The Nottingham Express Transit System Order 2009

• “apparatus” means— in the case of a specified undertaker which is an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989[^f00055]) belonging to or maintained by that undertaker; in the case of a specified undertaker which is a gas undertaker, mains, pipes or other apparatus belonging to or maintained by a gas transporter within the meaning of Part 1 of the Gas Act 1986[^f00056] for the purposes of the transportation and storage of gas; in the case of a specified undertaker which is a water undertaker— mains, pipes or other apparatus belonging to or maintained by the undertaker for the purposes of water supply; and any water main or service pipe (or part of it) that is the subject of an agreement to adopt made under section 51A of the Water Industry Act 1991[^f00057]; and in the case of a specified undertaker which is a sewerage undertaker— any drain or works vested in the undertaker under the Water Industry Act 1991; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104, and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure for the lodging in it of apparatus or for giving access to such apparatus;

• “construction” includes execution, placing, altering, replacing, relaying and removal and, in its application to works which include or comprise any operation, means the carrying out of that operation;

• “emergency works” has the same meaning as in section 52 of the 1991 Act;

• “in”, in a context referring to apparatus in land, includes under, over, across, along or upon land;

• “necessary alternative apparatus” means alternative apparatus adequate to enable a specified undertaker to fulfil its statutory or licensed functions in a manner no less efficient than previously;

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

• “specified undertaker” means— National Grid Gas Plc, whose registered office is 1-3 Strand, London WC2N 5EH; Severn Trent Water Limited, whose registered office is 2297 Coventry Road, Birmingham B26 3PU; and National Grid Electricity Transmission Plc, whose registered office is 1-3 Strand, London WC2N 5EH, or any person succeeding any such company as a licence holder within the meaning of Part 1 of the Electricity Act 1989, a gas transporter within the meaning of Part 1 of the Gas Act 1986, a water undertaker within the meaning of the Water Industry Act 1991 or as a sewerage undertaker within the meaning of Part 1 of that Act, and “the specified undertaker” in relation to any apparatus means the specified undertaker to whom the apparatus belongs or by whom it is maintained; and

• “specified work” means any of the authorised works which— will or may be situated over or within 15 metres measured in any direction of, or may in any way adversely affect, any apparatus; or wherever situated, imposes any load upon any sewer, the removal of which has not been required under paragraph 8.

Application of Schedule 11

2

Paragraphs 1(1) and 2 of Schedule 11 (provisions relating to statutory undertakers, etc.) shall not apply in relation to a specified undertaker and paragraphs 1(3) and 1(4) of that Schedule shall have effect as if they referred to apparatus removed under this Schedule.

Apparatus in stopped up streets

3

Where any street is stopped up under article 11 (stopping up of streets and extinguishment of rights), any specified undertaker whose apparatus is in the street shall have the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up and the promoter will grant to the specified undertaker legal easements reasonably satisfactory to the specified undertaker in respect of such apparatus and access to it, but nothing in this paragraph shall affect any right of the promoter or of the specified undertaker to require the removal of that apparatus under paragraph 8 or the power of the promoter to carry out works under paragraphs 20 to 29.

4

The promoter shall give not less than 28 days' notice in writing of its intention to stop up any street under article 11 to any specified undertaker whose apparatus is in that street.

On-street apparatus

5

This Schedule shall not apply to anything done or proposed to be done in relation to or affecting any apparatus in so far as the relations between the promoter and the specified undertaker are regulated by the provisions of Part 3 of the 1991 Act.

Acquisition of land

6

The promoter shall not acquire any apparatus from a specified undertaker pursuant to this Order otherwise than by agreement, which shall not be unreasonably withheld.

7

The promoter may in exercise of the powers conferred by this Order acquire or appropriate any land in which any apparatus is placed and, following the removal of such apparatus in accordance with the provisions of this Schedule, any rights in that land relating to that apparatus shall be extinguished but no apparatus shall be removed nor shall any right of the specified undertaker to use, maintain or renew any apparatus be extinguished until any necessary alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the specified undertaker.

Removal of apparatus

8

Paragraphs 9 to 12 apply where—

• (a) the promoter requires the removal of any apparatus for the purpose of constructing any of the authorised works and gives to the specified undertaker not less than 56 days' written notice of that requirement together with a plan of the proposed work and of the proposed position of the alternative apparatus to be provided or constructed; or

• (b) in consequence of the exercise or proposed exercise of any of the powers conferred by this Order, the specified undertaker reasonably requires to remove any apparatus.

9

The promoter shall, if it is practicable to do so, afford to the specified undertaker the necessary rights and facilities for the construction of any necessary alternative apparatus in other land which is available for the purpose and which is held or used, or intended for use, by the promoter for the purpose of its undertaking under this Order or in which it has sufficient rights or interests and thereafter for the use, maintenance and renewal of such apparatus and, if the promoter is unable to obtain those rights and facilities, the specified undertaker shall, on receipt of a written notice to that effect from the promoter, use its best endeavours to obtain the necessary rights and facilities.

10

The obligation imposed upon the specified undertaker by paragraph 9 shall not extend to the exercise by the specified undertaker of any power to acquire any land or rights in land by a compulsory purchase order.

11

Any alternative apparatus to be constructed by the specified undertaker pursuant to paragraph 9 shall be constructed in such manner, and in such line or situation, as may be agreed between the specified undertaker and the promoter or, in default of agreement, determined by arbitration.

12

The specified undertaker shall, after the manner of construction and the line or situation of any necessary alternative apparatus have been agreed or determined and after the grant to or obtaining by the specified undertaker of any such facilities and rights as are referred to in paragraph 9, proceed with all reasonable dispatch to construct and bring into operation the alternative apparatus and thereafter to remove any apparatus required by the promoter to be removed in accordance with paragraph 8.

Removal of apparatus and construction of alternative apparatus by the promoter

13

Paragraphs 14 to 16 apply to so much of the work necessary in connection with the construction of alternative apparatus, or the removal of apparatus required to be removed, as will take place in any land held or used, or intended for use, by the promoter for the purpose of its undertaking.

14

If the promoter gives notice in writing to the specified undertaker that it desires to carry out any part of any work to which this paragraph applies, such work, instead of being carried out by the specified undertaker, may be carried out by the promoter with the prior written consent of the specified undertaker (which shall not be unreasonably withheld and shall be subject to any such conditions as are reasonable and proper to protect the apparatus) in accordance with plans and in a position agreed between the specified undertaker and the promoter or, in default of agreement, determined by arbitration, with all reasonable dispatch under the superintendence (if given) and to the reasonable satisfaction of the specified undertaker.

15

In carrying out any work under paragraph 14 the promoter shall comply with all statutory obligations which would have been applicable had the works been carried out by the specified undertaker.

16

Nothing in paragraph 14 shall authorise the promoter to carry out the actual placing, erection, installation, bedding, packing, removal, connection or disconnection of any apparatus or, where the apparatus is laid in a trench, execute any filling around the apparatus within 600 millimetres (measured in any direction) of the apparatus.

Facilities and rights for alternative apparatus

17

Where, in accordance with the provisions of this Schedule, the promoter affords to the specified undertaker facilities and rights for the construction, use, maintenance and renewal in land of the promoter of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between the promoter and the specified undertaker or, in default of agreement, determined by arbitration.

