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The River Mersey (Mersey Gateway Bridge) Order 2011

Type Statutory-Instrument
Publication 2011-01-11
State In force
Department Queen's Printer of Acts of Parliament
Source legislation.gov.uk
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Any difference arising between the undertaker and the ACRM under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) must be referred to and settled by arbitration in accordance with article 62 (arbitration).

PART 5 — PROTECTION OF NETWORK RAIL INFRASTRUCTURE LIMITED

51

For the protection of Network Rail the following provisions of this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and Network Rail and, in the case of paragraph 64, any other person on whom rights or obligations are conferred by that paragraph, have effect.

52

In this Part of this Schedule—

  • “construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;
  • “the engineer” means an engineer appointed by Network Rail for the purposes of this Order;
  • “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 l993[^f00041];
  • “Network Rail” means Network Rail Infrastructure Limited (company number 02904587) whose registered office is at Kings Place, 90 York Way, London, N1 9AG 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 1159 of the Companies Act 2006[^f00042]) 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;
  • “plans” includes sections, designs, design data, software, 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 and— any station, land, works, apparatus and equipment belonging to Network Rail or connected with any such railway; and any easement or other property interest held or used by Network Rail 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.
53
  • (1) Where under this Part of 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, Network Rail shall—
  • (a) co-operate with the undertaker 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 its 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.
54
  • (1) The undertaker shall not exercise the powers conferred by article 16 (power to survey and investigate land) or the powers conferred by section 11(3) of the 1965 Act (powers of entry) in respect of any railway property unless the exercise of such powers is with the consent of Network Rail.
  • (2) The undertaker 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.
  • (3) The undertaker shall not exercise the powers conferred by section 271 or 272 of the 1990 Act, as applied by Schedule 9 (provisions relating to statutory undertakers, etc.), in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail.
  • (4) The undertaker 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.
  • (5) Where Network Rail 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.
55
  • (1) The undertaker 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 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, Network Rail gives notice to the undertaker that Network Rail 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 then, if the undertaker desires such part of the specified work to be constructed, Network Rail shall construct it without unnecessary delay on behalf of and to the reasonable satisfaction of the undertaker in accordance with the plans approved or deemed to be approved or settled under this paragraph, and under the supervision (where appropriate and if given) of the undertaker.
  • (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 or the services of operators using the same (including any relocation, de-commissioning and removal of works, apparatus and equipment necessitated by a specified work), and such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail or by the undertaker, if Network Rail so desires, and such protective works shall be carried out at the expense of the undertaker in either case without unnecessary delay and the undertaker shall not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed to the engineer’s reasonable satisfaction.
56
  • (1) Any specified work and any protective works to be constructed by virtue of paragraph 55(4) shall, when commenced, be constructed—
  • (a) without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under paragraph 55;
  • (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 or the traffic on it.
  • (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 undertaker shall, regardless of any such approval, make good such damage and shall pay to Network Rail all reasonable expenses to which Network Rail 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 Part of this Schedule shall impose any liability on the undertaker with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents or any liability on Network Rail with respect of any damage, costs, expenses or loss attributable to the negligence of the undertaker or its servants, contractors or agents.
57

The undertaker 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.
58

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

59
  • (1) If any permanent or temporary alterations or additions to railway property, are reasonably necessary in consequence of the construction of a specified work, during the construction of the specified work, or during a period of 12 months after the opening of the new bridge to traffic subject to toll in order to ensure the safety of railway property or the continued safe operation of the railways of Network Rail, such alterations and additions may be carried out by Network Rail and if Network Rail gives to the undertaker reasonable notice of its intention to carry out such alterations or additions (which shall be specified in the notice), the undertaker shall pay to Network Rail 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 in maintaining, working and, when necessary, renewing any such alterations or additions.
  • (2) If during the construction of a specified work by the undertaker, Network Rail gives notice to the undertaker that Network Rail 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 then, if the undertaker decides that that part of the specified work is to be constructed, Network Rail shall assume construction of that part of the specified work and the undertaker shall, regardless of any such approval of a specified work under paragraph 55(1), pay to Network Rail all reasonable expenses to which Network Rail may be put and compensation for any loss which it may suffer by reason of the execution by Network Rail of that specified work.
  • (3) The engineer shall, in respect of the capitalised sums referred to in this paragraph and paragraph 60(a) provide such details of the formula by which those sums have been calculated as the undertaker may reasonably require.
  • (4) 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 undertaker to Network Rail under this paragraph.
60

