.

2

No notice under section 1(2) or (5) of the 1996 Act (notice before building on line of junction with adjoining land) is required before the building of any wall for Phase One purposes.

3

Sections 1(6) and 2 of the 1996 Act (rights of adjoining owners) do not have effect to confer rights in relation to—

(a) anything held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act, or

(b) land on which there is any such thing.

4

No party structure notice under section 3 of the 1996 Act is required before the exercise of any right conferred by section 2 of that Act (right to repair etc party wall) for the purposes of or in connection with—

(a) the construction of the works authorised by this Act, or

(b) the maintenance of any such work during the period beginning with the date on which the work is completed and ending 5 years after the date on which it is brought into general use.

5

Section 6 of the 1996 Act (underpinning of adjoining buildings) does not apply in relation to a proposal to excavate, or excavate for and erect anything, for Phase One purposes.

6

(1) Where—

(a) a building owner (within the meaning of the 1996 Act) serves a notice under section 6(5) of that Act, and

(b) the building or structure of the adjoining owner (within the meaning of that Act) referred to in that provision is a building or structure—

(i) erected for Phase One purposes, or

(ii) situated on land held by the Secretary of State or the nominated undertaker for the purposes of the nominated undertaker's undertaking under this Act,

section 6 of that Act has effect as if it were subject to the following modifications.

(2) Those modifications are—

(a) that subsection (3) is omitted, and

(b) the substitution for subsections (6) and (7) of—

(6) The notice referred to in subsection (5) (““the proposals notice””)— (a) shall be accompanied by plans and sections showing— (i) the site and depth of any excavation the building owner proposes to make; (ii) if he proposes to erect a building or structure, its site; and (b) where the notice includes a proposal to underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner, shall— (i) include a detailed description of those works; and (ii) specify the building owner's programme for carrying them out. (6A) The adjoining owner may serve a notice on the building owner consenting to the proposals notice. (6B) Where the proposals include the carrying out of works mentioned in subsection (6)(b), the consent notice served under subsection (6A) must state whether the adjoining owner— (a) is to carry out those works himself, or (b) requires the works to be carried out by the building owner. (7) If an owner on whom a proposals notice has been served does not serve a consent notice within the period of 14 days beginning with the day on which the proposals notice was served, he shall be deemed to have dissented from the notice and a dispute shall be deemed to have arisen between the parties. (7A) Works to underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner (whether proposed in the proposals notice or otherwise) are to be carried out by the adjoining owner, unless the building owner is required to carry them out— (a) by virtue of a requirement within subsection (6B)(b), or (b) where a dispute is deemed to have arisen between the parties in relation to any matter, by a notice served by the adjoining owner on the building owner within the period of 14 days beginning with— (i) the day on which the parties settle the dispute, or (ii) the day on which an award is made under section 10 in relation to the dispute. (7B) The works (whether carried out by the adjoining owner or the building owner) are to be carried out— (a) at the building owner's expense, and (b) in accordance with the description and programme agreed by the parties (whether by virtue of a consent notice or in connection with the settlement of any dispute) or determined in accordance with section 10 (in the case of a dispute in relation to which an award is made under that section).

7

(1) This paragraph applies where a dispute arises or is deemed to have arisen in respect of a matter connected with any work to which the 1996 Act relates and the work—

(a) is required for Phase One purposes, or

(b) relates to a building or structure situated on land held by the Secretary of State or the nominated undertaker for the purposes of the nominated undertaker's undertaking under this Act.

(2) In such a case, the 1996 Act has effect as if for section 10 (resolution of disputes) there were substituted—

(10) (1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act applies, the dispute is to be settled by a single arbitrator, to be— (a) agreed on by both parties, or (b) in default of agreement, appointed on the application of either party, after notice in writing to the other, by the President of the Institution of Civil Engineers. (2) If the arbitrator— (a) refuses to act; (b) neglects to act for a period of ten days beginning with the day on which either party serves a request on the arbitrator; (c) dies before the dispute is settled; or (d) becomes or deems himself or herself incapable of acting, subsection (1) applies again. (3) The arbitrator must settle by award any matter— (a) which is connected with any work to which this Act relates, and (b) which is in dispute between the building owner and the adjoining owner. (4) An award may determine— (a) the right to execute any work; (b) the time and manner of executing any work; and (c) any other matter arising out of or incidental to the dispute including the costs of making the award. (5) But, unless otherwise agreed between the building owner and the adjoining owner, any period appointed by the award for executing any work does not begin to run until after the end of the period prescribed by this Act for service of the notice in respect of which the dispute arises or is deemed to have arisen. (6) The reasonable costs incurred in— (a) making or obtaining an award under this section, (b) reasonable inspections of work to which the award relates, and (c) any other matter arising out of the dispute, are to be paid by such of the parties as the arbitrator determines. (7) Where the arbitrator makes an award, the arbitrator must serve it forthwith on the parties. (8) The award is conclusive and must not except as provided by this section be questioned in any court. (9) Either of the parties to the dispute may appeal to the county court against the award within the period of 14 days beginning with the day on which the award is served on the party making the appeal. (10) On such an appeal, the county court may— (a) rescind the award or modify it in such manner as the court thinks fit; and (b) make such order as to costs as the court thinks fit.

(3) Where the 1996 Act has effect as mentioned in sub-paragraph (2)—

(a) section 7(5) has effect as if the words ““(or surveyors acting on their behalf)”” were omitted,

(b) section 8(5) has effect as if the reference to a surveyor appointed or selected under section 10 were to an arbitrator agreed or appointed under section 10 (as modified by sub-paragraph (2)),

(c) section 8(6) has effect as if it provided for the arbitrator to give notice of its intention to enter land or premises, and

(d) section 12(3)(b) has effect as if the reference to the surveyor or surveyors were to the arbitrator.

8

(1) Where, by virtue of paragraph 6, work to which a notice under section 6(5) of the 1996 Act relates are carried out by an adjoining owner, sections 13 and 14 of that Act have effect subject to the following modifications.

(2) Section 13(1) has effect as if it enabled the adjoining owner, within the period of two months beginning with the day of the completion of the work, to serve on the building owner an account in writing showing particulars and expenses of the work.

(3) Section 13(2) has effect as if it enabled the building owner to serve on the adjoining owner a notice objecting to the account served under section 13(1) (as modified by sub-paragraph (2)).

(4) Section 14 has effect as if—

(a) for subsection (1) there were substituted—

(1) All expenses to be defrayed by a building owner in accordance with an account served under section 13 shall be paid by the building owner.

, and

(b) subsection (2) were omitted.