18

In determining the terms and conditions mentioned in paragraph 17 in respect of alternative apparatus to be constructed across or along the authorised works the arbitrator shall—

• (a) give effect to all reasonable requirements of the promoter for ensuring the safety of the authorised works and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any such works; and

• (b) so far as it may be reasonable and practicable to do so in the circumstances of the case, give effect to any terms and conditions applicable to the apparatus (if any) constructed across or along the authorised works for which the alternative apparatus is to be substituted and to any other reasonable requirements of the specified undertaker.

19

If the facilities and rights to be afforded by the promoter in respect of any alternative apparatus under paragraph 17 and the terms and conditions subject to which the same are to be granted are, in the opinion of the arbitrator, more or less favourable on the whole to the specified undertaker than the facilities, rights, terms and conditions applying to the apparatus to be removed, the arbitrator shall make such provision for the payment of compensation to or by the promoter by or to the specified undertaker in that respect as shall appear to the arbitrator to be reasonable having regard to all the circumstances of the case.

Retained apparatus: protection and plan approval

20

Not less than 56 days before commencing to construct or renew any specified work, the promoter shall submit to the specified undertaker plans of the works.

21

In relation to a work which is a specified work because of its proximity to or effect on a sewer, the plans to be submitted to the specified undertaker under paragraph 20 shall be detailed plans describing—

• (a) the exact position of the specified work;

• (b) the level at which it is proposed to be constructed or renewed;

• (c) the manner of its construction or renewal;

• (d) the position of all sewers within 15 metres of the specified work or upon which the specified work will impose a load; and

• (e) by way of detailed drawings, every alteration proposed to be made to any such sewer.

22

The promoter shall not commence the construction or renewal of any specified work to which paragraph 20 applies until the specified undertaker has given written approval of the plans so submitted.

23

Any approval of the specified undertaker required under paragraph 22—

• (a) may be given subject to reasonable conditions for any purpose mentioned in paragraph 24;

• (b) shall not be unreasonably withheld; and

• (c) shall be deemed to have been given if it is neither given nor refused within 56 days of the submission of plans for approval.

24

In relation to a work to which paragraph 21 applies, the specified undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its sewerage system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any sewer.

25

A specified work shall be constructed (and in the case of any temporary work removed) only in accordance with—

• (a) the approved plans (and, in the case of plans relating to sewers approved, deemed to have been approved or settled by arbitration, as amended from time to time by agreement between the promoter and the specified undertaker); and

• (b) all reasonable requirements made by the specified undertaker for the alteration, or otherwise for the protection, of the apparatus, or for securing access to it,

and the specified undertaker shall be entitled by its officer to watch and inspect the carrying out of the work.

26

If within 42 days after the submission to it of any plans under paragraph 20, in consequence of the works proposed by the promoter the specified undertaker reasonably requires the removal of any apparatus and gives written notice to the promoter of that requirement, the foregoing provisions of this Schedule shall have effect as if the removal of such apparatus had been required by the specified undertaker under paragraph 8.

27

Nothing in paragraph 20 or 26 shall preclude the promoter from submitting at any time, or from time to time, but in no case less than 28 days before commencing the construction of any specified work, a new plan in place of the plan previously submitted, in which case the provisions of those paragraphs shall apply to, and in respect of, such new plan except that the reference in paragraph 26 to 42 days shall be treated as a reference to 21 days.

28

The promoter shall not be required to comply with paragraph 20 in a case where it is necessary to carry out emergency works but, in such a case, it shall give to the specified undertaker notice as soon as reasonably practicable, and a plan of the works as soon as reasonably practicable thereafter, and shall comply with paragraph 25 so far as reasonably practicable in the circumstances.

29

Nothing in paragraph 28 shall entitle the promoter to carry out works to any apparatus but, upon receipt of notice from the promoter, the specified undertaker shall proceed to carry out such works as may be required with all reasonable dispatch.

Co-operation

30

Where in consequence of the proposed construction of any of the authorised works, the promoter or a specified undertaker requires the removal of apparatus under paragraph 8 or a specified undertaker makes requirements for the protection or alteration of apparatus under paragraph 25, the promoter shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and each specified undertaker shall use its best endeavours to co-operate with the promoter for that purpose.

Access

31

If in consequence of the exercise of the powers conferred by this Order the access to any apparatus is materially obstructed the promoter shall provide such alternative means of access to such apparatus as will enable the specified undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

Expenses

32

Subject to the provisions of the following paragraphs of this Schedule, the promoter shall repay to the specified undertaker the reasonable expenses incurred by the specified undertaker in, or in connection with—

• (a) the inspection, removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus under any provision of this Schedule (including any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or exercise of statutory powers for such apparatus);

• (b) the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus in consequence of the exercise by the promoter of any power under this Order;

• (c) the survey of any land, apparatus or works; the inspection, superintendence and monitoring of works; or the installation or removal of any temporary works reasonably necessary in consequence of the exercise by the promoter of any power under this Order; and

• (d) any other work or thing rendered reasonably necessary in consequence of the exercise by the promoter of any such power,

within a reasonable time of being notified by the specified undertaker that it has incurred such expenses.

33

There shall be deducted from any sum payable under paragraph 32 the value of any apparatus removed under the provisions of this Schedule, that value being calculated after removal.

34

If in pursuance of the provisions of this Schedule—

• (a) alternative apparatus of better type, or greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, except where this has been solely due to using the nearest currently available type; or

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

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 promoter or, in default of agreement, is not determined by arbitration to be necessary having regard, among other things, to the nature of the authorised works, then, if such placing involves cost in the construction of works under paragraphs 9 to 12 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 specified undertaker by virtue of paragraph 32 shall be reduced by the amount of that excess.

35

For the purposes of paragraph 34—

• (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 except in a case where the apparatus as so extended serves a purpose (either additional to or instead of that served by the existing apparatus) which was not served by the existing apparatus; and

• (b) where the provision of a joint in a pipe or 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.

36

An amount which apart from this paragraph would be payable to the specified undertaker in respect of works by virtue of paragraphs 32 to 35 shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the specified undertaker any financial benefit by deferment of the time for renewal of the apparatus or of the system of which it forms part in the ordinary course, be reduced by the amount which represents that benefit as calculated in accordance with the Code of Practice entitled “Measures Necessary where Apparatus is Affected by Major Works (Diversionary Works)” and dated June 1992 and approved by the Secretary of State on 30th June 1992, as revised and re-issued from time to time.

37

In any case where work is carried out by the promoter pursuant to paragraphs 14 to 16 and, if such work had been carried out by the specified undertaker, the repayment made to the specified undertaker under paragraph 32 would fall to be reduced pursuant to paragraphs 34 to 36, the specified undertaker shall pay to the promoter such sum as represents the amount of that reduction.

Indemnity

38

If, by reason or in consequence of the construction, maintenance or failure of any of the authorised works, including any works carried out by the promoter pursuant to paragraph 14 or protective works required by a condition imposed under paragraph 23(a) or required under paragraph 25(b), or any subsidence resulting from any of those works, 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 other property of the specified undertaker, or there is any interruption in any service provided by the specified undertaker, the promoter shall repay the cost reasonably incurred by the specified undertaker in making good such damage, or restoring the supply, and shall—

• (a) make reasonable compensation to the specified undertaker for any loss sustained by it; and

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

by reason or in consequence of any such damage or interruption; and the fact that any act or thing may have been done by the specified undertaker on behalf of the promoter or in accordance with plans approved by the specified undertaker or in accordance with any requirement of the specified undertaker or under its supervision shall not, subject to paragraph 39, excuse the promoter from any liability under the provisions of this paragraph.

39

Nothing in paragraph 38 shall impose any liability on the promoter with respect to any damage or interruption to the extent that such damage or interruption is attributable to the neglect or default of the specified undertaker, its officers, servants, contractors or other agents.