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

  • (a) in constructing any part of a specified work on behalf of the undertaker as provided by paragraph 55(3) or in constructing any protective works under the provisions of paragraph 55(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 undertaker 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, signallers, watchguards 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.
61

If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail gives notice to the undertaker 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 undertaker 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.

62

The undertaker 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 unless it shall have first consulted Network Rail and it shall comply with Network Rail’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.

63

Any additional expenses which Network Rail 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 undertaker, be repaid by the undertaker to Network Rail.

64
  • (1) The undertaker shall pay to Network Rail all reasonable costs, charges, damages and expenses not otherwise provided for in this Part of 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 it; or
  • (b) by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work,

and the undertaker 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 on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision shall not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.

  • (2) Network Rail shall give the undertaker 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 undertaker.
  • (3) The sums payable by the undertaker under sub-paragraph (1) shall include a sum equivalent to the relevant costs.
  • (4) Subject to the terms of any agreement between Network Rail and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail shall promptly pay to each train operator the amount of any sums which Network Rail 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 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’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.
65

Network Rail shall, on receipt of a request from the undertaker, from time to time provide the undertaker free of charge with written estimates of the costs, charges, expenses and other liabilities for which the undertaker is or will become liable under this Part of this Schedule (including the amount of the relevant costs mentioned in paragraph 64) and with such information as may reasonably enable the undertaker to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Part of this Schedule (including any claim relating to those relevant costs).

66

In the assessment of any sums payable to Network Rail under this Part of 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 undertaker under this Part of this Schedule or increasing the sums so payable.

67

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

  • (a) any railway property shown on the works plans 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 relating to any railway property or any lands, works or other property referred to in this paragraph.
68

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

69

The undertaker shall give written notice to Network Rail if any application is proposed to be made by the undertaker for the Secretary of State’s consent, under article 43 (power to enter into concession agreements and lease or transfer of undertaking, 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 relates; and
  • (c) the name and address of the person acting for the Secretary of State to whom the application is to be made.
70

The undertaker shall, no later than 28 days from the date that the plans submitted to the Secretary of State are certified in accordance with article 59 (certification of plans, etc.), provide a set of those plans to Network Rail in the form of a computer disc with read only memory.

PART 6 — PROTECTION OF UNITED UTILITIES WATER PLC

Interpretation

71

In this Part of this Schedule—

  • “alteration” includes the provision of alternative means of operation or the diversion of any apparatus;
  • “apparatus” means— mains, pipes or other apparatus belonging to, or maintained by, the company for the purposes of water supply; and any water main or service pipe (or part of it) that is subject to an agreement to adopt made under section 51A of the Water Industry Act 1991[^f00043]; and any sewer, drain or works vested in the company under the Water Industry Act 1991 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 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 of that Act, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to such apparatus;
  • “the company” means United Utilities Water PLC or its successor for the time being in its capacity as either a water undertaker or a sewerage undertaker within the meaning of the Water Industry Act 1991;
  • “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;
  • “in” in a context referring to apparatus in land includes under, over, across, along or upon land;
  • “specified work” means so much of the authorised works as will or may be situated over or within 15 metres (or 200 metres where explosives are used) measured in any direction of any apparatus, or (wherever situated) as will or may impose any load directly upon any apparatus.

No application where street works code applies

72

This Part of this Schedule (other than paragraphs 73 and 76) 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 undertaker and the company are regulated by the provisions of Part 3 of the 1991 Act.