SCHEDULE 24

Works in or near highways

1

(1) The following enactments (which control obstructions of the highway in connection with works relating to buildings) do not apply to anything erected, placed or retained in, upon or over a highway for the purposes of or in connection with the exercise of the powers conferred by this Act—

(a) section 15(1) of the Greater London Council (General Powers) Act 1970 (c. lxxvi), and

(b) section 169(1) of the Highways Act 1980.

(2) Section 141 of the Highways Act 1980 (restriction on planting trees or shrubs in or near carriageway) does not apply to any tree or shrub planted for the purposes of or in connection with the exercise of the powers conferred by this Act.

(3) Section 167 of the Highways Act 1980 (powers relating to retaining walls near streets) does not apply to any length of a retaining wall erected on land held by the Secretary of State or by the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

(4) Nothing in section 8(2) to (5) of the Greater London Council (General Powers) Act 1986 (c. iv) (power of borough councils in relation to retaining walls supporting the carriageway or footway of certain highways) applies with respect to any retaining wall erected in exercise of the powers conferred by this Act.

(5) The provisions of this paragraph apply in relation to a highway for which the Secretary of State or a strategic highways company is the highway authority only if the Secretary of State or the strategic highways company consents (and consent may be subject to conditions).

Street works

2

(1) The powers conferred by section 56(1) and (1A) of the New Roads and Street Works Act 1991 (powers to give directions as to the timing of proposed and subsisting street works) do not apply in relation to works proposed to be, or being, carried out under the powers conferred by this Act.

(2) Section 56A of that Act (power to give directions as to placing of apparatus) does not apply in relation to the placing of apparatus in exercise of the powers conferred by this Act.

(3) No restriction under section 58(1) of that Act (power to impose restriction on execution of street works following completion of substantial road works) has effect in relation to works carried out under the powers conferred by this Act.

(4) Section 61(1) of that Act (under which the consent of the street authority is required for the placing of apparatus in a protected street) does not apply to the placing of apparatus in exercise of the powers conferred by this Act.

(5) Section 62(2) of that Act (power following designation of protected street to require removal or repositioning of apparatus already placed in the street) does not apply in relation to apparatus placed in exercise of the powers conferred by this Act.

(6) Section 62(4) of that Act (power, when designation as protected street commences or ceases, to give directions with respect to works in progress) does not apply in relation to works being carried out under the powers conferred by this Act.

(7) Section 63(1) of that Act (under which Schedule 4 to that Act has effect for requiring the settlement of a plan and section of street works to be executed in a street designated by the street authority as having special engineering difficulties) does not apply in relation to works to be executed under the powers conferred by this Act.

(8) The power conferred by section 73A(1) of that Act (power to require undertaker to re-surface street) may not be exercised in relation to an undertaker who is within subsection (2) of that section because of—

(a) having given a notice in respect of works proposed to be carried out under the powers conferred by this Act, or

(b) executing, or having executed, works under those powers.

(9) Nothing in section 74A of that Act (power to make regulations requiring payment of charges for street works), or in regulations made under it, applies in relation to the execution of works under the powers conferred by this Act.

(10) No contribution is payable under section 78A(1)(b) of that Act (contributions by other undertakers to costs incurred in executing works specified in a re-surfacing notice) because of the execution of works under the powers conferred by this Act.

(11) Schedule 3A to that Act (restriction on works following substantial street works) does not apply where a notice under section 54 (advance notice of certain works) or section 55 (notice of starting date of works) of that Act is in respect of works to be executed under the powers conferred by this Act.

(12) No notice under paragraph 2(1)(d) of that Schedule (power by notice to require notification of works which an undertaker proposes to carry out in a part of a highway to which a proposed restriction applies) has effect to require the notification of works proposed to be carried out under the powers conferred by this Act.

(13) No directions under paragraph 3 of that Schedule (directions as to the date on which undertakers may begin to execute proposed works) may be issued to the nominated undertaker.

(14) Paragraph 3(4) of that Schedule (under which it is an offence for an undertaker to execute street works before the completion of certain other street works) does not apply in relation to the execution of works under the powers conferred by this Act.

(15) Paragraph 5(1) of that Schedule (effect of direction under paragraph 4 restricting further works) does not apply in relation to the execution of works under the powers conferred by this Act.

(16) The provisions of this paragraph apply in relation to a street for which the Secretary of State or a strategic highways company is the street authority only if the Secretary of State or the strategic highways company consents (and consent may be subject to conditions).

Permit schemes

3

(1) Nothing in Part 3 of the Traffic Management Act 2004 (permit schemes), or in any permit scheme or permit regulations under that Part, applies in relation to the carrying out of works under the powers conferred by this Act.

(2) This paragraph applies in relation to—

(a) a permit scheme under Part 3 of the 2004 Act in respect of a street for which the Secretary of State or a strategic highways company is the highway authority, or

(b) a permit scheme prepared by the Secretary of State under section 33(4) of the 2004 Act,

only if the relevant authority consents (and consent may be subject to conditions).

(3) “"The relevant authority”” means—

(a) in relation to a permit scheme mentioned in sub-paragraph (2)(a), the person who is the highway authority in respect of the street, and

(b) in relation to a permit scheme mentioned in sub-paragraph (2)(b), the Secretary of State.

SCHEDULE 25

Traffic authority to consult Secretary of State before making traffic regulation order

1

(1) This paragraph applies where—

(a) the traffic authority for a relevant road is a person other than the Secretary of State,

(b) the authority proposes to make a traffic regulation order in relation to the road, and

(c) it appears to the authority that provision made by the order could significantly interfere with the use of the road by heavy commercial vehicles for the purposes of the construction of Phase One of High Speed 2.

(2) Before making the order, the authority must consult the Secretary of State (in addition to any other person the authority is required to consult under or by virtue of Part 3 of Schedule 9 to RTRA 1984).

(3) In this paragraph—

“"heavy commercial vehicle”” has the same meaning as in RTRA 1984 (see section 138 of that Act);

“"relevant road”” means a road, other than a special road or trunk road, which falls within one or more of the following paragraphs—a road which is part of a route identified in a deposited statement as a construction traffic route;a road which is part of a route in relation to which approval has been given under paragraph 6 of Schedule 17 (routes for transportation by large goods vehicles);where a request for approval under paragraph 6 of Schedule 17 has been made but not determined, a road which is part of a route to which the request for approval relates;a road any part of which is within the Act limits.

(4) For the purposes of the definition of “"relevant road””, “"special road”” and “"trunk road”” have the same meanings as in the Highways Act 1980.

2

(1) The Secretary of State may by notice designate—

(a) a road, or part of a road, in relation to which paragraph 1(2) does not apply;

(b) a description of traffic regulation orders in relation to which paragraph 1(2) does not apply.

(2) A notice under sub-paragraph (1)(a) has effect until further notice.