40

The specified undertaker shall give to the promoter reasonable notice of any claim or demand under the provisions of paragraph 38 and no settlement or compromise of it shall be made without the prior consent of the promoter which shall not be unreasonably withheld.

Exercise of safeguarding and survey powers

41

The promoter shall, so far as is reasonably practicable, so exercise the powers conferred by article 22 (safeguarding works to buildings) so as not to obstruct or render less convenient the access to any apparatus.

42

The promoter shall not, in the exercise of the powers conferred by section 11(3) of the 1965 Act, as applied by this Order, or by article 25 (power to survey and investigate land, etc.), make any trial holes which interfere with any apparatus without the consent of the specified undertaker (which shall not be unreasonably withheld).

Arbitration

43

Any difference arising between the promoter and a specified undertaker under this Schedule (other than a difference as to its meaning or construction) shall be determined by arbitration in the manner provided by article 82 (arbitration) and in determining any difference under this Schedule the arbitrator may, if the arbitrator thinks fit, require the promoter to execute any temporary or other works so as to avoid, so far as may be reasonably possible, interference with the use of any apparatus.

Transfer of functions

44

The promoter shall give notice to every specified undertaker if any of the functions of the promoter under this Order are transferred to another person in accordance with article 55 (powers of disposal, agreements for operation, etc.) and any such notice shall be given within 14 days of any such transfer becoming effective and shall describe or give (as appropriate)—

• (a) the nature of the functions to be transferred;

• (b) the extent of that transfer;

• (c) the geographical area to which the transfer relates;

• (d) the name and address of the transferee; and

• (e) the effective date of the transfer.

45

The obligation to give notice under paragraph 44 to a successor in title to a specified undertaker named in paragraph 1 shall only apply to the extent that the promoter has been informed by notice in writing by that named undertaker, or by a successor in title to that named undertaker, as the case may be, of the name and address of that successor in title.

Notices

46

Any notice in writing to be given by the promoter to a specified undertaker under this Schedule shall be deemed effectively given if sent by recorded delivery or by registered letter addressed to the registered office of that specified undertaker.

Accommodation or other facilities

47

The following provisions of this paragraph shall have effect for the provision by the promoter in the construction of the authorised works of accommodation or other facilities for the laying of apparatus under the authorised tramway to accommodate the gas distribution network of National Grid Gas Plc and the electricity transmission network of National Grid Electricity Transmission Plc:—

• (a) not less than 6 months before the promoter commences the construction of any of the authorised works in any highway it shall give notice of its intention to do so in writing to each of National Grid Gas Plc and National Grid Electricity Transmission Plc;

• (b) if, within 56 days from the service on it of notice of the intended construction of any works under sub-paragraph (a), National Grid Gas Plc or National Grid Electricity Transmission Plc gives to the promoter—

• (i) notice in writing that it is reasonably necessary for the existing operation or planned expansion of its respective gas distribution or electricity transmission networks that such accommodation or other facilities be provided; and

• (ii) such information as the promoter may require to enable it to determine the reasonableness of that request, the extent and description of the accommodation or other facilities to be provided and the means of access to apparatus laid in the accommodation or other facilities requested,

the promoter shall, so far as it is reasonably practicable to do so, provide in the construction of the authorised works such accommodation or other facilities for the laying of apparatus under the authorised tramway as may be agreed between it and National Grid Gas Plc or National Grid Electricity Transmission Plc, as the case may be or, in default of agreement, determined by arbitration;

• (c) subject to the provisions of this paragraph, National Grid Gas Plc and National Grid Electricity Transmission Plc shall be entitled to use the accommodation or other facilities and the means of access to them provided by the promoter for the laying and installation of the apparatus for which they were provided and for the purpose of inspecting, repairing, removing or renewing that apparatus;

• (d) except in case of emergency when it shall give such notice as it can in the circumstances, National Grid Gas Plc and National Grid Electricity Transmission Plc shall give the promoter not less than 42 days' notice of their intention to lay and install or to repair, remove or renew apparatus in any such accommodation or facilities;

• (e) in laying and installing apparatus in accommodation or other facilities provided by the promoter National Grid Gas Plc and National Grid Electricity Transmission Plc shall conform with the reasonable requirements of the promoter as to the times at which, and the manner in which, such works by National Grid Gas Plc or National Grid Electricity Transmission Plc as affect the authorised tramway shall be carried out, and the promoter shall be entitled to superintend the carrying out of such works;

• (f) National Grid Gas Plc and National Grid Electricity Transmission Plc shall maintain in good repair and to the reasonable satisfaction of the promoter any apparatus laid and installed in the accommodation or facilities provided by the promoter and shall take such precautions as the promoter reasonably requires to be taken for ensuring the safety of the authorised tramway and the traffic on it;

• (g) the accommodation or other facilities provided by the promoter shall be maintained by the promoter to the reasonable satisfaction of National Grid Gas Plc and National Grid Electricity Transmission Plc; and

• (h) except in case of emergency when it shall give such notice as it can, the promoter shall give to the National Grid Gas Plc and National Grid Electricity Transmission Plc not less than 42 days' notice in writing of its intention to carry out any works affecting any such accommodation or other facilities and, in carrying out the same, shall take such measures as National Grid Gas Plc and National Grid Electricity Transmission Plc may reasonably require for the protection of, or for preventing interference with, its apparatus laid or installed in the accommodation or other facilities.

SCHEDULE 13 — FOR PROTECTION OF BRITISH WATERWAYS BOARD

1

For the protection of the British Waterways Board the following provisions shall, unless otherwise agreed in writing between the promoter and the British Waterways Board, have effect.

Interpretation

2

In this Schedule—

• “the Board” means the British Waterways Board;

• “the Board’s network” means the Board’s network of waterways;

• “construction”, in relation to any specified work or protective work, includes— the execution and placing of that work; and any relaying, alteration, renewal or maintenance of that work; and

• “construct” and “constructed” have corresponding meanings;

• “detriment” means any damage to a waterway or any other property of the Board and, in particular, includes— any obstruction of, or interference with, or hindrance or danger to, navigation or to any use of a waterway; the erosion of the bed or banks of a waterway, or the impairment of the stability of any works, lands or premises forming part of a waterway; the siltation of a waterway or the deposit of materials in, so as to materially damage the waterway; the pollution of a waterway; any material alteration in the water level of a waterway, or material interference with the supply of water to a waterway, or drainage of water from a waterway; any material harm to the ecology of a waterway (including any material adverse impact on any site of special scientific interest comprised in the Board’s network); and any interference with the exercise by any person of rights over the Board’s network;

• “the engineer” means an engineer appointed by the Board for the purpose in question;

• “plans” includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction) and programmes;

• “protective work” means a work constructed under paragraph 8(3)(a);

• “specified work” means so much of any of the authorised works (including any temporary closure or other operation carried out in connection with an authorised work) as is situated upon, across, under, over or within 15 metres of, or may in any way affect, a waterway;

• “stoppage season” means the period between 1st November and 15th March; and

• “waterway” means the canal or the River Trent and includes any work, structure, land or premises belonging to the Board, or under its management or control, and held or used by the Board in connection with the canal or the River Trent.

Powers requiring the Board’s consent

3

• (1) The promoter shall not under the powers conferred by this Order acquire compulsorily any land of the Board relating to a waterway or any easement or other right over such land, or use any such land, unless such acquisition or use is with the consent of the Board.

