The Barking Barrage Order 1995

• (9) Byelaws made under this article may relate to the whole of the upstream river and the banks thereof, or to any part thereof, and may make different provisions for different parts.

• (10) Byelaws made under this article may provide for the imposition on any person offending against any byelaws of a fine on summary conviction not exceeding level 3 on the standard scale.

• (11) The Secretary of State may charge the Borough a reasonable fee for the purpose of defraying any administrative expenses incurred by him in respect of byelaws made under this article which are submitted to him for confirmation.

Temporary closure of upstream river

43

• (1) The Borough may temporarily prohibit, restrict or regulate the use and navigation of the upstream river or any part thereof to facilitate the holding of any boat race or regatta or of any other function in connection with the use of the upstream river as a place of recreation.

• (2)

• (a) Before exercising their powers under paragraph (1) the Borough shall give notice of the proposal to exercise the powers by advertisement in one or more local newspapers circulating in the area of the Borough.

• (b) The notice shall be published not less than 28 days before the powers are to be exercised and shall state the extent to which, the period during and the purpose for which the use and navigation of the upstream river is to be prohibited, restricted or regulated.

• (3) A copy of the notice published under paragraph (2) shall be conspicuously displayed in such one or more places on or adjacent to the upstream river or the part thereof to which it relates as the Borough consider appropriate for bringing its contents to the notice of persons using or navigating the upstream river.

• (4) The powers of this article shall not be exercised without the consent of the Port Authority and Redbridge, whose consent shall not in either case be unreasonably withheld, and any unresolved question whether such consent is unreasonably withheld shall be referred to and settled by arbitration.

• (5) When granting consent under this article the Port Authority or Redbridge may impose reasonable conditions.

• (6) Neither the Borough nor the Port Authority shall be liable for any costs, damages or expenses whatsoever incurred by any person (save as provided in Part VI) as a result, directly or indirectly, of any temporary prohibition, restriction or regulation on the use and navigation of the upstream river or any part thereof under paragraph (1).

Powers of statutory authorities

44

The powers and duties of the Port Authority, the River Authority and any other statutory authority under this Part of the Order shall only apply while that authority has jurisdiction in respect of the whole or any part of the upstream river.

List of charges

45

A list showing the charges prescribed in accordance with byelaws made under article 42 for the time being in force under this Part shall be displayed at one or more convenient places on or adjacent to the upstream river and a copy of the list shall be supplied, free of charge, by the Borough on request to any person appearing to have an interest.

Provision for charitable or other bodies

46

The Borough may at its discretion remit or reduce any charge shown in the list referred to in article 45 in respect of any houseboat or other vessel used for charitable purposes or for purposes which the Borough considers merit remission or reduction of the charge.

PART VI — PROVISIONS FOR THE PROTECTION OF THE PORT AUTHORITY

Works in upstream river

47

• (1) For the purposes of this article “plans” means outline design and construction drawings and such specifications and other appropriate documents (including so far as is reasonably practicable a programme of the times at which it is intended that significant operations will be carried out) as may be reasonably necessary to give the Port Authority an understanding of the Borough’s intentions in connection with constructional operations which will or may have a significant effect on navigation in, or the flow or regime of, the river and, where applicable such relevant hydraulic information about the river, including that obtained from models, as may be available to the Borough and is not already in the possession of the Port Authority.

• (2) Not later than 28 days before—

• (a) starting to carry out any tidal works; or

• (b) exercising any of the powers of article 7,

the Borough shall submit to the Port Authority plans thereof and such further particulars as may be available to the Borough and as the Port Authority may reasonably require and in carrying out such works or in exercising such powers, the Borough shall comply with all reasonable modifications and conditions (not involving alteration to the basic design of any tidal works), including the carrying out of such works by the Borough at their own expense, as may be specified by the Port Authority for the protection of traffic in, or the flow or regime of, the river:

Facilities for navigation

48

• (1) The Borough shall provide at the barrage, or afford reasonable facilities thereat, for the Port Authority to provide thereat, from time to time such navigational lights, signals, or other apparatus for the benefit, control and direction of navigation as the Port Authority may deem necessary by reason of the construction and use of the scheduled works, and the Borough shall repay to the Port Authority any costs reasonably incurred by the Port Authority in connection therewith or in connection with any information given to, and any surveillance, co-ordination and regulation of, river traffic which becomes reasonably necessary by reason of the construction of a tidal work or of the exercise or prospective exercise by the Borough of their powers to close the river or any part thereof to navigation under article 13 or to close the barrage gates under article 33.

• (2) The Borough shall repay to the Port Authority any costs reasonably incurred by the Port Authority in connection with any information given to, and surveillance, co-ordination and regulation of, river traffic which becomes reasonably necessary by reason of the actual or prospective temporary prohibition, restriction or regulation of the use and navigation of the upstream river or any part thereof under article 43.

Details to be submitted to Port Authority

49

On completion of the construction of the scheduled works the Borough shall supply to the Port Authority a plan on a scale of not less than 1 in 2500 and sections and cross-sections on a scale of not less than 1 in 100 showing the situation and levels of those works at that time.

Survey of river bed

50

• (1) Before the construction of the scheduled works is commenced, the Port Authority in conjunction with the Borough shall carry out a survey of such parts of the river as are relevant for the purpose of establishing the condition of the river at that time.