(3) The Secretary of State must give a notice under sub-paragraph (1)(a) to the traffic authority for the road (or part of the road) to which the notice relates.

(4) A notice under sub-paragraph (1)(b) may have effect generally or in relation to areas specified in the notice.

(5) The Secretary of State must give a notice under sub-paragraph (1)(b) to every traffic authority which would be affected by the notice.

(6) Failure by a traffic authority to comply with paragraph 1(2) in relation to a traffic regulation order does not affect the validity of the order.

3

(1) Paragraph 1(2) ceases to apply in relation to a traffic authority if the Secretary of State gives the authority a notice stating that—

(a) no further works are proposed to be constructed under this Act in the authority's area, and

(b) the use of relevant roads in the authority's area is no longer required by heavy commercial vehicles for the purposes of the construction of Phase One of High Speed 2.

(2) Paragraph 1(2) ceases to apply in relation to a particular part of the area of a traffic authority (“"the relevant part””) if—

(a) the Secretary of State reasonably considers that the relevant part can be treated separately from the rest of the authority's area for the purposes of paragraph 1(2), and

(b) the Secretary of State gives the authority a notice stating that—

(i) no further works are proposed to be constructed under this Act in the relevant part, and

(ii) the use of relevant roads in the relevant part is no longer required by heavy commercial vehicles for the purposes of the construction of Phase One of High Speed 2.

(3) The Secretary of State must give a traffic authority a notice under sub-paragraph (1) or (2) as soon as reasonably practicable after the Secretary of State forms the view that the applicable requirements are met.

(4) For the purposes of sub-paragraph (3), the applicable requirements are met—

(a) in a sub-paragraph (1) case, if sub-paragraph (1)(a) and (b) apply in relation to the authority's area, and

(b) in a sub-paragraph (2) case, if sub-paragraph (2)(b)(i) and (ii) apply in relation to the relevant part.

(5) In this paragraph, “"heavy commercial vehicle”” and “"relevant road”” have the same meanings as in paragraph 1.

Power of Secretary of State to direct traffic authority to make traffic regulation order

4

(1) The Secretary of State may give a direction to a traffic authority requiring the authority to make a traffic regulation order if the Secretary of State considers that the making of such an order is—

(a) necessary for the purposes of the timely, efficient and cost-effective construction of Phase One of High Speed 2, and

(b) reasonable in the circumstances.

(2) Paragraph 1(2) does not apply (if it otherwise would) to the making of a traffic regulation order in pursuance of a direction under this paragraph.

(3) Where a traffic authority makes a traffic regulation order in pursuance of a direction under this paragraph (a ““relevant order””), the authority may not without the Secretary of State's consent make a further traffic regulation order which contains—

(a) provision varying or revoking the relevant order, or

(b) provision as respects any length of road for any purpose where—

(i) an order has been made as respects that length of road for a similar purpose, and

(ii) that order has been varied or revoked by the relevant order.

(4) The power to give a direction under this paragraph includes power to vary or revoke a previous direction given under this paragraph.

5

(1) This paragraph applies where, in pursuance of a direction under paragraph 4, a traffic authority is required to make an order under section 1, 6 or 9 of RTRA 1984.

(2) The order is to be treated for the purposes of Part 3 and paragraph 28 of Schedule 9 to RTRA 1984, and regulations made under Part 3 of that Schedule, as if it were required to be made in pursuance of a direction under paragraph 2 of that Schedule.

(3) The provisions mentioned in sub-paragraph (2) have effect accordingly, but as if—

(a) paragraph 26(1) of Schedule 9 to RTRA 1984 (which requires the Secretary of State to take account of objections) were omitted,

(b) for the purposes of the application of paragraph 28 of Schedule 9 to RTRA 1984 (provision about the variation or revocation of certain orders)—

(i) the reference in that paragraph to Part 2 of that Schedule included a reference to paragraph 4(3) of this Schedule, and

(ii) any reference in that Part to paragraph 13(1)(e) and (f) of that Schedule were read instead as a reference to paragraph 4(3) of this Schedule, and

(c) any provision in regulations made under Part 3 of Schedule 9 to RTRA 1984 relating to the holding of a public inquiry were omitted.

(4) Paragraph 35 of Schedule 9 to RTRA 1984 (provision for questioning validity of orders) has effect, in its application to the order, as if—

(a) the reference in sub-paragraph (a) to the relevant powers were to those powers as they apply in the case of an order made in pursuance of a direction under paragraph 4 above, and

(b) the reference in sub-paragraph (b) to the relevant requirements were to those requirements as modified by sub-paragraph (3) above.

6

(1) This paragraph applies where, in pursuance of a direction under paragraph 4, a traffic authority is required to make an order under section 14 of RTRA 1984.

(2) Section 15 of RTRA 1984 (duration of orders under section 14) does not apply to the order.

(3) The order has effect for the period specified or described in the direction.

(4) The period specified or described by virtue of sub-paragraph (3) must be such as the Secretary of State considers is reasonable for the purposes of the construction of Phase One of High Speed 2.

Further powers of Secretary of State (including in relation to variation or revocation of orders)

7

(1) The Secretary of State may direct a traffic authority to revoke a traffic regulation order made by the authority in pursuance of a direction under paragraph 4.

(2) The Secretary of State may direct a traffic authority to vary a traffic regulation order made by the authority in pursuance of a direction under paragraph 4, where—

(a) the Secretary of State considers that the variation is—

(i) necessary for the purposes of the timely, efficient and cost-effective construction of Phase One of High Speed 2, and

(ii) reasonable in the circumstances, or

(b) the effect of the variation is to remove or relax a restriction imposed by the order on the use of any road.

8

(1) Where a traffic authority fails to comply with a direction under paragraph 4, the Secretary of State may make the traffic regulation order required by the direction.

(2) Where a traffic authority fails to comply with a direction under paragraph 7, the Secretary of State may by order vary or revoke the traffic regulation order (as required by the direction).

9

(1) The Secretary of State may by order made by statutory instrument vary or revoke a traffic regulation order (whenever made) if the Secretary of State considers the variation or revocation—

(a) necessary for the purposes of the timely, efficient and cost-effective construction of Phase One of High Speed 2, and

(b) reasonable in the circumstances.

(2) This paragraph has effect without prejudice to the powers conferred on the Secretary of State by paragraphs 7 and 8.

10

(1) This paragraph applies to an order under paragraph 8 or 9.

(2) Paragraph 4 of Schedule 9 to RTRA 1984 (reserve powers of Secretary of State, including power to recover expenses) applies to the order as it applies to an order made by virtue of paragraph 3 of that Schedule.