Disapplication of Schedule 9 in part

73

Paragraphs 1(1) and 2 of Schedule 9 (provisions relating to statutory undertakers, etc.) shall not apply in relation to apparatus to which this Part of this Schedule applies and paragraph 1(3) and (4) of that Schedule shall have effect as if they referred to apparatus removed under this Part of this Schedule.

Acquisition of apparatus, etc.

74

Notwithstanding anything in the Order or shown on the deposited plans, the undertaker shall not acquire from the company any apparatus or land pursuant to the Order otherwise than by agreement or with the company’s consent which shall not be unreasonably withheld or delayed but may be given subject to reasonable conditions.

Exercise of powers respecting trial holes

75

The undertaker shall not, in the exercise of the powers of section 11(3) of the 1965 Act, as applied by this Order, or of article 16 (power to survey and investigate land), make any trial holes which interfere with any apparatus without the consent of the company (which shall not be unreasonably withheld).

Access

76
  • (1) If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed, the undertaker shall provide reasonable alternative means of access to such apparatus which is not materially less convenient to the access enjoyed by the company prior to the obstruction.
  • (2) Where, in consequence of this Order, any part of a highway in which any apparatus is situated ceases to be part of a highway, the company may exercise the same rights of access to such apparatus as it enjoyed immediately before the making of this Order, but nothing in this sub-paragraph shall prejudice or affect the power of the undertaker to make provision for the alteration or removal of such apparatus in submitting plans under paragraph 77.
  • (3) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 9 (temporary stopping up of streets), and subject always to the power of the undertaker to make provision for the alteration of such apparatus the company shall be at liberty at all times after giving reasonable notice except in a case of urgency to construct and do all such works and things in, upon or under any such highway as may be reasonably necessary to enable it to maintain, protect, or use any apparatus which at the time of the stopping up or diversion was in that highway.