• (2) The Borough shall pay to the Port Authority such reasonable costs incurred by the Port Authority in carrying out—

• (a) the survey under this article; and

• (b) any surveys of the river required after the construction of the scheduled works has been completed to ascertain the effect of the scheduled works on the river,

as would not otherwise have been incurred.

• (3) The Port Authority will make available to the Borough, at reasonable charge, the results of the survey carried out under this article.

General protection

51

• (1) Except as otherwise expressly provided in this Order and except so far as may be necessary to enable the objects of this Order to be effected, nothing in this Order shall prejudice or derogate from the estates, rights, interests, privileges, liberties or franchises of the Port Authority or alter or diminish any power, authority or jurisdiction vested in the Port Authority at the commencement of this Order.

• (2) The exercise in under or over the river by the Borough of any function contained in this Order shall be subject to any enactment relating to or made by the Port Authority and the exercise by the Port Authority or its harbour master of any powers and functions conferred on it or him by or under any enactment save as may be specifically provided to the contrary in this Order.

Further protection of Port Authority

52

• (1) Compensation shall be payable to the Port Authority in respect of any authorised works in, under or over land below the mean high water mark and any rights acquired in connection therewith as if the Borough had been required to obtain a licence for those authorised works under section 66 (licensing of works) of the Act of 1968 and to pay consideration therefor determined in accordance with the provisions of section 67 (consideration for licence) of the Act of 1968 and the Port Authority may recover from the Borough the costs incurred by them in connection with the determination of such compensation.

• (2) If it is agreed between the Borough and the Port Authority after taking into account any relevant data or circumstances, or in default of agreement it is determined in pursuance of a reference by the Port Authority under article 80, that—

• (a) any part of the river has silted up or has been subjected to scouring;

• (b) such silting up or scouring is silting up or scouring to which the provisions of this paragraph apply;

• (c) for the safety of navigation or in the interests of persons using the river or for the protection of works in the river, such silting up or scouring should be removed or, as the case may be, made good; and

• (d) any other necessary consents have been obtained,

the Borough shall pay to the Port Authority (in the manner set out in paragraph (5)), any additional expense to which the Port Authority may reasonably be put in dredging the river to remove the silting up or in making good the scouring, in so far as it is attributable to a tidal work.

• (3) The provisions of paragraph (2) apply in relation to any silting up or scouring which is wholly or partly attributable to a tidal work during the period of the execution of those works and thereafter for a period of 10 years from the relevant date and shall then cease to apply in relation to any silting up or scouring which is wholly or partly attributable to the tidal work in question.

• (4) In paragraph (3) “the relevant date” means, in relation to the scheduled works and any other tidal work executed in connection therewith or incidental thereto, the date on which it is certified by the Engineer of the Borough that the works are substantially complete and the barrage gates are capable of being closed.

• (5) The Borough shall, if so required by the Port Authority, make payments to the Port Authority on account of any sum required to be paid in pursuance of paragraph (2), being payments of such amounts and made at such times as may be agreed between the Borough and the Port Authority or in default of agreement as may be determined by an arbitrator to be reasonable for meeting so much of the cost to the Port Authority in dredging the river or causing the river to be dredged, or in making good or in causing to be made good scouring to which the river has been subjected.

Power of the Borough to make good

53

• (1) The Borough shall be responsible for and make good to the Port Authority all costs, charges, damages and expenses not otherwise provided for in this Order and which may be reasonably incurred by or occasioned to the Port Authority—

• (a) by reason of the construction, alteration or repair of the authorised works or the failure thereof; or

• (b) by reason of any act or omission of the Borough or of any persons in its employ or of its contractors or agents or others whilst engaged upon the construction, alteration or repair of the authorised works.

and the Borough shall indemnify the Port Authority from and against all claims and demands arising out of or in connection with the authorised works or any such failure, act or omission as aforesaid and the fact that any act or thing may have been done by the Port Authority on behalf of the Borough or done by the Borough, any persons in its employ, or of its contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Port Authority or in a manner approved by the Port Authority or under its supervision or the supervision of its duly authorised representative shall not (if it was done or required without negligence on the part of the Port Authority or its duly authorised representative or of any person in its employ or of its contractors or agents) excuse the Borough from liability under the provisions of this article.

• (2) The Port Authority shall give to the Borough reasonable notice of any claim or demand as aforesaid, and no settlement or compromise thereof shall be made without the prior consent of the Borough.

• (3) If it is reasonably necessary as a result directly or indirectly of a tidal work—

• (a) to alter, remove, resite or reinstate any existing moorings;

• (b) to lay down and maintain or remove any new moorings; or

• (c) to construct and maintain a lay-by berth for vessels,

the Port Authority may recover from the Borough the reasonable cost to the Port Authority of carrying out those operations.

• (4)

• (a) If a tidal work is abandoned or suffered to fall into decay, the Port Authority may by notice in writing require the Borough at its own expense to exercise the option either of repairing and restoring the work or any part thereof, or of removing the work and restoring the site thereof to its former condition, to such an extent and within such limits as the Port Authority may reasonably require.

• (b) Where a work consisting partly of a tidal work and partly of works on land above the mean high-water level of spring tides is abandoned or suffered to fall into decay and that part of the work on land above the level of mean high-water level of spring tides is in such condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore, the Port Authority may include that part of the work, or any portion thereof, in any notice under this paragraph.