(3) Parts 3 and 4 of Schedule 9 to RTRA 1984, and regulations made under paragraph 24 of that Schedule, apply to the order as they apply to an order made by virtue of the relevant paragraph of that Schedule, but as if—

(a) any provision in the regulations relating to the holding of a public inquiry were omitted, and

(b) for the purposes of the application of paragraph 28 of that Schedule (provision about the variation or revocation of certain orders)—

(i) the reference in that paragraph to Part 2 of that Schedule included a reference to paragraph 10(5) of this Schedule, and

(ii) any reference in that Part to paragraph 13(1)(e) and (f) of that Schedule were read instead as a reference to paragraph 10(5) of this Schedule.

(4) For the purposes of sub-paragraph (3), ““the relevant paragraph”” of Schedule 9 to RTRA 1984 is—

(a) in the case of an order under paragraph 8 of this Schedule, paragraph 3 of that Schedule, and

(b) in the case of an order under paragraph 9 of this Schedule, paragraph 7 of that Schedule.

(5) Where the Secretary of State makes an order to which this paragraph applies, the relevant authority may not without the Secretary of State's consent make a further traffic regulation order which contains—

(a) provision varying or revoking the Secretary of State's order, or

(b) provision as respects any length of road for any purpose where—

(i) an order has been made as respects that length of road for a similar purpose, and

(ii) that order has been varied or revoked by the Secretary of State's order.

(6) Paragraph 16 of Schedule 9 to RTRA 1984 (powers of Secretary of State where an order is submitted for consent) applies for the purposes of sub-paragraph (5) as if the further traffic regulation order had been submitted for consent under Part 2 of that Schedule.

Power to restrict traffic authority from making or implementing traffic regulation order

11

(1) The Secretary of State may give a direction to a traffic authority prohibiting the authority from making or bringing into operation a traffic regulation order (whenever made) if the Secretary of State considers that such an order could significantly interfere with the use of any road for the purposes of the construction of Phase One of High Speed 2.

(2) A prohibition imposed by virtue of this paragraph may be expressed—

(a) so as to have effect generally or for a period specified in the direction;

(b) so as to prohibit the making or bringing into operation of a traffic regulation order without the Secretary of State's consent.

(3) The power to give a direction under this paragraph includes power to vary or revoke a previous direction given under this paragraph.

Consultation requirements applicable to Secretary of State

12

(1) The Secretary of State must consult a traffic authority—

(a) before giving a direction to the authority under paragraph 4, 7 or 11, or

(b) before making an order under paragraph 8(2) or 9 in relation to a traffic regulation order made by the authority.

(2) The purpose of consultation is—

(a) to ensure public safety and, so far as reasonably practicable, to reduce public inconvenience, and

(b) to take account of the requirements (however expressed) to which the traffic authority is subject under an enactment or under an agreement or undertaking entered into in pursuance of an enactment.

Guidance

13

(1) The Secretary of State must prepare a statement setting out, in general terms—

(a) guidance in connection with the duty under paragraph 1(2) (which requires a traffic authority to consult the Secretary of State before making a traffic regulation order), and

(b) how the Secretary of State proposes to exercise the powers conferred on the Secretary of State by the preceding provisions of this Schedule.

(2) The Secretary of State may from time to time revise the statement.

(3) In preparing or revising the statement, the Secretary of Sate must consult—

(a) the nominated undertaker, and

(b) those traffic authorities which the Secretary of State considers are likely to be subject to the duty under paragraph 1(2) or to be affected by the exercise of the powers mentioned in sub-paragraph (1)(b) (or both).

Removal of vehicles

14

(1) An authorised person may remove a vehicle, or arrange for its removal, where conditions 1 and 2 are met.

(2) Condition 1 is that the vehicle has been permitted to remain at rest, or has broken down and remained at rest—

(a) on any road in contravention of a prohibition or restriction imposed by a traffic regulation order, or

(b) on any road which is stopped up under paragraph 2 or 6 of Schedule 4.

(3) Condition 2 is that it appears to the authorised person that the vehicle is likely, if it is not removed—

(a) to obstruct the carrying out of any of the works authorised by this Act, or

(b) to be at risk of being damaged in consequence of the doing of anything for the purposes of the construction of Phase One of High Speed 2.

(4) References in sub-paragraphs (1) and (3) to the removal of a vehicle are to its removal to another position on the road in question or to another road.

(5) Before exercising the power under sub-paragraph (1), an authorised person must give notice to—

(a) the local authority (as defined by section 100(5) of RTRA 1984) in whose area the vehicle is situated, and

(b) the chief officer of the police force in whose area the vehicle is situated.

(6) A person removing a vehicle under or by virtue of sub-paragraph (1) may do so—

(a) by towing or driving the vehicle, or

(b) in such other manner as the person thinks necessary,

and may take such measures in relation to the vehicle as the person thinks necessary to enable its removal.

(7) This paragraph is without prejudice to provision made by regulations under section 99 of RTRA 1984.

(8) In this paragraph—

“"authorised person”” means a person authorised by the nominated undertaker for the purposes of this paragraph;

“"vehicle”” has the same meaning as in section 99 of RTRA 1984.

Interpretation

15

In this Schedule—

“"road”” has the same meaning as in RTRA 1984 (see section 142(1) of that Act);

“"RTRA 1984”” means the Road Traffic Regulation Act 1984;

“"traffic authority”” has the same meaning as in RTRA 1984 (see section 121A of that Act);

“"traffic regulation order”” means an order section 1, 6, 9 or 14 of RTRA 1984.

SCHEDULE 26

Lorry ban orders

1

(1) In this Schedule “"lorry ban order”” means—

(a) the Greater London (Restriction of Goods Vehicles) Traffic Order 1985, or

(b) any other order made at any time under section 1, 6, 9 or 14 of the Road Traffic Regulation Act 1984 which to any extent imposes—

(i) a prohibition or restriction on the use of heavy commercial vehicles, or any class of such vehicles, in an area, zone or place, or on a road, specified in the order, or

(ii) a requirement that heavy commercial vehicles, or any class of such vehicles, use a specified through route.

(2) The reference in sub-paragraph (1)(b)(i) to a prohibition or restriction on the use of heavy commercial vehicles on a road does not include a prohibition or restriction on their use on part of the width of a road.

(3) It is immaterial for the purposes of sub-paragraph (1)(b) whether the prohibition, restriction or requirement is subject to exceptions.

(4) This paragraph applies in relation to a lorry ban order made by the Secretary of State or a strategic highways company only if the Secretary of State or the strategic highways company consents (and consent may be subject to conditions).

Required provision in lorry ban orders

2

(1) If a lorry ban order referred to in paragraph 1(1)(b) does not contain the required provision, it is to be treated as if it did.