Plan approval

77
  • (1) Without prejudice to the other provisions of this Part of this Schedule, before commencing the construction or renewal of any specified work liable to affect any apparatus, and in the case of such a specified work of a temporary nature its removal, the undertaker shall submit to the company plans as described in sub-paragraph (2) (“the plans”) and shall not commence that work until the company has signified in writing its approval of those plans.
  • (2) The plans to be submitted to the company shall be detailed plans, drawings, sections and specifications describing the position and manner in which, and the level at which, any specified work is proposed to be constructed and the position of all apparatus within 15 metres of that work or upon which the specified work will impose a load and shall include detailed drawings of any works for alteration or replacement or protection of such apparatus which the undertaker may propose.
  • (3) For the purpose of the preparation of the plans and subject to such reasonable requirements as it may specify, the company shall promptly upon the undertaker’s reasonable request permit the undertaker to have access to plans in its possession and to any of its apparatus.
  • (4) Any approval of the company required under this paragraph—
  • (a) may be given subject to reasonable conditions;
  • (b) shall not be unreasonably withheld; and
  • (c) shall be deemed to have been given if it is neither given nor refused within 42 days of the submission of plans for approval.
  • (5) Prior to their approval under sub-paragraph (1), the company may require such modifications to be made to the plans as may be reasonably necessary for the alteration or replacement of apparatus, to secure apparatus and the remainder of its undertaking as a sewerage undertaker and water undertaker against interference or risk of damage and to provide and secure reasonably proper and convenient means of access to apparatus and its sewage treatment works.
78
  • (1) The specified works shall be constructed and, in the case of any temporary work removed, in accordance with plans approved, or deemed to be approved, or settled by arbitration, as the same may be amended from time to time by agreement between the undertaker and the company, and in the construction and removal of the specified works, the undertaker shall comply with all reasonable requirements of the company (which shall be given as soon as reasonably practicable) and shall provide reasonable new, altered or substituted apparatus or works for the protection of apparatus and the remainder of its undertaking as a sewerage undertaker and water undertaker, in such manner as the company may reasonably require, by way of replacement provision for or for the proper protection of, and for preventing injury or impediment to, any such apparatus and the remainder of its undertaking by reason of the specified works.
  • (2) All works under sub-paragraph (1), for the provision of new, altered or substituted apparatus or the protection of any apparatus shall, where so required by the company, be constructed by the company or under the supervision, if given, of an officer of the company duly appointed for the purpose and to the company’s reasonable satisfaction, and all costs, charges and expenses reasonably incurred by the company in the construction of such works, or in the preparation or examination of plans or designs of such works, or in such supervision, shall be paid to the company by the undertaker.
  • (3) Where works are constructed under sub-paragraph (1) by the company, they shall be constructed with all reasonable despatch and also to the reasonable satisfaction of the undertaker.
  • (4) When works for the provision of any such new, altered or substituted apparatus, or any such protective work forming part of any such new, altered or substituted apparatus or any existing apparatus, have been completed under this Part of this Schedule to the reasonable satisfaction of the company, they shall be vested in the company forthwith but shall be maintainable by the undertaker until a period of 12 months has elapsed and the company or an engineer appointed by the company acting reasonably has issued a certificate of final inspection of the new, altered or substituted apparatus.
79
  • (1) Subject to the following provisions of this Part of this Schedule, the undertaker shall be liable to make good, or, if the company so decides, to repay to the company any reasonable expense reasonably incurred by the company in making good, all injury or damage to any apparatus (except in so far as such apparatus is intended for alteration or removal for the purposes of the specified work) caused by or resulting from the construction of any specified work or any investigation undertaken in relation to any specified works and the provision of any new, altered or substituted apparatus or any protective work under this Part of this Schedule and shall pay to the company any reasonable additional expense to which it may be put in the maintenance, management or renewal or any new, altered or substituted apparatus which may be necessary in consequence of the construction of any specified work save to the extent that sub-paragraph (6) applies provided that the undertaker may at its request pay a capitalised sum to the company in settlement of any such claim by the company representing the reasonable additional expense to which the company reasonably expects to be put.
  • (2) The company shall, in respect of the capitalised sums referred to in sub-paragraph (1) provide such details of the formula by which those sums should be calculated as the undertaker may reasonably require.
  • (3) The undertaker shall indemnify the company against all actions, claims, demands, costs, expenses, damages or loss which may be made on or against the company which the company may incur or have to pay or which it may sustain in consequence of the construction of a specified work or of the failure or want of repair of a specified work or any subsidence caused by any specified work or in consequence of any act or omission of the undertaker, their contractors, agents, workers or servants, whilst engaged upon the specified work and any new, altered or substituted apparatus or any protective work.
  • (4) The company shall give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement in writing of the undertaker which, if it withholds any such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
  • (5) Nothing in sub-paragraph (1) or (3) shall impose any liability on the undertaker in respect of any damage to the extent that it is attributable to the act, neglect or default of the company, its officers, servants, or, if not the undertaker, its contractors or agents.
  • (6) If pursuant to the provisions of this Part 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 undertaker 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 it involves cost in the construction of works under paragraph 76 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 sub-paragraph would be payable to the company by virtue of sub-paragraph (1) shall be reduced by the amount of that excess.
  • (7) For the purposes of sub-paragraph (6), 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.
  • (8) An amount which apart from this sub-paragraph would be payable to the company in respect of works by virtue of this paragraph 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 company 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.
  • (9) In any case where work is carried out by the undertaker pursuant to paragraph 76 and, if such work had been carried out by the company, the repayment made to the company under this paragraph would fall to be reduced pursuant to sub-paragraphs (4) to (6), the company shall pay to the undertaker such sum as represents the amount of that reduction.
80
  • (1) An officer of the company duly appointed for the purpose may, at any reasonable time and, if required by the undertaker, under their supervision and control, enter upon and inspect any specified work or any other works constructed under this Part of this Schedule but may not give instructions to any person engaged in or about the specified works except the undertaker or such person as it may from time to time nominate.
  • (2) The approval by the company of any plans, drawings, sections or specifications or the supervision by it of any work under this Part of this Schedule shall not (if it was done without negligence on the part of the company, its officers, servants, or, if not the undertaker, its contractors or agents) exonerate the undertaker from any liability or affect any claim for damages by the undertaker.
81