• (2) The promoter shall not exercise the powers conferred by article 6(7)(a) (power to deviate) so as to deviate from the design of the bridge comprised in Work No.12 shown on the sections except with the consent of the Board.

• (3) The promoter shall not in the exercise of the powers conferred by this Order, including article 12 (temporary stopping up of streets), obstruct or interfere with pedestrian or vehicular access to—

• (a) a waterway; or

• (b) any way over land comprised in a waterway,

unless such obstruction or interference with such access is with the consent of the Board.

• (4) Nothing in article 21 (discharge of water) shall authorise the promoter—

• (a) to discharge any water directly or indirectly into a waterway; or

• (b) to carry out any works to, or make any opening in, or otherwise interfere with, a waterway (including its banks and bed),

except with the consent of the Board and in accordance with plans approved by, and under the supervision (if given) of, the engineer.

• (5) The promoter shall not exercise any power conferred by this Order in such a way as to interfere with the supply of water to or the drainage of water from a waterway unless such exercise is with the consent of the Board.

• (6) The promoter shall not exercise the powers conferred by article 22 (safeguarding works to buildings), article 25 (power to survey and investigate land, etc.), or the powers conferred by section 11(3) of the 1965 Act, in relation to a waterway unless such exercise is with the consent of the Board.

• (7) The promoter shall not exercise the powers conferred by section 271 or 272 of the 1990 Act, as applied by Schedule 11 (provisions relating to statutory undertakers, etc.), so as to divert any right of access to a waterway, but such right of access may be diverted with the consent of the Board.

• (8) The consent of the Board pursuant to sub-paragraphs (1) to (7) and the approval of plans under sub-paragraph (4) shall not be unreasonably withheld or delayed but may be given subject to reasonable terms and conditions which, in the case of article 21, may include conditions—

• (a) specifying the maximum volume of water which may be discharged in any period;

• (b) authorising the Board on giving reasonable notice to the promoter (except in an emergency, when the Board may require immediate suspension) to require the promoter to suspend the discharge of water or reduce the flow of water where this is necessary by reason of any operational requirement of the Board; and

• (c) in the case of a discharge, concerning the reimbursement by the promoter of expenses reasonably incurred by the Board in disposing of the water so discharged, being expenses which the Board would not have incurred but for the discharge.

Vehicles, plant and machinery

4

• (1) The promoter shall not use any land or property of the Board forming part of a waterway for the passage or siting of vehicles, plant or machinery employed in the construction of the specified works other than—

• (a) with the consent in writing of the engineer, whose consent shall not be unreasonably withheld; and

• (b) subject to compliance with such reasonable requirements as the engineer may from time to time specify—

• (i) for the prevention of detriment; or

• (ii) in order to avoid or reduce any inconvenience to the Board, its officers and agents and all other persons lawfully on such land or property,

but nothing in this paragraph shall apply in relation to anything done in accordance with any approval given by the Board under paragraph 8.

Closure of towing paths, etc.

5

If in consequence of or in connection with the exercise of the powers conferred by this Order any part of a towing path or any public right of way giving access to it (“the closed section”) is temporarily closed to persons on foot, on cycles or in a wheelchair and there is no way which provides a reasonable alternative, the promoter shall, if reasonably practicable and to the reasonable satisfaction of the Board, provide in substitution a sufficient and convenient way for such persons between the points of commencement and termination of the closed section for such time as the closure continues.

Fencing

6

Where so required by the engineer the promoter shall to the reasonable satisfaction of the engineer fence off a specified work or a protective work or take such other steps as the engineer may require to be taken for the purpose of separating a specified work or a protective work from a waterway, whether on a temporary or permanent basis or both.

Survey of waterway

7

• (1) Before the commencement of the initial construction of any part of the specified works and again following completion of the specified works the promoter shall bear the reasonable cost of the carrying out by a qualified engineer (“the surveyor”), to be approved by the Board and the promoter, of surveys (“the surveys”) of so much of any waterway and of any land and existing works of the promoter as may provide support for the waterway as will or may be affected by the specified works.

• (2) For the purposes of the surveys the promoter shall—

• (a) on being given reasonable notice (except in case of emergency, when immediate access shall be afforded) afford reasonable facilities to the surveyor for access to the site of the specified works and to any land and existing works of the promoter which may provide support for the waterway as will or may be affected by the specified works; and

• (b) supply the surveyor as soon as reasonably practicable with all such information as the surveyor may reasonably require with regard to such existing works of the promoter and to the specified works or the method of their construction.

• (3) The reasonable costs of any survey under this paragraph shall include the costs of any dewatering or reduction of the water level of any part of the relevant waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey; and the provisions of this Schedule shall apply with all necessary modifications to any such dewatering or reduction in the water level as though the same were specified works.

• (4) Copies of the surveys shall be provided to both the Board and the promoter.

Approval of plans, protective works, etc.

8

• (1) The promoter shall before commencing construction of any specified work, including any temporary work, supply to the Board proper and sufficient plans of that work and such further particulars available to it as the Board may within 14 days of the submission of the plans reasonably require for the approval of the engineer and shall not commence such construction of a specified work until plans of that work have been approved in writing by the engineer or settled by arbitration.

• (2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld or delayed, and if within 56 days after such plans (including any other particulars reasonably required under sub-paragraph (1)) have been supplied to the Board the engineer has not intimated disapproval of those plans and the grounds of disapproval the engineer shall be deemed to have approved the plans as submitted.

• (3) When signifying approval of the plans the engineer may specify—

• (a) any protective work (whether temporary or permanent) which in the reasonable opinion of the engineer is reasonably necessary to be carried out before the commencement of a specified work to prevent detriment; and

• (b) such other requirements as may be reasonably necessary to prevent detriment, including reasonable requirements to minimise the impact of the specified work on the passage of vessels in the categories referred to in paragraph 14(2),

and such protective works shall be constructed (at the promoter’s expense) by the promoter, or by the Board at the promoter’s request, with all reasonable dispatch; and the promoter shall not commence the construction of a specified work until the engineer has notified the promoter that the protective works have been completed to the engineer’s reasonable satisfaction.

• (4) The promoter shall pay to the Board a capitalised sum representing the reasonably increased or additional cost of maintaining and, when necessary, renewing any works, including any permanent protective works provided under sub-paragraph (3), and of carrying out any additional dredging of the waterway necessitated by the exercise of any of the powers conferred by this Order; but if the cost of maintaining the waterway, or of works of renewal of the waterway, is reduced in consequence of any such works, a capitalised sum representing such reasonable saving shall be set off against any sum payable by the promoter to the Board under this paragraph.

• (5) In the event that the promoter fails to complete the construction of, or part of, a specified work the Board may, if it is reasonably required in order to avoid detriment, construct any work, or part of such work (together with any adjoining work) in order to complete the construction of, or part of, the specified work or make such work and the promoter shall reimburse the Board all costs, fees, charges and expenses it has reasonably incurred in carrying out such work.

Design of works

9

Without affecting its obligations under the foregoing provisions of this Schedule the promoter shall consult, collaborate with and respond constructively to any approach, suggestion, proposal or initiative made by the Board on—

• (a) the design and appearance of the specified works, including the materials to be used for their construction; and

• (b) the environmental effects of the specified works,

and shall have regard to such reasonable views as may be expressed by the Board pursuant (in particular) to the requirements imposed on the Board by section 22 (general environmental and recreational duties) of the British Waterways Act 1995[^f00058] and to the interest of the Board in preserving and enhancing the environment of its waterways.