(2) The required provision is provision to the effect that—

(a) a person proposing to use heavy commercial vehicles in connection with authorised works in a way which would otherwise constitute a breach of the prohibition, restriction or requirement referred to in paragraph 1(1)(b) may apply for the issue of a permit in respect of that use, and

(b) the use authorised by such a permit does not constitute a breach of the prohibition, restriction or requirement.

Issue of emergency permits

3

(1) This paragraph applies where a person proposes to undertake a journey before the end of the next complete eight working days, being a journey—

(a) proposed to be undertaken in connection with the carrying out of authorised works, and

(b) for which a permit under a lorry ban order is required if the prohibition, restriction or requirement is not to be breached.

(2) The person may apply for a permit under the lorry ban order for the journey by giving the details mentioned in sub-paragraph (3), by telephone or by electronic means, to the authority responsible for dealing with permits under the order.

(3) The details referred to above are—

(a) the identity of the applicant,

(b) how the applicant may be contacted by telephone or by electronic means,

(d) the authorised works in connection with which the journey is to be undertaken,

(e) whether any approved arrangements are relevant to the application and, if so, what they are,

(f) the date when the journey is proposed to be undertaken,

(g) in the case of an order made otherwise than by the Secretary of State or a strategic highways company, whether it is proposed to stop in the relevant area for delivery or collection purposes and, if so, the place or places and time or times at which it is proposed to do so, and

(h) in the case of an order made by the Secretary of State or a strategic highways company, such details of the place or places and time or times at which it is proposed to stop for delivery or collection purposes as may be set out in conditions attaching to consent given under paragraph 1(4).

(4) In sub-paragraph (3)(g) “"relevant area”” means—

(a) Greater London, if the area, zone, place or road specified in the order is in Greater London, and

(b) the area of the traffic authority, in any other case.

4

(1) An authority responsible for dealing with permits under a lorry ban order must make arrangements enabling applications under paragraph 3 to be made at any time.

(2) Once an application for a permit has been made under paragraph 3, then, for the purpose of any relevant journey, the application is to be treated as granted subject to such conditions as the Secretary of State may by order specify.

(3) A journey is a relevant journey for the purposes of sub-paragraph (2) if it is begun before the authority to which the application is made has communicated its decision on the application to the applicant by the means specified by the application under paragraph 3(3)(b).

(4) The power to make an order under sub-paragraph (2) includes—

(a) power to make different provision for different cases, and

(b) power to make an order varying or revoking any order previously made under that provision.

Grant of applications for permit

5

(1) This paragraph applies where an application for the issue of a permit under a lorry ban order—

(a) is made under paragraph 3, or

(b) is otherwise expressed to be made in connection with the carrying out of authorised works.

(2) The application must be granted if the issue of a permit is reasonably required—

(a) for the purpose of enabling authorised works to be carried out in a timely and efficient manner, or

(b) for the purpose of enabling authorised works to be carried out in accordance with approved arrangements.

(3) If the application is granted, no condition may be imposed which is likely to obstruct the carrying out of authorised works—

(a) in a timely and efficient manner, or

(b) in accordance with approved arrangements.

(4) An applicant aggrieved by a decision under sub-paragraph (2) or (3) may appeal to the Secretary of State by giving notice of the appeal to—

(a) the Secretary of State, and

(b) the authority whose decision is appealed against,

within 28 days of notification of the decision.

(5) On an appeal under sub-paragraph (4), the Secretary of State may allow or dismiss the appeal or vary the decision of the authority whose decision is appealed against.

(6) If, on an appeal under sub-paragraph (4) against a decision under sub-paragraph (3), the Secretary of State varies the decision, the variation has effect from and including the date on which the appeal was constituted or such later date as the Secretary of State may specify.

(7) The applicant may not challenge a decision under sub-paragraph (3) otherwise than by an appeal under sub-paragraph (4).

Supplementary interpretation

6

(1) In this Schedule—

“"approved arrangements”” means arrangements approved for the purposes of paragraph 6 of Schedule 17;

“"authorised works”” means works authorised by this Act;

“"electronic means”” includes email and the internet;

“"heavy commercial vehicle”” has the same meaning as in the Road Traffic Regulation Act 1984 (see section 138 of that Act);

“"traffic authority”” has the same meaning as in the Road Traffic Regulation Act 1984 (see section 121A of that Act);

“"working day”” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.

(2) In this Schedule references to the issuing of a permit include the giving of any consent.

SCHEDULE 27

Control of noise on construction sites

1

(1) In the Control of Pollution Act 1974, sections 60 (control of noise on construction sites) and 61 (prior consent for work on construction sites) each have effect, in relation to works carried out in exercise of the powers conferred by this Act, as if—

(a) in subsection (7) (appeal against notice or against failure to give consent or the giving of qualified consent), for “a magistrates' court” there were substituted “ the Secretary of State ”, and

(b) after that subsection there were inserted—

(7A) If within seven days of the giving of notice of appeal under subsection (7) of this section the appellant and the local authority so agree, the appeal shall, instead of being determined by the Secretary of State, be referred to arbitration.

(2) The Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly may, in relation to appeals which (by virtue of sub-paragraph (1)) are referred to arbitration under section 60(7A) or 61(7A) of the Control of Pollution Act 1974, by regulations make any such provision as may be made by regulations under section 70 of that Act in relation to appeals under Part 3 of that Act to the Secretary of State.

(3) Regulations under sub-paragraph (2) must be made by statutory instrument; and a statutory instrument containing such regulations is subject to annulment in pursuance of a resolution of either House of Parliament.

Defences to proceedings relating to statutory nuisance

2

In proceedings for an offence under section 80(4) of the Environmental Protection Act 1990 (offence of contravening abatement notice) in respect of a statutory nuisance falling within section 79(1)(g) or (ga) of that Act where the offence consists in contravening requirements imposed by virtue of section 80(1)(a) or (b) of that Act, it is a defence to show that the nuisance—

(a) is a consequence of—

(i) the construction or maintenance of the works authorised by this Act, or

(ii) the operation of Phase One of High Speed 2, and

(b) cannot reasonably be avoided.

3

(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990 (summary proceedings by person aggrieved by statutory nuisance) in relation to—

(a) a statutory nuisance falling within section 79(1)(g) of that Act (noise emitted from premises), or

(b) a statutory nuisance falling within section 79(1)(ga) of that Act (noise emitted by vehicle, machinery or equipment in a street),

no order may be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that sub-paragraph (2) or (3) applies.

(2) This sub-paragraph applies if the nuisance—

(a) relates to premises or, as the case may be, to a vehicle, machinery or equipment, used by the nominated undertaker for the purposes of or in connection with the exercise of the powers conferred by this Act with respect to works, and

(b) is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60, or a consent given under section 61 or 65, of the Control of Pollution Act 1974.

