The Felixstowe Branch Line and Ipswich Yard Improvement Order 2008

within 60 days of being notified by the company that it has incurred such expenses.

• (2) There shall be deducted from any sum payable under sub-paragraph (1) the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.

• (3) If in pursuance of the provisions of this Part of this Schedule—

• (a) apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, or

• (b) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which the existing apparatus was,

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the undertaker or, in default of agreement, is not determined by arbitration to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this paragraph would be payable to the company by virtue of sub-paragraph (1), shall be reduced by the amount of that excess.

• (4) For the purposes of sub-paragraph (3)—

• (a) an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; and

• (b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole shall be treated as if it also had been agreed or had been so determined.

Indemnity

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• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, maintenance or failure, including subsidence, resulting from any of the works referred to in paragraph 21(2) any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the company or there is any interruption in any service provided or in the supply or conveyance of any goods by the company, the undertaker shall—

• (a) bear and pay the cost reasonably incurred by the company in making good such damage or restoring the service, supply or conveyance; and

• (b) indemnify the company against all claims, demands, proceedings, costs, damages and expenses which may be made against, or recovered from, or incurred by it,

by reason or in consequence of any such damage or interruption or exercise by the undertaker of its powers conferred by this Order.

• (2) Nothing in sub-paragraph (1) shall impose any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of the company, its officers, servants, contractors or agents.

• (3) The company shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made without the consent of the undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand with such assistance from the company as may be reasonably necessary.

Payment for redundant apparatus

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• (1) Where, by reason of the stopping up of any highway pursuant to this Order, any apparatus belonging to the company and laid or placed in such highway or elsewhere is rendered derelict or unnecessary, the undertaker shall, subject to sub-paragraph (2), pay to the company the value of such apparatus (which shall then become the property of the undertaker) and the reasonable cost of and any costs incidental to the cutting off of such apparatus from any other apparatus, and of and incidental to the execution or doing of any works or things rendered necessary or expedient by reason of such apparatus being so rendered derelict or unnecessary.

• (2) The undertaker shall not under the provisions of this paragraph be required to pay to the company the value of any apparatus rendered derelict or unnecessary if, to the reasonable satisfaction of the company, other apparatus has at the expense of the undertaker been provided and laid and made ready for use in substitution for the apparatus so rendered derelict or unnecessary.

Existing enactments and agreements

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Nothing in this Part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the undertaker and the company in respect of any apparatus laid or erected in land belonging to the undertaker on the coming into force of this Order.

PART 3 — PROTECTION OF CABLE AND WIRELESS PLC

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• (1) The provisions of this Part of this Schedule shall have effect for the protection of C&W unless it is otherwise agreed in writing between the undertaker and C&W.

• (2) In this Part of this Schedule—

• “C&W” means Cable & Wireless Plc; and

• “public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003³⁹.

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The temporary stopping up or diversion of any street under article 10 (temporary stopping up of streets) shall not affect any right of a public communications provider under paragraph 9 of the Telecommunications Code (“the Code”), contained in Schedule 2 to the Telecommunications Act 1984⁴⁰ as amended by Schedule 3 to the Communications Act 2003, in respect of any apparatus which at the time of the temporary stopping up or diversion is in that street.

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If C&W suffers damage by reason or in consequence of the construction, use or failure of the authorised works or any subsidence resulting from those works, the undertaker shall pay the cost reasonably incurred by C&W in making good such damage, and shall indemnify C&W against claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from or incurred by C&W by reason or in consequence of any such damage, but—

• (a) nothing in this paragraph shall impose any liability on the undertaker with respect to any damage to the extent that such damage is attributable to any act or omission of C&W, its officers, servants, contractors or other agents; and

• (b) C&W shall give to the undertaker reasonable notice of any claim, demand or proceedings and shall make no settlement of any claim, demand or proceedings without the consent of the undertaker, such consent not to be unreasonably withheld.

32

Nothing in this Order shall affect any right of a public communications provider under the Code.

Signed

Signed by authority of the Secretary of State

Ellis Harvey — Head of the Transport and Works Act Orders Unit — Department for Transport — 23rd September 2008

Explanatory note

(This note is not part of the Order)

This Order authorises the Felixstowe Dock and Railway Company to construct and operate an additional railway line adjacent to part of the existing Felixstowe branch railway line in the Suffolk Coastal District, Suffolk and to construct and operate an improved marshalling yard in the vicinity of Ipswich Railway Station in the Borough of Ipswich, Suffolk.

A copy of the works and land plans, the sections and the book of reference may be inspected at the offices of the Felixstowe Dock and Railway Company, Port of Felixstowe, Tomline House, The Dock, Felixstowe, Suffolk IP11 3SY.

Footnotes