The Network Rail (Nuneaton North Chord) Order 2010

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5(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 an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, Network Rail shall—

• (a) bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and

• (b) make reasonable compensation to that undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker,

by reason or in consequence of any such damage or interruption.

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

• (3) An undertaker shall give Network Rail reasonable notice of any such claim or demand and no settlement or compromise shall be made without the consent of Network Rail 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.

10

Nothing in this Schedule shall affect the provisions of any enactment or agreement regulating the relations between Network Rail and an undertaker in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which this Order is made.

SCHEDULE 10 — PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

1

• (1) For the protection of any operator, the following provisions shall, unless otherwise agreed in writing between Network Rail and the operator, have effect.

• (2) In this Schedule—

• “BT” means British Telecommunications plc;

• “conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system shall be construed in accordance with paragraph 1(3A) of that code;

• “electronic communications apparatus” has the same meaning as in the electronic communications code;

• “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of the 2003 Act[^f00035];

• “electronic communications code network” means— so much of an electronic communications network or conduit system provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106 of the 2003 Act; and an electronic communications network which the Secretary of State is providing or proposing to provide;

• “electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act; and

• “operator” means the operator of an electronic communications code network.

2

The temporary stopping up or diversion of any highway under article 9 (temporary stopping up of streets) shall not affect any right of the operator under paragraph 9 of the electronic communications code to maintain any apparatus which, at the time of the stopping up or diversion, is in that highway.

3

• (1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised works or their construction, or of any subsidence resulting from any of those works—

• (a) any damage is caused to any electronic communications apparatus belonging to BT (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 BT); or

• (b) there is any interruption in the supply of the service provided by BT, Network Rail shall bear and pay the cost reasonably incurred by BT in making good such damage or restoring the supply and shall—

• (i) make reasonable compensation to BT for loss sustained by it; and

• (ii) indemnify BT against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, BT by reason, or in consequence of, any such damage or interruption.

• (2) Sub-paragraph (1) shall not apply to—

• (a) any apparatus in respect of which the relations between Network Rail and BT are regulated by the provisions of Part 3 of the 1991 Act; or

• (b) any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised works.

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

• (4) BT shall give Network Rail reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand shall be made without the consent of Network Rail 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.

• (5) Any difference arising between Network Rail and the operator under this Schedule shall be referred to and settled by arbitration under article 37 (arbitration).

SCHEDULE 11 — PROTECTION FOR THE ENVIRONMENT AGENCY

1

• (1) The following provisions shall apply for the protection of the Agency unless otherwise agreed in writing between Network Rail and the Agency.

• (2) In this Schedule—

• “the Agency” means the Environment Agency;

• “construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” shall be construed accordingly;

• “drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

• “the fishery” means any waters containing fish and the spawn, habitat or food of such fish;

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

• “specified work” means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to— affect any drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work; affect the flow, purity or quality of water in any watercourse or other surface waters or ground water; cause obstruction to the free passage of fish or damage to any fishery; or affect the conservation, distribution or use of water resources; and

• “watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer.

2

• (1) Before beginning to construct any specified work, Network Rail shall submit to the Agency plans of the specified work and such further particulars available to it as the Agency may within 28 days of the submission of the plans reasonably require.

• (2) Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the Agency, or determined under paragraph 13.

• (3) Any approval of the Agency required under this paragraph—

• (a) shall not be unreasonably withheld;

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

• (c) may be given subject to such reasonable requirements as the Agency may make for the protection of any drainage work or the fishery or for the protection of water resources, or for the prevention of flooding or pollution, or in the discharge of its environmental duties or any other duties imposed on the Agency by section 7 of the Environment Act 1995[^f00036].

• (4) The Agency shall use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

3

Without limitation on the scope of paragraph 2, the requirements which the Agency may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

• (a) to safeguard any drainage work against damage; or

• (b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

4

• (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 3, shall be constructed—

• (a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under this Schedule; and

• (b) to the reasonable satisfaction of the Agency,

and any officer of the Agency shall be entitled to watch and inspect the construction of such works.

• (2) Network Rail shall give to the Agency not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

• (3) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Schedule, the Agency may by notice in writing require Network Rail at Network Rail’s own expense to comply with the requirements of this Schedule or (if Network Rail so elects and the Agency in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

• (4) Subject to sub-paragraph (5) and paragraph 8, if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon Network Rail, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from Network Rail.

• (5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not except in emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.

5

• (1) Subject to the provisions of this Schedule and except to the extent that the Agency or another person is liable to maintain any such work and is not precluded by the exercise of the powers conferred by this Order from so doing, Network Rail shall from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation or on land held by Network Rail for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the powers conferred by this Order or is already in existence.

• (2) If any such drainage work which Network Rail is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require Network Rail to repair and restore the work, or any part of such work, or (if Network Rail so elects and the Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site to its former condition, to such extent and within such limits as the Agency reasonably requires.

• (3) Subject to paragraph 8, if, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on Network Rail, Network Rail has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from Network Rail.

• (4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2) , the Agency shall not except in a case of emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.

6

Subject to paragraph 8, if by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that drainage work is otherwise damaged, such impairment or damage shall be made good by Network Rail to the reasonable satisfaction of the Agency and if Network Rail fails to do so, the Agency may make good the same and recover from Network Rail the expense reasonably incurred by it in so doing.