As soon as reasonably practicable after the completion of the construction of the specified works, the undertaker shall deliver to the company a plan and section showing the position and level of those works as constructed and all new, altered or substituted works provided under this Part of this Schedule.

PART 7 — PROTECTION OF CABLE AND WIRELESS UK

82
  • (1) For the protection of C&W, the following provisions of this Part of this Schedule shall, unless it is otherwise agreed in writing between the undertaker and C&W, have effect.
  • (2) In this Part of this Schedule—
  • “C&W” means Cable & Wireless UK; and
  • “public communications provider” has the same meaning as in section 151(1) of the Communications Act 2003[^f00044].
83

The temporary stopping up or diversion of any street under article 9 (temporary stopping up of streets) shall not affect any right of a public communications provider under paragraph 9 of the Telecommunications Code (“the Code”), contained in Schedule 2 to the Telecommunications Act 1984[^f00045] as amended by Schedule 3 to the Communications Act 2003, in respect of any apparatus which at the time of the temporary stopping up or diversion is in that street.

84

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

  • (a) nothing in this paragraph shall impose any liability on the undertaker with respect to any damage to the extent that such damage is attributable to any act or omission of C&W, its officers, servants, contractors or other agents; and
  • (b) C&W shall give to the undertaker reasonable notice of any claim, demand or proceedings and shall make no settlement of any claim, demand or proceedings without the consent of the undertaker, such consent not to be unreasonably withheld.
85

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

SCHEDULE 11 — LEVEL OF TOLLS

PART 1 — INITIAL TOLLS AND REVISION OF TOLLS

Initial toll range

1
  • (1) On and from the opening day the tolls chargeable for the use of the new crossing shall be at such level within the toll range specified in sub-paragraph (4) for the class of vehicle specified as the undertaker may determine and shall remain at such level until revised in accordance with the following provisions of this Schedule.
  • (2) The classification of vehicles or classes of vehicles in respect of which tolls may be charged from the opening day shall be those set out in Part 2 until revised in accordance with the following provisions of this Schedule.
  • (3) Where any vehicle falls within the definition of more than one classification of vehicles it shall be deemed to fall in the class of vehicles bearing the highest number in Part 2.
  • (4) In this Schedule “toll range” means the ranges of tolls contained in the table below increased by the same percentage for each whole year between April 2008 and the opening day as referred to in paragraph 2, subject to paragraph3.
Class of vehicle Toll range
class 1 vehicles £0.00 to £2.50
class 2 vehicles £1.00 to £2.50
class 3 vehicles £2.00 to £5.00
class 4 vehicles £4.00 to £10.00
  • (5) The toll range from the opening day for any vehicles to which the Road Vehicles (Authorisation of Special Types) (General) Order 2003[^f00046] applies shall be £15.00 to £220.00 increased by the same percentage for each whole year between April 2008 and the opening day as referred to in paragraph 2, subject to paragraph 3.

Revision of toll ranges

2
  • (1) The toll ranges referred to in paragraph 1 shall be recalculated annually on 1April each year by multiplying the upper and lower limits applying in each toll range by the indexation factor except where a reduction in those limits would result.
  • (2) The indexation factor shall be derived by dividing the value of the retail prices index for the month of February in the relevant year by the value of the retail prices index for the month of February in the preceding year to produce a percentage and then adding one per cent.
3

Any revision to the toll ranges referred to in paragraph 1 pursuant to the provisions of this Order—

  • (a) if it is neither a multiple of ten pence nor an amount which on division by ten produces a remainder of five pence shall be rounded to the nearest ten pence; and
  • (b) if it is an amount which on division by ten produces a remainder of five pence shall be increased by five pence.
4
  • (1) Subject to sub-paragraph (2), the references in this Schedule to the retail prices index means the monthly United Kingdom index of Retail Prices (for all items) published by the Office of National Statistics.
  • (2) If that index is not published for any month those references shall be references to any substituted index or index figures published by that Office for that month.