(3) This sub-paragraph applies if the nuisance—

(a) is a consequence of—

(i) the construction or maintenance of the works authorised by this Act, or

(ii) the operation of Phase One of High Speed 2, and

(b) cannot reasonably be avoided.

4

The following provisions of the Control of Pollution Act 1974—

(a) section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990), and

(b) section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded),

do not apply where the consent relates to the use of premises or, as the case may be, of a vehicle, machinery or equipment by the nominated undertaker for the purposes of or in connection with the exercise of the powers conferred by this Act with respect to works.

SCHEDULE 28

London Squares Preservation Act 1931 (c. xciii)

1

(1) Nothing in section 3 of the London Squares Preservation Act 1931 (protection of squares) has effect in relation to anything done for the purposes of or in connection with the exercise of the powers conferred by this Act with respect to works.

(2) Nothing in any agreement under section 9 of that Act (agreements between local authority and owner of a protected square) has effect to prohibit, restrict or impose any condition on the exercise of the powers conferred by this Act with respect to works.

London Overground Wires &c. Act 1933 (c. xliv)

2

Nothing in the London Overground Wires &c. Act 1933, or in any byelaw made under that Act, extends or applies to any wires or part of a wire erected or placed, proposed to be erected or placed, or for the time being maintained, by the nominated undertaker in exercise of the powers conferred by this Act.

London Building Acts (Amendment) Act 1939 (c. xcvii)

3

(1) The following provisions of the London Building Acts (Amendment) Act 1939 do not apply to anything held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act—

(a) Part 3 (construction of buildings and structures generally),

(b) Part 4 (construction of special and temporary buildings and structures), and

(2) Sub-paragraph (1) does not apply in relation to a building which is a house or a hotel.

(3) Sub-paragraph (1) does not apply in relation to a building which is used as offices or showrooms unless it forms part of a railway station or other railway facility.

(4) The reference in sub-paragraph (3) to a “"railway facility”” includes a maintenance depot, electrical supply facility or stabling facility used for the purposes of a railway.

West Midlands County Council Act 1980 (c. xi)

4

(1) Section 11 of the West Midlands County Council Act 1980 (floodlighting) does not apply to floodlighting provided for the purposes of or in connection with the exercise of the powers conferred by this Act with respect to works.

(2) Section 15 of that Act (dust) does not apply to building operations carried out in exercise of the powers conferred by this Act.

(3) Section 16 of that Act (noise from air-powered tools and compressors) does not apply to equipment used for the purposes of or in connection with the exercise of the powers conferred by this Act with respect to works.

(4) Section 21 of that Act (powers of entry for Prevention of Damage by Pests Act 1949) does not apply in relation to any land held by the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

(5) Section 46 of that Act (building plans: access for fire brigade) does not apply to plans relating to a building held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

(6) Part 7 of that Act (storage of flammable materials) does not apply in relation to a stack on land held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

(7) Section 84 of that Act (works erected etc over watercourses) does not apply to a work (as defined in that section) belonging to the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

Staffordshire Act 1983 (c. xviii)

5

(1) Section 7 of the Staffordshire Act 1983 (plans for new streets) does not apply to any work carried out in exercise of the powers conferred by this Act.

(2) Section 10(1)(b) of that Act (ornamental or mown land) does not apply to the use of a vehicle which is reasonably necessary—

(a) for the purposes of, or in connection with, the exercise of the powers conferred by this Act with respect to works, or

(b) for the purposes of the nominated undertaker's undertaking under this Act.

(3) Section 12 of that Act (dust) does not apply to building operations carried out in exercise of the powers conferred by this Act.

(4) Section 16 of that Act (powers of entry for Prevention of Damage by Pests Act 1949) does not apply in relation to any land held by the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

(5) Section 26 of that Act (building plans: access for fire brigade) does not apply to plans relating to a building held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

(6) Part 7 of that Act (storage of flammable materials) does not apply in relation to a stack on land held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.

Oxfordshire Act 1985 (c. xxxiv)

6

(1) Section 5(2)(a) of the Oxfordshire Act 1985 (grass verges and open spaces) does not apply to the use of a vehicle, or the leaving of a vehicle, which is reasonably necessary—

(a) for the purposes of, or in connection with, the exercise of the powers conferred by this Act with respect to works, or

(b) for the purposes of the nominated undertaker's undertaking under this Act.

(2) Section 10 of that Act (culverting of ditches) does not apply to anything done in exercise of the powers conferred by this Act with respect to works.

Greater London Council (General Powers) Act 1986 (c. iv)

7

The following provisions of the Greater London Council (General Powers) Act 1986 do not apply to anything done in exercise of the powers conferred by this Act with respect to works—

(a) section 5(1) (consent of borough council required for demolition of works under a street),

(b) section 6(1) (consent of borough council required for works preventing access to premises under a street), and

SCHEDULE 29

Highway (Railway Crossings) Act 1839 (c. 45)

1

The Highway (Railway Crossings) Act 1839 does not apply to a railway authorised by this Act.

Railway Regulation Act 1840 (c. 97)

2

(1) In its application to Phase One of High Speed 2, or a train all or part of whose journey is on Phase One of High Speed 2, section 16 of the Railway Regulation Act 1840 (obstruction of officers of railway company or trespass upon railway) has effect as if—

(a) the maximum fine which may be imposed on summary conviction of the offence for which it provides were level 3 on the standard scale (instead of level 1), and

(b) the court had, as an alternative to imposing a fine, the power to award imprisonment for a period not exceeding 51 weeks (in the case of an offence committed in England and Wales) or 12 months (in the case of an offence committed in Scotland).

(2) In relation to an offence committed in England and Wales before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in sub-paragraph (1)(b) to 51 weeks is to be read as a reference to one month.

Railway Regulation Act 1842 (c. 55)

3

Section 9 of the Railway Regulation Act 1842 does not apply to a railway authorised by this Act.

Railways Clauses Consolidation Act 1845 (c. 20)

4

(1) The following provisions only of the Railways Clauses Consolidation Act 1845 are incorporated with this Act, in so far as they are applicable for the purposes of this Act and not inconsistent with its provisions—

(2) In their application by virtue of sub-paragraph (1)—

(a) section 2 has effect with the substitution for ““so incorporated as aforesaid”” of ““incorporated””;

(b) section 6 has effect with the omission of ““and to take lands for that purpose””, ““taken or”” and ““for the value of the lands so taken or used, and””;

(c) sections 18 and 21 do not apply in any case where the relations between the nominated undertaker and any other person are regulated by sections 84 and 85 of the New Roads and Street Works Act 1991 or Part 2 of Schedule 33 to this Act (protective provisions relating to utility undertakers);

(d) section 46 has effect with the omission of the words from ““of the height”” to ““in that behalf provided””;

(e) section 68 has effect with the omission of the words from ““Such and”” to ““formation thereof”” and from ““together with all necessary gates”” to ““all necessary stiles””.