Programming and notice of works

10

On or before 1st June in any year the promoter shall notify the Board as to whether any specified work is programmed to be carried out during the period of 12 months from 1st November in that year and shall provide the Board with as much detail concerning any such works, their nature, date and likely duration as is available to the promoter and reasonably necessary to indicate the impact of those works on the waterway.

11

The promoter shall give to the engineer not less than 56 days' notice of its intention to—

• (a) commence the construction of any specified or protective work, or

• (b) exercise the powers conferred by article 20 (temporary closure of, and works in, waterways), except in case of emergency, when the promoter shall give such notice as may be reasonably practicable so that, in particular, the Board may where appropriate arrange for the publication of notices bringing the work to the attention of users of the Board’s network.

12

Except in case of emergency the promoter shall exercise the powers conferred by article 20 (temporary closure of, and works in, waterways) in relation to the relevant part of the canal only during the stoppage season.

Lighting

13

The promoter shall provide and maintain at its own expense in the vicinity of the specified or protective works such temporary lighting and such signal lights for the control of navigation as the engineer may reasonably require during the construction or failure of the specified or protective works.

Construction of specified works

14

• (1) Any specified or protective work shall, when commenced, be constructed—

• (a) with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled as provided in paragraph 8(1) and with any requirement made under paragraph 8(3)(b);

• (b) under the supervision (if given) and to the reasonable satisfaction of the engineer;

• (c) in such manner as to cause as little detriment as is reasonably practicable, and

• (d) in such manner as to cause as little inconvenience as is reasonably practicable to the Board, its officers and agents and all other persons lawfully using the waterways, except to the extent that temporary obstruction has otherwise been agreed by the Board.

• (2) Nothing in this Order shall authorise the promoter to make or maintain any permanent work in or over a waterway so as to impede or prevent (whether by reducing the width of a waterway or otherwise) the passage—

• (a) in the case of any waterway to which the provisions of sections 105(1)(b) and 105(2) of the Transport Act 1968[^f00059] apply, of any vessel which is of a kind (as to its dimensions) for which the Board is required by sections 105(1)(b) and 105(2) of the Transport Act 1968 to maintain the waterway; or

• (b) in the case of any other waterway, of any vessel such as would have been capable of navigating the waterway on 17th April 2007.

• (3) Following completion of the construction of any specified work the promoter shall restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of that work.

15

• (1) Any pile, stump or other obstruction which becomes exposed in consequence of a specified work shall be removed by the promoter or, if it is not reasonably practicable to remove it, shall be cut off at such level below the bed of a waterway as the Board may direct.

• (2) If the promoter fails to remove any such pile, stump or other obstruction within 28 days after receipt of written notice from the Board requiring the removal, the Board may carry out the removal and recover its costs from the promoter.

Prevention of pollution

16

The promoter shall not in the course of constructing a specified work or a protective work or otherwise in connection with such a work do or permit anything which may result in the pollution of a waterway or the deposit of materials in it and shall take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph.

Access to work: provision of information

17

• (1) The promoter, on being given reasonable notice, shall—

• (a) at all times allow reasonable facilities to the engineer for access to a specified work during its construction; and

• (b) supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.

• (2) The Board, on being given reasonable notice, shall—

• (a) at all times afford reasonable facilities to the promoter and its agents for access to any works carried out by the Board under this Schedule during their construction; and

• (b) supply the promoter with such information as it may reasonably require with regard to such works or the method of constructing them.

Costs of alterations, etc.

18

Any additional expenses which the Board may reasonably incur in altering, reconstructing or maintaining a waterway under any powers in existence on the date when this Order was made by reason of the existence of a specified work shall, provided that 56 days' previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the promoter, be repaid by the promoter to the Board.

Alterations to waterway

19

• (1) If during the construction of a specified work or a protective work, or during a period of 24 months after the completion of any such work any alterations or additions, either permanent or temporary, to a waterway are reasonably necessary in consequence of the construction of the specified work or the protective work in order to avoid detriment, and the Board gives to the promoter reasonable notice of its intention to carry out such alterations or additions (which shall be specified in the notice), the promoter shall pay to the Board the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by the Board in maintaining, working and, when necessary, renewing any such alterations or additions.

• (2) If the cost of maintaining, working or renewing the waterway is reduced in consequence of any such alterations or additions a capitalised sum representing such saving shall be set off against any sum payable by the promoter to the Board under this paragraph.

Removal of temporary works and material

20

• (1) The promoter shall upon completion of any part of any permanent specified work remove as soon as practicable any temporary works and materials for temporary works constructed or placed in, on, over or under a waterway in connection with that part of the work.

• (2) All temporary works shall be removed to the reasonable satisfaction of the engineer, and in the construction, maintenance and removal of such works the promoter shall not cause avoidable detriment.

Maintenance of works

21

If at any time after the completion of a specified work or a protective work, not being a work vested in the Board, the Board gives notice to the promoter informing it that the state of maintenance of the work appears to be such that the work is causing or likely to cause detriment, the promoter shall, on receipt of such notice, take such steps as may be reasonably necessary to put the work in such state of maintenance as not to cause such detriment.

Repayment of the Board’s fees, etc.

22

The promoter shall repay to the Board all fees, costs, charges and expenses reasonably and properly incurred by the Board—

• (a) in constructing any protective works under the provisions of paragraph 8(3)(a);

• (b) in respect of the approval by the engineer of plans submitted by the promoter and the supervision by the engineer of the construction or repair of a specified work and any protective works;

• (c) in respect of the employment during the construction of the specified works or any protective works of any inspectors, watchmen and other persons whom it shall be reasonably necessary to appoint for inspecting, watching and lighting any waterway and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works or any protective works;

• (d) in bringing the specified works or any protective works to the notice of users of the Board’s network, including notice of the exercise of the powers conferred by article 20 (temporary closure of, and works in, waterways); and

• (e) in carrying out any assessment or monitoring of the impact of the authorised works on any waterway.

Making good of detriment: compensation and indemnity, etc.

23

• (1) If any detriment shall be caused by the construction or failure of the specified works, or the protective works if carried out by the promoter, the promoter (if so required by the Board) shall make good such detriment and shall pay to the Board all reasonable expenses to which the Board may be put, and compensation for any loss which the Board may sustain, in making good or otherwise by reason of the detriment.

• (2) The promoter shall be responsible for and make good to the Board all costs, charges, damages, expenses and losses arising by reason or in consequence of the exercise of the powers conferred by this Order and not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by the Board including any arising—

• (a) by reason of the construction of a specified work or a protective work or the failure of such a work; or

• (b) by reason of any act or omission of the promoter or of any person in its employ or of its contractors or others whilst engaged upon the construction of a specified work or a protective work,

and subject to sub-paragraph (4) the promoter shall effectively indemnify and hold harmless the Board from and against all claims and demands arising out of or in connection with any of the matters referred to in paragraphs (a) and (b).

• (3) The fact that any act or thing may have been done by the Board on behalf of the promoter or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision or in accordance with any directions or awards of an arbitrator shall not (if it was done without negligence on the part of the Board or of any person in its employ or of its contractors or agents) excuse the promoter from any liability under the provisions of this paragraph.

• (4) The Board shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior consent of the promoter.

Details of capitalised sums to be provided

24

Where under any provision of this Schedule the Board or the promoter (as the case may be) is entitled to a capitalised sum, it shall provide such details of the formula by which the sum is calculated as may reasonably be requested by the party required to pay the sum.

Arbitration

25

Any difference arising between the promoter and the Board under this Schedule (other than a difference as to the meaning or construction of this Schedule) shall be referred to and settled by arbitration in accordance with article 82 (arbitration).