Revision of tolls

5
  • (1) The tolls payable in respect of any vehicle or class of vehicle may be varied within the toll range in effect from time to time.
  • (2) Except as paragraph 7 allows, no revision of tolls pursuant to this Schedule shall result in a toll which exceeds, at the date that any revision is proposed, an amount that is equivalent to the higher figure of the toll range increased by the same percentage as is referred to in paragraph 2, subject to paragraph 3.
  • (3) It shall not be necessary to vary any toll by reason of a revision to a toll range resulting in a toll subsisting that is lower than the lower limit of a toll range.
6
  • (1) Whenever the undertaker proposes to revise the toll that applies in respect of any vehicle or class of vehicles pursuant to paragraph5 the undertaker shall publish in at least one local newspaper circulating in the area in which the new crossing is situated, a notice substantially in the form set out in Part 5.
  • (2) The undertaker may charge the tolls set out in a notice given under sub-paragraph (1) from the day 28 days after that on which the notice referred to in sub-paragraph (1) is published.

Further provisions as to revision of toll ranges and classification of vehicles

7
  • (1) Where a revision of tolls within the toll ranges recalculated pursuant to paragraph 2 would be insufficient—
  • (a) to pay the costs and expenses incurred in designing, constructing, managing, operating and maintaining the new crossing or any costs associated with financing any of the same;
  • (b) to provide such funds as are or are likely to be necessary to discharge the obligations of the undertaker pursuant to a concession agreement;
  • (c) to pay the interest on, and repay the principal of monies borrowed in respect of, the new crossing;
  • (d) to make payment into any maintenance or reserve fund provided in respect of the new crossing; or
  • (e) in providing funds for, to meet expenses incurred in or the cost of securing any necessary authority or consent for, and in constructing or in securing, the construction, maintenance and operation of, the new crossing or securing the maintenance or operation of the Silver Jubilee Bridge (as the case may be) or works to the Silver Jubilee Bridge,

the toll ranges or any of them may if the undertaker so determines be increased to enable the purposes set out in this paragraph to be achieved, after complying with the requirements set out in paragraphs 8 to 14.