Railways Clauses Act 1863 (c. 92)

5

(1) Sections 4 and 12 of the Railways Clauses Act 1863 (and section 3 of that Act so far as relating to those sections) are incorporated with this Act, in so far as applicable for the purposes of this Act and not inconsistent with its provisions.

(2) In its application by virtue of sub-paragraph (1), section 4 has effect with the omission of—

(a) the words ““and subject to the limitations contained in sections eleven, twelve, and fifteen of those Acts respectively,””, and

(b) the words from ““Provided that nothing”” to the end.

Regulation of Railways Act 1889 (c. 57)

6

In its application to Phase One of High Speed 2, or a train all or part of whose journey is on Phase One of High Speed 2, section 5 of the Regulation of Railways Act 1889 has effect as follows—

(a) section 5(1) (failure to produce ticket, pay fare or give name and address) has effect as if the maximum fine which may be imposed on summary conviction of the offence for which it provides were level 2 on the standard scale (instead of level 1);

(b) section 5(2) (power to arrest passenger who fails to produce ticket and refuses to give name and address) has effect as if after ““refuses”” there were inserted “ or fails ”;

(c) section 5(3) (travel with intent to avoid payment of fare) has effect as if the maximum fine which may be imposed on summary conviction of the offence for which it provides were level 3 on the standard scale (instead of level 2).

British Transport Commission Act 1949 (c xxix)

7

(1) Section 55 of the British Transport Commission Act 1949 (penalty for trespass on railways etc) also applies in relation to any railway, siding, tunnel, railway embankment, cutting or similar work constructed in exercise of the powers conferred by this Act.

(2) Section 56 of that Act (penalty for stone throwing etc on railways) also applies in relation to any railway or siding constructed in exercise of the powers conferred by this Act.

North Pole Depot

8

(1) Clause 12 of the 1987 North Pole Depot undertaking (restriction on the operation of diesel locomotives on the site) does not apply in relation to—

(a) the western part of the site, or

(b) the use of any railway or siding on any other part of the site for the purposes of access to, or stabling in connection with, a depot on the western part of the site.

(2) For the purposes of this paragraph—

“"the 1987 North Pole Depot undertaking”” means the undertaking of the British Railways Board to the London Borough of Ealing and the London Borough of Hammersmith and Fulham in relation to a proposed North Pole Depot, dated 30 March 1987;

“"the site”” has the meaning given by clause 1 of the undertaking;

“"the western part of the site”” means any part of the site which is situated on land west of Scrubs Lane.

SCHEDULE 30

Directions as to results to be achieved

1

(1) This paragraph applies where a difference is referred under section 43(3) to arbitration.

(2) The parties must notify the Secretary of State of the referral without delay after the commencement of the arbitral proceedings.

(3) The Secretary of State may, on request or otherwise, direct the arbitrator as to results that are to be achieved by the agreement for which terms are to be determined by the arbitration.

(4) A direction under this paragraph may be made even though the making of the direction affects the outcome of proceedings to which the Secretary of State, or a body in which the Secretary of State has an interest, is a party.

(5) A request for a direction under this paragraph may be made by the arbitrator (as well as by a party).

(6) For the purpose of determining whether or not the arbitrator has to comply with a direction under this paragraph, the rule is that the arbitrator must comply with the direction in determining terms of the agreement if the direction—

(a) is relevant to the determination of those terms, and

(b) is given to the arbitrator before the award determining those terms is made.

(7) For the purpose of determining what the arbitrator has to do to comply with a direction under this paragraph, the rule is that the arbitrator must carry out the function of determining terms of the agreement so as to secure, so far as is reasonably practicable, that the results concerned are achieved by the agreement.

Directions as to consolidation and grouping of proceedings

2

(1) The Secretary of State may, on request or otherwise, direct—

(a) that a group of proceedings is to be consolidated, or

(b) that concurrent hearings are to be held in a group of proceedings.

(2) In sub-paragraph (1) “"group of proceedings”” means a group consisting of—

(a) section 43(3) proceedings, and

(b) any one or more of the following—

(i) other section 43(3) proceedings,

(ii) arbitral proceedings related to the proceedings mentioned in paragraph (a), and

(iii) arbitral proceedings related to section 43(3) proceedings that are to be consolidated with the proceedings mentioned in paragraph (a).

(3) A request for a direction under this paragraph may be made by the arbitrator or any of the arbitrators (as well as by a party).

(4) A direction under this paragraph must specify the terms on which the proceedings are to be consolidated or on which concurrent hearings are to be held.

(5) Where a direction under this paragraph provides for the consolidation of proceedings that do not all have the same arbitrator, the terms that may be specified in the direction include (in particular)—

(a) terms specifying the person who is to be the arbitrator in the consolidated proceedings;

(b) terms under which that person is to be determined.

(6) For the purposes of this section—

(a) “"section 43(3) proceedings”” means proceedings on arbitration of a difference referred under section 43(3), and

(b) arbitral proceedings are ““related”” to section 43(3) proceedings if—

(i) the arbitral proceedings are not section 43(3) proceedings,

(ii) at least one of the parties to the arbitral proceedings is also a party to the section 43(3) proceedings, and

(iii) the Secretary of State considers that the subject-matter of the arbitral proceedings is connected with the subject-matter of the section 43(3) proceedings.

SCHEDULE 31

Property, rights and liabilities

1

(1) The property, rights and liabilities that may be the subject of a transfer scheme include in particular—

(a) rights and liabilities relating to contracts of employment;

(b) property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the transferor;

(d) rights and liabilities under an enactment.

(2) A transfer scheme may—

(a) create rights or interests in relation to property for whose transfer the scheme provides or property retained by the transferor;

(b) create rights and liabilities as between the transferor and a transferee or as between different transferees.

(3) A transfer scheme may contain provision about enforcement, by or against any one or more of the transferor and the transferee or transferees, of a right or liability for whose transfer or creation the scheme provides.

(4) A transfer scheme may define the property, rights and liabilities to be transferred or property to be retained by the transferor—

(a) by specifying it or them;

(b) by describing it or them.

(5) A description of property, rights or liabilities may be framed in particular—

(a) by reference to the transferor's undertaking;

(b) by reference to a specified part of that undertaking.

2

The power under section 46 to make a scheme for the transfer of any property from one person (A) to another (B) may be exercised instead so as to make a scheme for the creation by A in favour of B of an interest in or right in relation to the property.

Transfer of employees and continuity of employment

3

(1) This paragraph applies where rights, powers, duties and liabilities relating to a person's contract of employment are transferred in accordance with a transfer scheme.