• (c) If on the expiration of such reasonable period as may be specified in a notice served under this paragraph upon the Borough it has failed to comply with the requirements of the notice, the Port Authority may itself exercise the option and execute the works specified in the notice and any expenditure incurred by it so doing shall be recoverable from the Borough as a simple contract debt.

Byelaws of the Port Authority

54

The powers of the Port Authority under section 162 (Thames byelaws) of the Act of 1968 shall be deemed to include a power to make byelaws, after consultation with the Borough, for or in connection with the management, regulation, direction and control of vessels passing or waiting to pass through the barrage:

Removal of piles, stumps and other obstructions

55

• (1) Any pile, stump or other obstruction which becomes exposed in consequence of a tidal work (other than a pile, stump or other obstruction situated on the site of any permanent works or forming part of the railway bridges over the upstream river) shall be removed from the river by the Borough or, if it is not reasonably practicable to remove it, shall be cut off at such level below the bed of the river as the Port Authority may reasonably direct.

• (2) If the Borough fail to remove from the river, or to cut off as aforesaid, any such pile, stump or other obstruction within 28 days of receipt of written notice from the Port Authority requiring its removal or cutting off, the Port Authority may carry out the removal or cutting off and recover the costs of so doing from the Borough.

• (3) Paragraphs (1) and (2) shall be subject to the provisions of article 75.

Free access

56

The Port Authority’s vessels and those of its agents shall be entitled to pass through the barrage and use the upstream river free of charge in the exercise of the Port Authority’s powers and duties.

PART VII — PROVISIONS FOR THE PROTECTION OF THE RIVER AUTHORITY

Interpretation

57

• (1) For the protection of the River Authority the provisions of this Part shall, unless otherwise agreed in writing between the Borough and the River Authority, have effect.

• (2) In this Part—

• “construction” includes execution, placing and altering and in relation to temporary works, includes removal; and “construct” and “constructed” have corresponding meanings;

• “drainage work” means any watercourse and includes any land used for providing flood storage capacity for any watercourse and any bank, wall, embankment or other structure or appliance constructed or used for defence against water (including sea water);

• “the fishery” means fish in, or migrating to or from, the River Thames or the river and the spawn, habitat or food of such fish;

• “fish pass” is a fish pass or passes incorporated in the barrage suitable for the upstream and downstream passage of migratory fish and eels;

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

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under or over a watercourse or is otherwise likely to— affect any drainage work or the volumetric flow rate of water in or flowing to or from any drainage work; affect the flow, purity or quality of water in any watercourse; cause obstruction to the free passage of fish in any watercourse; affect the conservation, distribution or use of water resources contained in the aquifer lying beneath the Borough; or affect the ability of the River Authority to fulfil its statutory duties in relation to the environment or recreation; and “watercourse” has the meaning given to it in section 72 of the Land Drainage Act 1991.

Approval of plans

58

• (1) Before beginning to construct any specified work, the Borough shall submit to the River Authority plans of the work and such further particulars available to them as the River Authority may reasonably require.

• (2) Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the River Authority, or settled by arbitration.

• (3) Any approval of the River Authority required under this article—

• (a) shall not be unreasonably withheld;

• (b) shall be deemed to have been given if it is neither given nor refused in writing and with a statement of the grounds for refusal within 2 months of the submission of plans for approval;

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

Conditions relating to works

59

• (1) Without prejudice to the generality of paragraph (3) of article 58, the requirements which the River Authority may impose under that paragraph include conditions requiring the Borough at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments) as are reasonably necessary to safeguard any drainage work against damage or to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased by reason of any specified work. Such conditions may address amongst other things the matters referred to in byelaw 4 of the Thames Water Authority Land Drainage Byelaws 1981.

• (2) Any specified work, and all protective works required by the River Authority under article 58, shall be constructed to the reasonable satisfaction of the River Authority and the River Authority shall be entitled by its officer to watch and inspect the construction of such works.

• (3) If by reason of the construction of any specified work the efficiency of any drainage work for flood defence purposes is impaired or that work is damaged, such impairment or damage shall, subject to article 75, be made good by the Borough to the reasonable satisfaction of the River Authority and, if the Borough fails to do so, the River Authority may make good the same and, subject to article 75, recover from the Borough the expense reasonably incurred by the River Authority in so doing.

Fish passes

60

• (1) Without prejudice to the other provisions of this Part, the Borough shall take all such measures as may be reasonably practicable to prevent any interruption in the passage of fish during or after the construction of any specified work, including the construction of a fish pass to the reasonable satisfaction of the River Authority, which the Borough shall maintain and monitor at its own expense and shall keep the same in an efficient state while the barrage is in place and shall ensure that the operation of the barrage facilitates the efficiency of the fish pass.

• (2) If by reason of the construction of any specified work the fishery is damaged, such damage shall, subject to article 75, be made good by the Borough to the reasonable satisfaction of the River Authority and, if the Borough fails to do so, the River Authority may make good the same and, subject to article 75, recover from the Borough the expense reasonably incurred by the River Authority in so doing.

Indemnities

61

• (1) The Borough shall indemnify the River Authority in respect of all costs, charges and expenses which the River Authority may reasonably incur or have to pay or which it may sustain—

• (a) in the examination or approval of plans under article 58, including work on the Borough’s proposals prior to the making of this Order; or

• (b) in the inspection of the construction of the specified works or any protective works required by the River Authority under this Part.