SCHEDULE 14 — FOR PROTECTION OF RAILWAY INTERESTS

1

The following provisions shall have effect, unless otherwise agreed in writing between the promoter and Network Rail Infrastructure Limited and, in the case of paragraph 15, any other person on whom rights or obligations are conferred by that paragraph.

2

In this Schedule—

• “construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;

• “DBSR” means DB Schenker Rail (UK) Limited and includes its successors from time to time;

• “EMTL” means East Midlands Trains Limited or (where the context permits) its successors as station facility owner (as defined in the Railways Act 1993[^f00060]) in relation to Network Rail Infrastructure Limited’s existing station known as Nottingham Station;

• “the engineer” means an engineer appointed by Network Rail Infrastructure Limited for the purposes of this Order;

• “Freightliner” means Freightliner Group Limited and includes its successors from time to time;

• “network licence” means the network licence, as the same is amended from time to time, granted to Network Rail Infrastructure Limited by the Secretary of State in exercise of the powers under section 8 of the Railways Act 1993;

• “Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 736 of the Companies Act 1985[^f00061]) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

• “Network Rail Infrastructure Limited” means Network Rail Infrastructure Limited, a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 02904587;

• “plans” includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

• “railway operational procedures” means procedures specified under any access agreement (as defined in the Railways Act 1993) or station lease;

• “railway property” means any railway belonging to Network Rail Infrastructure Limited and— any station, land, works, apparatus and equipment belonging to Network Rail Infrastructure Limited or connected with any such railway; and any easement or other property interest held by or used for the benefit of Network Rail Infrastructure Limited for the purposes of such railway or works, apparatus or equipment; and

• “specified work” means so much of any of the authorised works as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property.

3

• (1) Where under this Schedule Network Rail is required to give its consent or approval in respect of any matter, that consent or approval is subject to the condition that Network Rail complies with any relevant railway operational procedures and any obligations under its network licence or under statute.

• (2) In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, DBSR, EMTL, Freightliner and Network Rail Infrastructure Limited shall—

• (a) co-operate with the promoter with a view to avoiding undue delay and securing conformity as between any plans approved by the engineer and requirements emanating from those procedures; and

• (b) use their reasonable endeavours to avoid any conflict arising between the application of those procedures and the proper implementation of the authorised works pursuant to this Order.

4

• (1) The promoter shall not exercise the powers conferred by article 25 (power to survey and investigate land, etc.) or the powers conferred by section 11(3) of the 1965 Act in respect of any railway property unless the exercise of such powers is with the consent of Network Rail Infrastructure Limited.

• (2) The promoter shall not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail Infrastructure Limited.

• (3) The promoter shall not exercise the powers conferred by section 271 or 272 of the 1990 Act, as applied by Schedule 11 (provisions relating to statutory undertakers, etc.), in relation to any right of access of Network Rail Infrastructure Limited to railway property, but such right of access may be diverted with the consent of Network Rail Infrastructure Limited.

• (4) The promoter shall not under the powers conferred by this Order acquire or use or acquire new rights over any railway property except with the consent of Network Rail Infrastructure Limited.

• (5) Where Network Rail Infrastructure Limited is asked to give its consent pursuant to this paragraph, such consent shall not be unreasonably withheld but may be given subject to reasonable conditions.

5

• (1) The promoter shall before commencing construction of any specified work supply to Network Rail proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work shall not be commenced except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.

• (2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld, and if by the end of the period of 56 days beginning with the date on which such plans have been supplied to Network Rail Infrastructure Limited the engineer has not intimated disapproval of those plans and the grounds of disapproval the engineer shall be deemed to have approved the plans as submitted.

• (3) If by the end of the period of 56 days beginning with the date on which such plans have been supplied to Network Rail Infrastructure Limited, Network Rail Infrastructure Limited gives notice to the promoter that Network Rail Infrastructure Limited desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the railways of Network Rail Infrastructure Limited then, if the promoter desires such part of the specified work to be constructed, Network Rail Infrastructure Limited shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the promoter in accordance with the plans approved or deemed to be approved or settled under this paragraph.

• (4) When signifying approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in the engineer’s opinion should be carried out before the commencement of the construction of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail Infrastructure Limited or the services of operators using the same (including any relocation of works, apparatus and equipment necessitated by a specified work and the comfort and safety of passengers who may be affected by the specified works), and such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail Infrastructure Limited but at the expense of the promoter, or if Network Rail Infrastructure Limited so desires such protective works shall be carried out by the promoter at its own expense with all reasonable dispatch and the promoter shall not commence the construction of the specified works until the engineer has notified the promoter that the protective works have been completed to the engineer’s reasonable satisfaction.

6

• (1) Any specified work and any protective works to be constructed by virtue of paragraph 5(4) shall, when commenced, be constructed—

• (a) with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 5;

• (b) under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

• (c) in such manner as to cause as little damage as is possible to railway property; and

• (d) so far as is reasonably practicable, so as not to interfere with or obstruct the free, uninterrupted and safe use of any railway of Network Rail Infrastructure Limited or the traffic on it and the use by passengers of railway property.

• (2) If any damage to railway property or any such interference or obstruction shall be caused by the carrying out of, or in consequence of the construction of a specified work, the promoter shall, regardless of any such approval, make good such damage and shall pay to Network Rail Infrastructure Limited all reasonable expenses to which Network Rail Infrastructure Limited may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

• (3) Nothing in this Schedule shall impose any liability on the promoter with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail Infrastructure Limited or its servants, contractors or agents or any liability on Network Rail Infrastructure Limited with respect to any damage, costs, expenses or loss attributable to the negligence of the promoter or its servants, contractors or agents.

7

The promoter shall—

• (a) at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and

• (b) supply the engineer with all such information as the engineer may reasonably require with regard to a specified work or the method of constructing it.

8

Network Rail Infrastructure Limited shall at all times afford reasonable facilities to the promoter and its agents for access to any works carried out by Network Rail Infrastructure Limited under this Schedule during their construction and shall supply the promoter with such information as it may reasonably require with regard to such works or the method of constructing them.

9

• (1) If any permanent or temporary alterations or additions to railway property, or any protective works under paragraph 5(4), are reasonably necessary during the construction of a specified work, or during a period of 12 months after the commencement of regular revenue-earning operations on the authorised tramway comprised in any specified work, in consequence of the construction of a specified work, such alterations and additions may be carried out by Network Rail Infrastructure Limited and if Network Rail Infrastructure Limited gives to the promoter reasonable notice of its intention to carry out such alterations or additions, the promoter shall pay to Network Rail Infrastructure Limited the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail Infrastructure Limited in maintaining, working and, when necessary, renewing any such alterations or additions.

• (2) If during the construction of a specified work by the promoter, Network Rail Infrastructure Limited gives notice to the promoter that Network Rail Infrastructure Limited desires itself to construct that part of the specified work which in the opinion of the engineer is endangering the stability of railway property or the safe operation of traffic on the railways of Network Rail Infrastructure Limited then, if the promoter desires that part of the specified work to be constructed, Network Rail Infrastructure Limited shall assume construction of that part of the specified work and the promoter shall, regardless of any such approval of a specified work under paragraph 5(1), pay to Network Rail Infrastructure Limited all reasonable expenses to which Network Rail Infrastructure Limited may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail Infrastructure Limited of that specified work.

• (3) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving shall be set off against any sum payable by the promoter to Network Rail Infrastructure Limited under this paragraph.