(2) The transfer does not break the continuity of the person's employment, and accordingly—

(a) the person is not to be regarded for the purposes of Part 11 of the Employment Rights Act 1996 (redundancy) as having been dismissed by virtue of the transfer, and

(b) the person's period of employment with the transferor counts, for the purposes of that Act, as a period of employment with the transferee.

4

(1) This paragraph applies where—

(a) a transfer scheme provides for the transfer of rights, powers, duties and liabilities relating to a person's contract of employment, but

(b) before the transfer takes effect, the person informs the transferor or transferee that the person objects to the transfer.

(2) Those rights, powers, duties and liabilities are not transferred to the transferee.

(3) The person's contract of employment is terminated immediately before the day on which the transfer would have occurred.

(4) The person is not, for any purpose, to be regarded as having been dismissed.

(5) Nothing in this paragraph affects the person's right to terminate the contract of employment if, apart from the change of employer, a substantial change is made to the person's detriment in his or her working conditions.

5

(1) If a transfer scheme provides for the transfer of rights, powers, duties and liabilities relating to a person's contract of employment, it may include provision with respect to the person's eligibility to become a member of a pension scheme by virtue of employment with the transferee.

(2) The transfer scheme may include provision with respect to rights of, or rights or liabilities in respect of, the person under—

(a) a pension scheme of which the person may become a member by virtue of employment with the transferee, or

(b) a pension scheme of which the person is a member by virtue of employment immediately before the transfer.

6

Where a person holds employment in the civil service of the State on terms which do not constitute a contract of employment—

(a) the person is to be treated for the purposes of this Schedule as employed under a contract of employment,

(b) the terms of the employment in the civil service of the State are to be treated for those purposes as the terms of that contract, and

(c) the reference in paragraph 4 to dismissal is to be read as a reference to termination of the employment in the civil service of the State.

Provision for contraventions etc to be treated as not occurring

7

(1) A transfer scheme may provide for a transfer to take effect as if there were no contravention or liability, or interference with any interest or right, that there would otherwise be as a result of a provision which has effect (whether under an enactment or agreement or otherwise) in relation to—

(a) the terms on which the transferor is entitled to the property or right for whose transfer the scheme provides, or

(b) the terms on which the transferor is subject to the liability for whose transfer the scheme provides.

(2) A transfer scheme may provide for the creation of an interest in or right in relation to property to take effect as if there were no contravention or liability, or interference with any interest or right, that there would otherwise be as a result of a provision which has effect (whether under an enactment or agreement or otherwise) in relation to—

(a) the terms on which the transferor is entitled to the property, or

(b) the terms on which a subsidiary of the transferor is entitled or subject to anything immediately before the creation of the interest or right takes effect.

8

(1) This paragraph applies where a transfer scheme provides for the transfer of shares in a subsidiary of the transferor.

(2) The scheme may provide for the transfer to take effect as if there were no contravention or liability, or interference with any right or interest, that there would otherwise be as a result of a provision which has effect (whether under an enactment or agreement or otherwise) in relation to the terms on which the subsidiary is entitled or subject to anything immediately before the transfer takes effect.

Power to modify interests, rights and liabilities of third parties

9

(1) A transfer scheme may modify interests, rights or liabilities of third parties in relation to anything to which the scheme relates.

(2) In sub-paragraph (1), “"third party””, in relation to a scheme, means a person other than the transferor or a transferee.

10

(1) Where a person would (apart from this paragraph) have a qualifying entitlement in consequence of—

(a) property, rights or liabilities having been, or being likely to be, transferred under a transfer scheme,

(b) interests, rights or liabilities having been, or being likely to be, created under a transfer scheme, or

that entitlement is enforceable, in consequence of the circumstances mentioned in paragraph (a), (b) or (c), only to the extent specified in the scheme.

(2) In this paragraph, “"qualifying entitlement””, in relation to a transfer scheme, means an entitlement—

(a) to terminate, modify, acquire or claim an interest or right to which the transferor, or a subsidiary of the transferor, is entitled or subject, or

(b) to treat an interest or right to which the transferor, or a subsidiary of the transferor, is entitled or subject as modified or terminated.

Obligations to enter into agreements or execute instruments

11

(1) A transfer scheme may contain provision for imposing, on the transferor or a transferee, obligations—

(a) to enter into agreements with persons specified in the scheme, or

(b) to execute instruments in favour of persons specified in the scheme.

(2) Any person may be specified by virtue of sub-paragraph (1)(a) or (b) (including the transferor or a transferee).

(3) Where a scheme contains provision for imposing an obligation of the kind mentioned in sub-paragraph (1)—

(a) the scheme must specify or describe the agreement or instrument to which the obligation relates, and

(b) the obligation may be enforced in any authorised way by the person—

(i) with whom the agreement is to be entered into, or

(ii) in favour of whom the instrument is to be executed.

(4) In sub-paragraph (3)(b), “"enforced in any authorised way”” means enforced—

(a) in civil proceedings for an injunction,

(b) in civil proceedings for any other appropriate remedy or relief, or

(5) The scheme may provide that sub-paragraph (4)(a) or (b)—

(a) does not apply in relation to the obligation, or

(b) applies in relation to the obligation subject to restrictions imposed by the scheme.

Supplementary provisions of schemes

12

(1) A transfer scheme may include consequential, supplementary, incidental, and transitional provision.

(2) That includes, in particular, provision—

(a) saving the effect of things done by or in relation to the transferor,

(b) for a transferee to be treated as the same person in law as the transferor,

(d) for things (including legal proceedings) being done by or in relation to the transferor to be continued by or in relation to a transferee, and

(e) for references in a document (other than in an enactment) to the transferor, or to an employee or office-holder of the transferor, to have effect with modifications specified in the scheme.

Effect of scheme

13

(1) At the time appointed for the purpose by a transfer scheme, property, rights and liabilities for whose transfer the scheme provides are transferred in accordance with the scheme.

(2) A scheme may appoint different times for the transfer of different things.

(3) References in this paragraph to the transfer of property, rights and liabilities include references to the creation of interests, rights or liabilities under paragraph 1 or 2 (and “"transferred””, in relation to property, rights or liabilities, is to be read accordingly).

Modification of scheme by agreement

14

(1) Where the transferor, and the transferee or transferees, under a transfer scheme so agree, the scheme is to be treated for all purposes as having been made with such modifications as may be agreed.

(2) Sub-paragraph (1) does not apply in the case of an agreement relating to rights and liabilities under a contract of employment unless the employee is a party to the agreement.

(3) Sub-paragraph (1) does not apply in the case of an agreement that adversely affects the property or rights of a person other than the transferor or a transferee unless that person is a party to the agreement.

(4) An agreement under sub-paragraph (1) may make—

(a) any provision that could have been contained in the scheme, and

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