• (2) Without prejudice to the other provisions of this article, the Borough shall indemnify the River Authority from all claims, demands, proceedings, costs, damages, expenses or loss which may be made or taken against, or recovered from or incurred by, the River Authority by reason of—

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

• (b) any damage to the fishery;

• (c) any raising of the water table in land adjoining the works authorised by this Order or any sewers, drains and watercourses; or

• (d) any flooding or increased flooding of any such lands; or

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

which may wholly or in part be caused by, or result from, or may directly or indirectly result from, the construction of any of the authorised works or any act or omission of the Borough, its contractors, agents, workmen or servants whilst engaged upon any such work:

• Provided that the foregoing provisions of this paragraph shall not apply in relation to any injury or detriment sustained after the period of 10 years from the date on which it is certified by the Engineer of the Borough that the scheduled works are substantially complete and the barrage gates are capable of being closed.

• (3) The River Authority shall give to the Borough reasonable notice of any such claim or demand and no compromise or settlement thereof shall be made without the agreement of the Borough which agreement shall not be unreasonably withheld.

Liability of the Borough

62

The fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the River Authority, or to their satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve the Borough from any liability under the provisions of article 61.

Deemed consents

63

For the purposes of section 5 of the Metropolis Management (Thames River Prevention of Floods) Amendment Act 1879[^f00022] and section 109 of the Water Resources Act 1991 (as to structures in, over or under watercourses) as applying to the construction of any specified work, any consent or approval given or deemed to be given by the River Authority under this Part with respect to such construction shall be deemed also to constitute a consent or approval under those sections.

Powers of the River Authority

64

Except as otherwise provided by this Order, nothing in this Order shall prejudice or affect in their application to the River Authority the powers, rights, jurisdictions and obligations conferred, arising or imposed under the Land Drainage Act 1991, the Salmon and Freshwater Fisheries Act 1975, the Water Resources Act 1991 or any other enactment, byelaw or regulation relating to the River Authority.

PART VIII — PROVISIONS FOR THE PROTECTION OF THAMES WATER

Outfall surveys

65

• (1) In this Part—

• “outfall survey” means a survey conducted by the Borough or Thames Water of— the level of siltation within the outlet into the river of a relevant outfall; the level of siltation at the point or points on the river bed to be agreed between the Borough and Thames Water in the vicinity of any relevant outfall; the condition of the relevant outfall; and

• “relevant outfall” means a sewerage outfall system into the river identified by Thames Water as requiring survey on account of existing or likely siltation.

• (2) Prior to the commencement of the scheduled works, the Borough shall ask Thames Water to identify relevant outfalls which, following agreement by the Borough, shall be made subject to an outfall survey by Thames Water or the Borough, provided that the party not undertaking the survey shall be consulted as to the method and timing of the survey and shall receive a copy of the survey results within 28 days of the survey being completed.

• (3) The Borough shall monitor the level of the river bed in the vicinity of each relevant outfall in accordance with the survey timetable agreed or required by the River Authority in accordance with the Order and shall furnish Thames Water with the results of such monitoring. Should the results of such monitoring reveal siltation in the vicinity of any relevant outfall Thames Water may require an outfall survey of such outfall.

• (4) Should any relevant outfall or the river bed in the vicinity of such outfall be subject to siltation to a significantly greater depth than identified in any outfall survey undertaken in accordance with paragraph (2), to the effect that the performance of the outfall is significantly prejudiced and provided that the siltation is largely or completely due to the construction or operation of the barrage, then, subject to any necessary consents and to article 75, Thames Water may either require the Borough to clear the area concerned or undertake the work itself.

• (5) The cost of any work done in accordance with paragraph (4) shall be borne by the Borough to the extent that the siltation requiring clearance has been caused by the construction or operation of the barrage but otherwise by Thames Water. Should the said work be required partly on account of the barrage and partly by other causes the costs of such work may be apportioned between the Borough and Thames Water.

Monitoring of chalk aquifer water pressure levels

66

• (1) Prior to the commencement of the scheduled works, the Borough shall ask Thames Water to propose relevant observation boreholes and, upon agreement by the Borough (which may include adding to or varying the list), Thames Water may require the Borough to implement a detailed programme for the monitoring of chalk aquifer water pressure levels in the vicinity of the river, which shall include—

• (a) detailed monitoring by the Borough during the time of construction of the barrage and for a period of not longer than one year after practical completion of construction of the barrage;

• (b) access arrangements to the relevant observation boreholes to be made by Thames Water to enable the Borough to undertake the work;

• (c) the necessary computer facilities and programmes to be provided by the Borough with advice and assistance of Thames Water; and

• (d) arrangements for the Borough to circulate to Thames Water the results of monitoring.

• Provided that the Borough shall be consulted on the terms of the monitoring programme and shall comment thereon within 28 days of receiving a draft programme and Thames Water shall consider the Borough’s comments before implementation of the programme.

• (2) Should the results of monitoring indicate that, on account of the existence or operation of the barrage, there is an effect on the said chalk aquifer which is likely to be detrimental to the future operation of the public supply source abstracting ground water at East Ham pumping station at reference point TQ43748424, the Borough shall take steps as may be necessary to rectify the situation or compensate Thames Water for the loss of this source.

Indemnity

67

• (1) The Borough shall be responsible for and make good to Thames Water all reasonable costs, charges, damages and expenses which may be caused to or incurred by Thames Water by reason of the construction or operation of the barrage.

• (2) The Borough shall indemnify Thames Water from and against all claims arising out of or in connection with the construction or operation of the barrage.