10

The promoter shall repay to Network Rail Infrastructure Limited all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail Infrastructure Limited—

• (a) in constructing any part of a specified work on behalf of the promoter as provided by paragraph 5(3) or in constructing any protective works under the provisions of paragraph 5(4) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

• (b) in respect of the approval by the engineer of plans submitted by the promoter and the supervision by the engineer of the construction of a specified work;

• (c) in respect of the employment or procurement of the services of any inspectors, signalmen, watchmen and other persons whom it shall be reasonably necessary to appoint for inspecting, signalling, watching and lighting railway property and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of a specified work;

• (d) in respect of any special traffic working resulting from any speed restrictions which may, in the opinion of the engineer, require to be imposed by reason or in consequence of the construction or failure of a specified work or from the substitution of diversion of services which may be reasonably necessary for the same reason; and

• (e) in respect of any additional temporary lighting of railway property in the vicinity of the specified works, being lighting made reasonably necessary by reason or in consequence of the construction or failure of a specified work.

11

• (1) In this paragraph—

• “EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail’s apparatus generated by the operation of the authorised works (including the operation of tramcars using the tramway comprised in the works) where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

• “Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised works) which are owned or used by Network Rail Infrastructure Limited for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

• (2) This paragraph shall apply to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 5(1) for the relevant part of the authorised works giving rise to EMI (unless the promoter has been given notice in writing before the approval of those plans of the intention to make such change).

• (3) Subject to sub-paragraph (5), the promoter shall in the design and construction of the authorised works take all measures necessary to prevent EMI and shall establish with Network Rail Infrastructure Limited (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

• (4) In order to facilitate the promoter’s compliance with sub-paragraph (3)—

• (a) the promoter shall consult with Network Rail Infrastructure Limited as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter shall continue to consult with Network Rail Infrastructure Limited (both before and after formal submission of plans under paragraph 5(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

• (b) Network Rail Infrastructure Limited shall make available to the promoter all information in the possession of Network Rail Infrastructure Limited reasonably requested by the promoter in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and

• (c) Network Rail Infrastructure Limited shall allow the promoter reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).

• (5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail Infrastructure Limited shall not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution shall be selected in the reasonable discretion of Network Rail Infrastructure Limited, and in relation to such modifications paragraph 5(1) shall have effect subject to this sub-paragraph.

• (6) If at any time prior to the commencement of regular revenue-earning operations on the authorised tramway comprised in the authorised works and regardless of any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then the promoter shall immediately upon receipt of notification by Network Rail Infrastructure Limited of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the promoter’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

• (7) In the event of EMI having occurred—

• (a) the promoter shall afford reasonable facilities to Network Rail Infrastructure Limited for access to the promoter’s apparatus in the investigation of such EMI;

• (b) Network Rail Infrastructure Limited shall afford reasonable facilities to the promoter for access to Network Rail’s apparatus in the investigation of such EMI; and

• (c) Network Rail Infrastructure Limited shall make available to the promoter any additional material information in its possession reasonably requested by the promoter in respect of Network Rail’s apparatus or such EMI.

• (8) Where Network Rail Infrastructure Limited approves modifications to Network Rail’s apparatus pursuant to sub-paragraph (5) or (6)—

• (a) Network Rail Infrastructure Limited shall allow the promoter reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus; and

• (b) any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the promoter in accordance with paragraph 6.

• (9) To the extent that it would not otherwise do so, the indemnity in paragraph 15(1) shall apply to the costs and expenses reasonably incurred or losses suffered by Network Rail Infrastructure Limited through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

• (10) For the purpose of paragraph 10(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

• (11) In relation to any dispute arising under this paragraph the reference in article 82 (arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Electrical Engineers.

12

If at any time after the completion of a specified work, not being a work vested in Network Rail Infrastructure Limited, Network Rail Infrastructure Limited gives notice to the promoter informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of railway property, the promoter shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

13

The promoter shall not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail Infrastructure Limited unless it shall have first consulted Network Rail Infrastructure Limited and it shall comply with Network Rail Infrastructure Limited’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

14

Any additional expenses which Network Rail Infrastructure Limited may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days' previous notice of the commencement of such alteration, reconstruction or maintenance has been given to the promoter, be repaid by the promoter to Network Rail Infrastructure Limited.

15

• (1) The promoter shall pay to Network Rail Infrastructure Limited all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by Network Rail—

• (a) by reason of the construction or maintenance of a specified work or the failure of such a work; or

• (b) by reason of any act or omission of the promoter or of any person in its employ or of its contractors or others whilst engaged upon a specified work,

and the promoter shall indemnify Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission; and the fact that any act or thing may have been done by Network Rail Infrastructure Limited on behalf of the promoter or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the supervision of the engineer shall not (if it was done without negligence on the part of Network Rail Infrastructure Limited or of any person in its employ or of its contractors or agents) excuse the promoter from any liability under the provisions of this sub-paragraph.

• (2) Network Rail Infrastructure Limited shall give the promoter reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior consent of the promoter.

• (3) The sums payable by the promoter under sub-paragraph (1) shall include a sum equivalent to the relevant costs.

• (4) Subject to the terms of any agreement between Network Rail Infrastructure Limited and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail Infrastructure Limited shall promptly pay to each train operator the amount of any sums which Network Rail Infrastructure Limited receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

• (5) The obligation under sub-paragraph (3) to pay Network Rail Infrastructure Limited the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

• (6) In this paragraph—

• “the relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail Infrastructure Limited’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1); and

• “train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993[^f00062].

16

Network Rail Infrastructure Limited shall, on receipt of a request from the promoter, from time to time provide the promoter free of charge with written estimates of the costs, charges, expenses and other liabilities for which the promoter is or will become liable under this Schedule (including the amount of the relevant costs mentioned in paragraph 15) and with such information as may reasonably enable the promoter to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Schedule (including any claim relating to those relevant costs).

17

In the assessment of any sums payable to Network Rail under this Schedule there shall not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by the promoter under this Schedule or increasing the sums so payable.

18

The promoter and Network Rail Infrastructure Limited may, subject in the case of Network Rail Infrastructure Limited to compliance with the terms of its network licence, enter into, and carry into effect, agreements for the transfer to the promoter of—

• (a) any railway property shown on the works and land plans and described in the book of reference;

• (b) any lands, works or other property held in connection with any such railway property; and

• (c) any rights and obligations (whether or not statutory) of Network Rail Infrastructure Limited relating to any railway property or any lands, works or other property referred to in this paragraph.

19

Nothing in this Order, or in any enactment incorporated with or applied by this Order, shall affect the operation of Part 1 of the Railways Act 1993.

20

The promoter shall give written notice to Network Rail if any application is proposed to be made by the promoter for the Secretary of State’s consent under article 55 (powers of disposal, agreements for operation, etc.) and any such notice shall be given no later than 28 days before any such application is made and shall describe or give (as appropriate)—

• (a) the nature of the application to be made;

• (b) the extent of the geographical area to which the application will relate; and

• (c) the name and address of the person acting for the Secretary of State to whom the application is to be made.

21

The promoter shall, no later than 28 days from the date that the plans submitted to the Secretary of State are certified in accordance with article 79 (certification of plans, etc.), provide a set of those plans to Network Rail Infrastructure Limited in the form of a computer disc with read only memory.