7

• (1) Network Rail shall take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the fishery during the construction of any specified work.

• (2) If by reason of—

• (a) the construction of any specified work; or

• (b) the failure of any such work,

damage to the fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on Network Rail requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect the fishery against such damage.

• (3) Subject to paragraph 8, if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, Network Rail fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from Network Rail the expense reasonably incurred by it in doing so.

• (4) Subject to paragraph 8, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from Network Rail the reasonable cost of so doing provided that notice specifying those steps is served on Network Rail as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

8

Nothing in paragraphs 4(4), 5(3), 6, 7(3) and (4) shall authorise the Agency to execute works on or affecting an operational railway forming part of Network Rail’s network without the prior consent in writing of Network Rail, such consent not to be unreasonably withheld.

9

Network Rail shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain—

• (a) in the examination or approval of plans under this Schedule; or

• (b) in the inspection of the construction of the specified works or any protective works required by the Agency under this Schedule.

10

• (1) Without affecting the other provisions of this Schedule, Network Rail shall indemnify the Agency from all claims, demands, proceedings, costs, damages, expenses or loss, which may be made or taken against, recovered from, or incurred by, the Agency by reason of—

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

• (b) any damage to the fishery;

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

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

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

which is caused by the construction of any of the specified works or any act or omission of Network Rail, its contractors, agents or employees whilst engaged upon the work.

• (2) The Agency shall give to Network Rail reasonable notice of any such claim or demand and no settlement or compromise of it shall be made without the agreement of Network Rail which agreement shall not be unreasonably withheld.

11

The fact that any work or thing has been executed or done by Network Rail in accordance with a plan approved or deemed to be approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, shall not relieve Network Rail from any liability under the provisions of this Schedule.

12

For the purposes of Chapter 2 of Part 2 of the Water Resources Act 1991[^f00037] (abstraction and impounding of water) and section 109 of that Act (as to structures in, over or under watercourses) as applying to the construction of any specified work, any consent or approval given or deemed to be given by the Agency under this Schedule with respect to such construction shall be deemed also to constitute a licence under that Chapter to obstruct or impede the flow of inland waters at that point by means of impounding works or, as the case may be, a consent or approval under section 109.

13

Any dispute arising between Network Rail and the Agency under this Schedule shall, if the parties agree, be determined by arbitration in accordance with article 37 (arbitration), but shall otherwise be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly on a reference to them by Network Rail or the Agency, after notice in writing by one to the other.

Signed

Signed by authority of the Secretary of State

Ellis Harvey — Head of the Transport and Works Act Orders Unit — Department for Transport — 29th June 2010

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order authorises Network Rail Infrastructure Limited to construct and maintain a new chord railway and associated works adjoining the West Coast Main Line railway (“WCML”), at Nuneaton to provide a new connection enabling freight trains coming from the east to cross over the WCML and join the WCML line going north without significantly interfering with existing railway services in the Nuneaton area. The Order authorises the acquisition of land and rights in land, and the use of land, for this purpose and confers authorising powers in connection with the construction and operation of the railway.

Copies of the Order plans and sections and the book of reference referred to in the Order may be inspected at the offices of the Company Secretary and Solicitor to Network Rail Infrastructure Limited at Kings Place, 90 York Way, London N1 9AG.

Footnotes

[^f00001]: S.I. 2006/1466.

[^f00002]: 1992 c. 42. Part 1 of this Act is amended by S.I. 1995/1541, S.I. 1998/2226, S.I. 2000/3199 and S.I. 2006/958.

[^f00003]: 1961 c. 33.

[^f00004]: 1965 c. 56.

[^f00005]: 1990 c. 8.

[^f00006]: 1991 c. 22.

[^f00007]: 2003 c. 21.

[^f00008]: 1980 c. 66.

[^f00009]: See section 32.

[^f00010]: 1981 c. 67.

[^f00011]: 1845 c. 20.

[^f00012]: 1923 c. 20.

[^f00013]: 1863 c. 92.

[^f00014]: 1991 c. 56.

[^f00015]: 1991 c. 57.

[^f00016]: 1979 c. 46.

[^f00017]: 1981 c. 67.

[^f00018]: 1981 c. 66.

[^f00019]: 1981 c. 66.

[^f00020]: 1990 c. 43.

[^f00021]: 1974 c. 40.

[^f00022]: 1993 c. 43.

[^f00023]: S.I. 1969/17.

[^f00024]: S.I. 1975/148.

[^f00025]: S.I. 1999/1892.

[^f00026]: 1978 c. 30.

[^f00027]: 1973 c. 26.

[^f00028]: S.I. 2010/1721.

[^f00029]: 2003 c. 21.

[^f00030]: 1980 c. 66.

[^f00031]: 1980 c. 66.

[^f00032]: 1989 c. 29.

[^f00033]: 1991 c. 56.

[^f00034]: 1986 c. 44. A new section 7 was substituted by section 5 of the Gas Act 1995 (c. 45), and was further amended by section 76 of the Utilities Act 2000 (c. 27).

[^f00035]: See section 106.

[^f00036]: 1995 c. 25.

[^f00037]: 1991 c. 57.