• (3) Thames Water shall give to the Borough reasonable notice of any such claim or demand referred to in paragraph (2) and no settlement or compromise thereof shall be made without the prior consent of the Borough.

PART IX — OTHER PROTECTIVE PROVISIONS

Access to barrage

68

The Borough shall at all reasonable times, upon receipt on each occasion of not less than 48 hours' written notice, afford to any duly authorised representative of the Port Authority or the River Authority or the Port Health Authority access without payment or charge to the barrage or to a tidal work for the purposes of inspection and survey of the barrage or a tidal work in connection with the exercise of the Port Authority’s or the River Authority’s or the Port Health Authority’s functions and shall provide reasonable facilities therefor.

Saving for Trinity House

69

Nothing in this Order shall prejudice or derogate from any of the powers, rights or privileges, or the jurisdiction or authority of, Trinity House.

For protection of flora and fauna

70

The Borough shall consult English Nature as to measures which may be taken by the Borough to develop and, so far as may be consistent with the purposes of this Order, to conserve flora and fauna within the upstream river.

For protection of the Port Health Authority

71

• (1) Nothing in this Order shall prejudice, alter, affect or interfere with the functions, rights, liabilities, jurisdiction or authority of the Port Health Authority.

• (2) Not later than 28 days before—

• (a) starting to carry out any tidal work; or

• (b) exercising any of the powers of article 7,

the Borough shall submit to the Port Health Authority plans thereof and such further particulars as may be available to the Borough and as the Port Health Authority may reasonably require in respect of carrying out such works or in exercising such powers.

• (3) The Port Health Authority’s vessels and those of its agents shall be entitled to pass through the barrage and use the upstream river free of charge in the exercise of the Port Health Authority’s powers and duties.

For protection of Redbridge

72

• (1) If it appears to Redbridge that wholly or partly on account of the construction or operation of the barrage or the exercise by the Borough of any rights and powers granted by this Order any part of the upstream river within Redbridge has silted up, Redbridge may serve on the Borough a notice in writing requesting the Borough to remove all or any part of the relevant siltation by dredging in accordance with article 7. On receipt of such notice the Borough may either undertake the necessary dredging or dispute the applicability or terms of the notice, in which case if the matter cannot be resolved it shall be referred to arbitration in accordance with article 80.

• (2) If the Borough disputes a notice served by Redbridge in accordance with paragraph (1) it shall give written notice of such dispute to Redbridge within 28 days of receipt of the notice from Redbridge. If the Borough does not dispute the notice in such manner within 28 days, the Borough shall apply for any necessary consents in accordance with this Order or other legislation or rule of law within 42 days of the receipt of the notice from Redbridge and shall undertake any necessary consultations within the same time. The Borough shall undertake the work within 56 days of its receipt of all necessary consents provided that if any such consent has not been obtained or includes unreasonable conditions the matter shall be referred to arbitration. Following an arbitrator’s ruling requiring the Borough to carry out any dredging, the Borough shall undertake such dredging within 56 days of such ruling. Any time limit indicated in this paragraph may be extended by agreement between the Borough and Redbridge.

• (3) If the Borough fails to carry out any dredging which is required by paragraph (2), Redbridge shall be entitled to arrange for the necessary dredging to be carried out and to recover the reasonable cost thereof from the Borough.

• (4) The Borough shall provide Redbridge with the results of any survey of the river undertaken by the Borough in accordance with this Order.

• (5) The powers in this article are subject to article 74.

• (6)

• (a) The Borough shall be responsible for and make good to Redbridge all reasonable costs, charges, damages and expenses which may be caused, directly or indirectly to, or incurred by, Redbridge by reason of the construction or operation of the barrage or by reason of the exercise by the Borough of any of the rights and powers granted by this Order.

• (b) The Borough shall indemnify and hold Redbridge harmless from and against all claims arising out of or in connection with the construction or operation of the barrage or by reason of the exercise by the Borough of the rights and powers granted by this Order.

• (c) Redbridge shall give to the Borough reasonable notice of any such claim or demand referred to in paragraph (6)(b) and no settlement or compromise thereof shall be made without the prior consent of the Borough.

• (d) Any unresolved dispute which arises between the Borough and Redbridge in relation to this paragraph or its operation shall be determined by arbitration in accordance with the provisions of article 80.

Crown rights

73

• (1) Nothing in this Order affects prejudicially any estate, right, power, privilege or exemption of the Crown and in particular, and without prejudice to the generality of the foregoing, nothing in this Order shall authorise the Borough or any other person to take, use, enter upon or in any manner interfere with any land or hereditament or any rights of whatsoever description belonging to Her Majesty in right of the Crown and under the management of the Crown Estate Commissioners without the consent in writing of those Commissioners.

• (2) The powers vested in the Borough by articles 7 and 8 shall not be exercised in respect of any land in the upstream river in which there are Crown interests without the consent of the Crown Estate Commissioners.

• (3) Consent under this article may be given unconditionally or subject to such terms or conditions as shall be considered necessary or appropriate.

• (4) Consent under paragraph (1) or (2) shall be deemed to have been given for any work or operations on the river including surveying or monitoring, provided that:

• (a) any dredging, scouring or clearance of the river does not affect the river bed below levels to be established by survey within 28 days of commencement of the contract for construction of the barrage in accordance with article 3;

• (b) any dredging, scouring or clearance of the river shall not in any case involve the winning and working of minerals; and

• (c) if it appears to the Borough or any other person that either proviso (a) or (b) has been infringed in respect of the upstream river above Barking Millpool, that person shall inform the Crown Estate Commissioners as soon as possible.