SCHEDULE 15 — REPEALS OF THE 1994 ACT

PART 1 — ENACTMENTS WITHIN THE 1994 ACT REPEALED WITH IMMEDIATE EFFECT

Enactments Repealed
Section 5(1), except in so far as it relates to compensation
Section 5(2) and (3)
Section 6(2)
Section 9
Section 11
Section 14
Section 17(4)
Sections 19 to 21
Section 27(1)
Section 34(1) to (6)(a)
Section 35
Section 37
Section 38
Section 40
Section 41(2) and (3)
Section 42(2)
Section 43(2)
Section 46
Section 47
Section 70
Section 74
Section 76(2) and (3)
Section 78
Section 80
Schedule 2
Schedule 4
Schedule 6

PART 2 — ENACTMENTS WITHIN THE 1994 ACT REPEALED WHEN LINE ONE IS FIRST OPERATED PURSUANT TO AN AGREEMENT MADE UNDER ARTICLE 55

Enactments Repealed

Enactments Repealed
Section 3
Section 4
Section 6(1)
Section 7
Section 8
Section 10
Section 12
Section 13
Section 15
Section 16
Section 17(1) to (3)
Section 18
Section 22(a) to (d)
Sections 23 to 25
Section 39
Section 41(1) and (4) to (19)
Section 42(1), (3) to (16) and (18)
Section 43(3) to (5), (7) and (11)
Section 44(2) to (9), (14) and (16) to (18)
Section 45(2) to (17) and (19) to (21)
Part 5
Sections 57 to 69
Sections 71 to 73
Section 79
Section 81
Schedule 1
Schedule 3

PART 3 — ENACTMENTS WITHIN THE 1994 ACT REPEALED WHEN ALL LAND OCCUPIED PURSUANT TO POWERS OF COMPULSORY ACQUISITION GRANTED BY THE 1994 ACT HAS BEEN COMPULSORILY ACQUIRED BY THE PROMOTER

Section 26
Section 27(2)
Section 28(1) to (4)(a)
Section 29(1) to (8)
Section 32
Section 36
Schedule 5, paragraphs 2 to 4

SCHEDULE 16 — APPLICATION TO LINE ONE

1

On the coming into force of this Order, article 55 (powers of disposal, agreements for operation, etc.) shall apply to Line One to the same extent as it applies to the authorised works and the authorised tramway, subject to the provisions of this Schedule, but with the addition of the words “or under section 71 of the 1994 Act” at the end of paragraph (1)(c) of that article.

2

• (a) From the beginning of the day on which, pursuant to article 83(2) (repeals of the 1994 Act), the enactments within the 1994 Act specified in Part 2 of Schedule 15 are repealed, the provisions of this Order mentioned in paragraph 3 shall apply to Line One except to the specified works, to the same extent as they apply to the authorised tramway and the authorised works, subject to the provisions of this Schedule.

• (b) From the beginning of the day on which, pursuant to article 83(3) (repeals of the 1994 Act), the enactments within the 1994 Act specified in Part 2 of Schedule 15 and applying to the specified works are repealed, the provisions of this Order mentioned in paragraph 3 shall apply to those works to the same extent as they apply to the authorised tramway and the authorised works, subject to the provisions of this Schedule.

• (c) In sub-paragraphs (a) and (b) “the specified works” means the following works authorised by the 1994 Act—

• (i) Work Nos. 3A and 3B;

• (ii) Work No.6;

• (iii) Work No.6B; and

• (iv) Work No.7,

together with all necessary works and conveniences connected with those works.

3

The provisions of this Order referred to in paragraph 2 are—

• (a) articles 3 and 4;

• (b) articles 5(1) to (9), 6(1) to (6) and (7)(b), and 7(2);

• (c) articles 8(2) and (3), 9, 10 and 13;

• (d) paragraphs (2) to (5) of article 14, so far as they relate to any street altered by the promoter under article 8(2) as applied by sub-paragraph (c);

• (e) articles 16 and 17;

• (f) subject to paragraphs 5 to 7, article 19;

• (g) article 21;

• (h) article 23;

• (i) article 25, so far as it applies to streets;

• (j) article 26;

• (k) Part 4, except articles 50 and 55;

• (l) subject to paragraph 8, Part 5;

• (m) article 70;

• (n) article 71, so far as it relates to alteration, reconstruction or operation;

• (o) articles 77, 78, 80 to 82 and (subject to paragraph 9) 88;

• (p) subject to paragraph 10, Schedule 12, except for sub-paragraphs 47(a) and (b), so far as it relates to altering, replacing, relaying and removal;

• (q) Schedule 13; and

• (r) Schedule 14, so far as it relates to the alteration, reconstruction, operation or, in respect of paragraphs 12, 14 and 15(1)(a), maintenance of a specified work.

4

In the application to Line One of any of the provisions of this Order mentioned in paragraphs 1 to 3, so far as the context permits—

• (a) references to the authorised street tramway, the authorised tramroad and the authorised tramway shall be treated, respectively, as references to—

• (i) that part of the railway authorised by the 1994 Act which is designated by that Act as a tramway;

• (ii) that part of the railway authorised by the 1994 Act which is not designated by that Act as a tramway; and

• (iii) the railway, or any part of the railway, authorised by the 1994 Act, whether or not designated by that Act as a tramway;

• (b) references to the scheduled works and to the authorised works shall be treated, respectively, as references to the works specified in Part 1 of Schedule 1 to the 1994 Act and references to all of the works authorised by the 1994 Act;

• (c) references to the Order limits shall be treated as references to the limits of deviation shown on the deposited plans referred to in the 1994 Act; and

• (d) references to the works and land plans, the sections and the book of reference shall be treated, respectively, as references to the deposited plans, the deposited sections and the deposited book of reference referred to in the 1994 Act, as the same may have been corrected under section 35 of that Act.

5

The reference in article 19 (attachment of equipment to buildings) to any land specified in Schedule 6 (land not to be acquired compulsorily) or Schedule 8 (acquisition of new rights only) shall be omitted and the following additional provisions shall apply to the promoter’s exercise of the powers conferred by article 19 in respect of any building for the time being constructed on any land within the limits of deviation shown on the deposited plans referred to in the 1994 Act, as applied by paragraph 2—

• (a) the promoter shall not affix any apparatus to a building without the written consent of the relevant owner of the building; and such consent may be given subject to reasonable conditions (including, where appropriate, the payment of rent) but shall not be unreasonably withheld;

• (b) where—

• (i) the promoter serves on the relevant owner of a building a notice requesting the owner’s consent to the affixing of specified apparatus to the building; and

• (ii) the relevant owner does not within the period of 56 days beginning with the date upon which the notice is served give consent unconditionally or give it subject to conditions or refuse it,

the consent shall be deemed to have been withheld;

• (c) where, in the opinion of the promoter, a consent required under this paragraph for the affixing of specified apparatus is unreasonably withheld or given subject to unreasonable conditions, it may apply to the magistrates' court, who may either allow the apparatus to be affixed subject to such conditions, if any, as it thinks fit or may disallow the application;

• (d) where apparatus is affixed to a building under this paragraph—

• (i) any owner for the time being of the building may serve on the promoter not less than 56 days' notice requiring the promoter at its own expense temporarily to remove the apparatus during any reconstruction, demolition or repair of the building if such removal is reasonably necessary for that purpose; and

• (ii) the promoter shall have the right as against any person having an interest in the building to use and maintain the apparatus;

• (e) where, in the opinion of the promoter, a requirement temporarily to remove any apparatus affixed to a building under this paragraph during any demolition or maintenance of the building is not reasonably necessary for that purpose, the promoter may refer the matter to an arbitrator under article 82 (arbitration), who may either allow the apparatus to be temporarily removed or may order that it shall not be temporarily removed; and