For protection of the Railway Undertaker

74

• (1) In this article—

• “the railway survey” means a survey of the railway survey area in accordance with paragraph (2);

• “the railway bridges” means 2 bridges of the Railway Undertaker (Nos. 11 and 12) over the upstream river at Barking, bridge number 11 comprising 2 spans carrying respectively the London, Tilbury and Southend railway and the District Line railway of London Underground Limited and bridge number 12 carrying the Woodgrange Park to Barking railway; and

• “the railway survey area” means that part of the bed of the upstream river lying beneath and between the railway bridges and extending to a distance of 10 metres downstream of the south side of bridge number 11 and 10 metres upstream of the north side of bridge number 12.

• (2)

• (a) Before the construction of the scheduled works is commenced, the Railway Undertaker upon receipt of not less than 21 days' notice in writing from the Borough shall carry out the railway survey in consultation with the Borough with a view to establishing the levels of the river bed within the railway survey area and shall provide a copy of of the results of that survey to the Borough.

• (b) The reasonable costs of the Railway Undertaker in carrying out the railway survey shall be borne by the Borough.

• (3) At any time after the railway survey the Borough may clear or dredge the railway survey area to remove deposited material above the levels of the river bed as established in the railway survey provided that the Railway Undertaker is informed of such clearance or dredging and any other necessary consents are obtained.

• (4) The Borough shall not without the written consent of the Railway Undertaker, such consent not to be unreasonably withheld, clear or dredge below the levels of the river bed established by the railway survey.

• (5) Any unresolved matter arising from this article shall be referred to arbitration in accordance with article 80, provided that in any such reference, including cases where article 75 also applies, the arbitrator shall be an appointee of the President of the Institution of Civil Engineers.

Requirements and consents

75

• (1) In this Article “operations” means any works or operations and “consent” means any consent, permission or authorisation required in accordance with this Order or otherwise.

• (2) Where a requirement for the carrying out of any operations imposed on any person by virtue of this Order cannot be complied with without the consent of any other person—

• (a) the person required to carry out the operations shall use his best endeavours to obtain such consent as soon as reasonably practicable; and

• (b) if the relevant consent is refused or the terms imposed onerous or unreasonable to any party affected by the consent—

• (i) where such consent is required pursuant to this Order or does not involve an appeal or review procedure, then the matter shall be referred to arbitration under article 80; or

• (ii) where such consent is not based on this Order, and the procedures governing such consents involve any appeal or review procedure, then the person required to carry out the operations shall initiate such procedures and use his best endeavours to bring about an effective adjudication of the matter including taking legal proceedings if necessary;

• (c) no obligation to carry out any operations for which consent is required or to pay for work done in default by the person who has required operations to be done pursuant to this Order shall arise pending the grant of any necessary consent or adjudication of any relevant appeal, review, arbitration or litigation or if on such adjudication consent is refused.

PART X — MISCELLANEOUS AND GENERAL

Management arrangements

76

• (1) The Borough may enter into and carry into effect agreements with respect to the construction, maintenance, use, management and operation by any other person of all or part of the authorised works, lands, facilities, functions and activities comprising the undertaking of the Borough, including the upstream river as authorised by or established under, or in connection with, this Order, and any other matters incidental or subsidiary thereto or consequential thereon, including the defraying of, or the making of contributions towards, the cost thereof by the Borough or by any other person.

• (2) Any agreement under paragraph (1) may provide (inter alia) for the exercise of the powers of the Borough in respect of the undertaking authorised by this Order or any part or parts thereof.

• (3) The Borough may at any time lease any part of the undertaking authorised by this Order on such terms and conditions as may be agreed.

• (4) The exercise of the powers of any enactment by any person in pursuance of any agreement under paragraph (1) or any lease under paragraph (3) shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those powers were exercised by the Borough and in accordance with any restrictions, liabilities and obligations entered into by the Borough in connection with this Order.

• (5) The Borough shall not enter into any agreement or lease under this article—

• (a) without the consent of the Secretary of State; or

• (b) relating to Part IV or V, in so far as such agreement or lease relates to the upstream river within the limits of the Port Authority as defined in the Act of 1968, without the consent of the Port Authority, such consent not to be unreasonably withheld; or

• (c) relating to Part IV or V, without informing the River Authority.

Transfer of functions

77

• (1) At any time after the making of this Order the Borough may propose the transfer to any person of all or any part of the undertaking authorised by this Order or all or any of the functions conferred on the Borough by this Order. The proposal for any such transfer shall be made to the Secretary of State.

• (2) The Secretary of State shall consider the Borough’s proposal and may consent thereto with or without conditions or may refuse the proposal.

• (3) Prior to his determination of the proposal the Secretary of State may require the Borough to consult any interested party, in addition to the requirements of paragraph (5), and to undertake any necessary publicity or other reasonable steps.

• (4) Should the Secretary of State give his consent under paragraph (2), then thereafter, the person to whom the undertaking or part thereof or any functions are so transferred shall in relation thereto have and may exercise all or any of the powers conferred upon the Borough by this Order, to the extent that they are still subsisting and capable of taking effect, and shall be subject to all the restrictions, liabilities, duties and obligations to which the Borough is subject under this Order or which have been entered into by the Borough in connection with this Order in so far as they relate to the undertaking or part thereof or to the functions so transferred.

• (5) The Borough shall not make a proposal under this article—

• (a) transferring all or any part of the undertaking authorised by this Order or any of its functions under this Order to the Port Authority without the consent of the Port Authority as transferee; or

• (b) transferring any part of its undertaking relating to Parts II, IV and V of this Order or any of its functions under the said parts to any person other than the River Authority without the consent of the River Authority.

Obstructing execution of Order

78

A person who intentionally obstructs any person acting in the execution of this Order or without reasonable excuse pulls up any peg or stake driven into the ground for the purposes of setting out the line, level or site of any works authorised by this Order or otherwise intentionally or recklessly interferes with equipment or materials used in the construction of those works, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Defence of due diligence

79

• (1) In proceedings for an offence under the provisions of this Order mentioned in paragraph (2) it shall be a defence for the Borough to prove that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

• (2) The provisions referred to in paragraph (1) are the following—

• article 18; and

• article 20.

• (3) If in any case the defence provided under paragraph (1) involves the allegation that the commission of the offence was due to the act or default of another person, the Borough shall not, without leave of the court, be entitled to rely on that defence unless, not less than 7 clear days before the hearing, it has served on the prosecutor a notice in writing giving such information as was then in its possession, identifying or assisting in the identification of, that other person.

Arbitration

80

• (1) Unless otherwise provided in this Order and subject to paragraphs (2) and (3), any unresolved differences arising between the Borough and the River Authority, the Port Authority, the Port Health Authority, Redbridge, Thames Water, the Railway Undertaker or any other interested person shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be nominated by the Secretary of State on the application of either party after notice in writing to the other.

• (2) Paragraph (1) shall apply subject to article 74(5) and provided that, in respect of matters arising from Part VII, any arbitrator (subject to paragraph (3)) shall be nominated by the Minister of Agriculture, Fisheries and Food.

• (3) Where an unresolved difference arises between the Borough and the River Authority, Port Authority, the Port Health Authority, Redbridge, Thames Water, the Railway Undertaker or any other interested person in respect of the meaning or construction of any part of this Order, the same shall be referred to legal Counsel acting as arbitrator to be agreed between the parties or, in default of such agreement, to be appointed by the Chairman for the time being of the Bar Council for England and Wales on the application of either party after notice in writing to the other.

SCHEDULE 1 — DESCRIPTION OF THE SCHEDULED WORKS

In the London Borough of Barking and Dagenham—

• Work No 1. A barrage across the river with moveable barrage gates incorporating a fish pass, a weir and associated structures commencing on the western bank of the river at reference point TQ4405783303 and terminating on the eastern bank of the river at reference point TQ4410983314.

• Work No 2. Reconstruction of part of the river wall to the west of Work No 1.

• Work No 3. Buildings and structures on the land to the east of Work No 1.

SCHEDULE 2 — ACQUISITION OF CERTAIN LANDS

(1)	(2)	(3)
Area	Number of landshown on land plan	Purpose for which land may be acquired
London Borough of Barking and Dagenham	3	To construct the barrage, sector gates and associated river bed protection.
	1	To reconstruct the western river bank, facilitate connection of the barrage and to construct a security fence.
	2	Access to the scheduled works on Areas 1 and 3 to carry out repairs and maintenance to the authorised works.
	4	Access to the scheduled works on Areas 1 and 3 to carry out repairs and maintenance to the authorised works.

SCHEDULE 3 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1)	(2)	(3)	(4)
Area	Number of land shown on land plan	Purpose for which temporary possession may be taken	Authorised work or works
London Borough of Barking and Dagenham	2	Access to the western river bank to facilitate construction of the barrage.	Works Nos. 1 and 2
	4	Access along Fresh Wharf Road from Highbridge Road to Area 2.	Works Nos. 1 and 2

SCHEDULE 4 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1

The enactments for the time being in force with respect to compensation for the compulsory purchase of land shall apply with the necessary modifications as respects compensation in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2

• (1) Without prejudice to the generality of paragraph 1, the Land Compensation Act 1973 shall have effect subject to the modifications set out in sub-paragraphs (2) and (3) below.

• (2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the Act of 1965 as substituted by paragraph 4—

• (a) for the words “land is acquired or taken” there shall be substituted the words “a right over land is purchased”, and

• (b) for the words “acquired or taken from him” there shall be substituted the words “over which the right is exercisable”.

• (3) In section 58(1) (determination of material detriment where part of house etc. proposed for compulsory acquisition), as it applies to determinations under section 8 of the Act of 1965 as substituted by paragraph 5—

• (a) for the word “part” in paragraphs (a) and (b) there shall be substituted the words “a right over land consisting”;

• (b) for the word “severance” there shall be substituted the words “right over the whole of the house, building or manufacture or of the house and the park or garden”;

• (c) for the words “part proposed” there shall be substituted the words “right proposed”; and

• (d) for the words “part is”, there shall be substituted the words “right is”.

3

• (1) The Act of 1965 shall have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are to be read (according to the requirements of the particular context) as referring to, or as including references to—

• (a) the right acquired or to be acquired; or

• (b) the land over which the right is or is to be exercisable.

• (2) Without prejudice to the generality of sub-paragraph (1) above, Part I of the Act of 1965 shall apply in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

4

For section 7 of the Act of 1965 (measure of compensation) there shall be substituted the following section—

(7) In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

5

For section 8 of the Act of 1965 (which relates to cases in which a vendor cannot be required to sell part only of a building or garden) there shall be substituted the following—

(8) (1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufacture or of a park or garden belonging to a house (‘the relevant land’)— (a) a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Lands Tribunal (‘the tribunal’); and (b) before the tribunal has determined that question the person satisfies the tribunal that he has an interest which he is able and willing to sell in the whole of the relevant land and (i) where that land consists of a house, building or manufacture, that the right cannot be purchased without material detriment to that land, or (ii) where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs. the Barking Barrage Order 1994 (“the Order”) shall, in relation to that person, cease to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice shall be deemed to have been served in respect of that interest on such date as the tribunal directs. (2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section shall be determined by the tribunal. (3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of six weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of authority to withdraw the notice

6

The following provisions of the Act of 1965 (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

• (a) section 9(4) (failure by owners to convey)

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity)

• (c) paragraph 2(3) of Schedule 2 (absent and untraced owners), and

• (d) paragraph 2(3) and 7(2) of Schedule 4 (common land),

shall be so modified as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

7

Section 11 of the Act of 1965 (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority have served notice to treat in respect of any right, they have power, exercisable in the like circumstances and subject to the like conditions, to enter the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the Act of 1965 shall be modified correspondingly.

8

Section 20 of the Act of 1965 (protection for interests of tenants at will etc) shall apply with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

9

Section 22 of the Act of 1965 (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) shall be so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

SCHEDULE 5 — PROVISIONS RELATING TO STATUTORY UNDERTAKERS ETC.

Apparatus of statutory undertakers etc. on land acquired

1

• (1) Sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers etc. and power of statutory undertakers etc. to remove or re-site apparatus) shall apply in relation to any land acquired or appropriated by the Borough under this Order subject to the following provisions of this paragraph; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly.

• (2) In the provisions of the 1990 Act, as applied by sub-paragraph (1) above, references to the appropriate Minister are references to the Secretary of State.

• (3) Where any apparatus of public utility undertakers or of a public telecommunications operator is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1) above, any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the Borough compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given. (

• (4) Sub-paragraph (3) above shall not apply in the case of the removal of a public sewer but where such is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

• (a) the owner or occupier of premises the drains of which communicated with that sewer,

• or

• (b) the owner of a private sewer which communicated with that sewer,

shall be entitled to recover from the Borough compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of making his drain or sewer communicate with any other public sewer or with a private sewage disposal plant.

• (5) The provisions of the 1990 Act mentioned in sub-paragraph (1) above, as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which Part III of the New Roads and Street Works Act 1991 applies.

• (6) In this paragraph—

• “the 1990 Act” means the Town and Country Planning Act 1990;

• “public telecommunications operator” means— a person authorised, by a licence to which section 9 of the Telecommunications Act 1984 applies, to run a public telecommunications system, or a person to whom the telecommunications code has been applied pursuant to section 10 of that Act; and

• “public utility undertakers” has the same meaning as in the Highways Act 1980.

Signed

Signed by authority of the Secretary of State

Paul Beresford — Parliamentary Under-Secretary of State, — Department of the Environment — 2nd March 1995

Explanatory note

(This note is not part of the Order)

This Order, which is made under section 3 of the Transport and Works Act 1992, empowers the London Borough of Barking and Dagenham to construct a semi-tidal barrage with moveable control gates across the River Roding and to execute ancillary works, including dredging of the upstream river. The Order confers the necessary powers on the Borough, including powers to acquire the requisite land and rights by agreement or compulsorily.

• Other matters contained in the Order include— provisions to ensure that the safeguards of sections 25 and 109 of the Water Resources Act 1991, section 76 of the Port of London Act 1968 and section 9 of the Salmon and Freshwater Fisheries Act 1975, which are disapplied by the Order, are met, together with provisions for deemed licence or consent under sections 66 and 73 of the Port of London Act 1968 and Thames Water Land Drainage Byelaws 1981; provisions for closing the river to navigation temporarily during the construction of the works and for recreational purposes; provisions for the safety of navigation; provisions for the operation of the barrage and for the making of byelaws; and provisions protecting the interests of various interested bodies.

Copies of the plans, sections and other information relevant to this scheme are available for inspection during office hours at the office of the Chief Executive of the London Borough of Barking and Dagenham at the Town Hall, Barking, Essex RG11 7LU.

Footnotes

[^f00001]: 1992 c. 42.

[^f00002]: S.I. 1992/3230.

[^f00003]: 1965 c. 56.

[^f00004]: 1968 c. xxii.

[^f00005]: S. I. 1992/2902.

[^f00006]: 1980 c. 66.

[^f00007]: 1991 c. 22.

[^f00008]: 1968 c. 59.

[^f00009]: 1991 c. 59.

[^f00010]: 1984 c. 12.

[^f00011]: 1991 c. 57.

[^f00012]: 1975 c. 51.

[^f00013]: 1928 c. 32.

[^f00014]: 1975 c. 23.

[^f00015]: 1930 c. 51.

[^f00016]: 1971 c. 60.

[^f00017]: 1981 c. 67.

[^f00018]: 1981 c. 66.

[^f00019]: 1961 c. 33.

[^f00020]: 1990 c. 8.

[^f00021]: 1972 c. 70.

[^f00022]: 1879 c. ccxcviii.