  • (2) The undertaker may vary the classification of vehicles or classes of vehicles in respect of which tolls may be charged after complying with the requirements set out in paragraphs 8 to 14.
  • (3) The toll range in respect of any vehicle or class of vehicles may not be revised pursuant to this paragraph if less than 12 months have passed following the previous exercise by the undertaker of its powers under this paragraph.
8
  • (1) Prior to exercising its powers under paragraph 7 the undertaker shall—
  • (a) publish in at least one local newspaper in the area in which the new crossing is situated a notice substantially in the form set out in Part 3 of this Schedule;
  • (b) take such other steps as it may consider appropriate for ensuring that adequate publicity about the proposed change is given to persons likely to be affected by its provisions and, without limiting the scope of this sub-paragraph, such other steps may include—
  • (i) publication of a notice in the London Gazette;
  • (ii) the display of notices in roads or other places affected by the proposed change; or
  • (iii) the delivery of notices or letters to persons appearing to the undertaker to be likely to be affected by any provision in the proposed change.
  • (2) The undertaker shall make the following deposited documents available for public inspection, so far as they are relevant, at the principal offices of the undertaker during normal office hours and at such other places (if any) within the area in which the new crossing is situated as it may think fit during such hours as it may determine for each such place—
  • (a) details of the changes proposed pursuant to paragraph 7;
  • (b) a map which clearly shows the location and effect of the proposals;
  • (c) a statement setting out the reasons for the proposals including, where the proposals result from costs associated with financing any matter, an explanation of the need to do so;
  • (d) if the proposals vary, revoke, apply or suspend existing provisions, copies of those provisions; and
  • (e) a report setting out the steps taken to publicise the changes proposed and the consultation undertaken with persons likely to be affected by any provision in the proposed changes together with a summary of the response to such consultations.
  • (3) The deposited documents referred to in sub-paragraph (2) shall be made so available at the times and at the places specified in the notice referred to in sub-paragraph (1)(a) throughout the period beginning with the date on which such notice of proposals is first published and ending with the last day of the period of 6 weeks following that date.
9
  • (1) Any person may object to the changes proposed by the undertaker pursuant to paragraph 7 by the date specified in the notice of proposals.
  • (2) An objection under paragraph (1) shall—
  • (a) be made in writing;
  • (b) state the grounds on which it is made;
  • (c) indicate who is making the objection;
  • (d) provide an address to which any correspondence relating to that objection may be sent;
  • (e) be sent to the address specified in the notice of proposals by the date specified in that notice.
10
  • (1) Where paragraph 7 applies to a proposed change and following the publication of a notice in accordance with paragraph 8(1)(a) no objections are received in the manner prescribed in paragraph 9 or any objection is withdrawn, the undertaker may, subject to complying with sub-paragraph (2), revise—
  • (a) the toll ranges in respect of any vehicles or class of vehicles to a level not exceeding those set out in the notice referred to in paragraph 8(1)(a);
  • (b) the classification of vehicles or classes of vehicles in respect of which tolls may be charged to those set out in the notice referred to in paragraph 8(1)(a).
  • (2) The undertaker shall publish in at least one newspaper circulating in the area in which the new bridge is situated a notice substantially in the form set out in Part 5 of this Schedule stating the toll ranges, classifications of vehicles or classes of vehicles that will then apply.
  • (3) The undertaker may apply the revised toll ranges or apply the revised vehicle classifications or classes of vehicles (as the case may be) from the day 28 days after the notice referred to in sub-paragraph (2) is published.
11

Where paragraph 7 applies to any proposed change and an objection has been received in the manner prescribed in paragraph 9 and the objection is not withdrawn, the undertaker shall not determine to raise the amount of any tolls or toll ranges or change vehicle classifications or classes of vehicles until it has complied with the provisions of paragraphs 12 and 13.

12
  • (1) Where any objections have been made in accordance with paragraph 9 the undertaker shall cause a local inquiry to be held for the purpose of considering the objections.
  • (2) The local inquiry shall be held by a person appointed by the Secretary of State.
  • (3) Subsections (2) and (3) of section 250 of the Local Government Act 1972[^f00047] shall apply to an inquiry under this paragraph as they apply to an inquiry under that section.
  • (4) The Tribunals and Inquiries Act 1992[^f00048] shall apply to a local inquiry held under this paragraph as it applies to a statutory inquiry held by the Minister but as if in section 10(1) of that Act (statement of reasons for decision) the reference to any decision taken by the Minister were a reference to the decision taken by the undertaker.
  • (5) A local inquiry need not be held under this paragraph if all persons who have made objections have withdrawn their objections in which case paragraph 10(1) shall apply.
13
  • (1) In any case where the undertaker holds a local inquiry in connection with the exercise of its powers under paragraph 7, the undertaker shall—
  • (a) publish at least once in a local newspaper circulating in the area in which the new crossing is situated a notice in substantially the form set out in Part 4;
  • (b) give notice of the inquiry in writing to each person who has objected to the proposals in accordance with paragraph 9 and who has not withdrawn the objection; and
  • (c) take such other steps as it may consider appropriate for ensuring that adequate publicity about the inquiry is given to persons likely to be affected by the proposed changes and, without limiting the scope of this sub-paragraph, such other steps may include—
  • (i) publication of a notice in the London Gazette;
  • (ii) the display of notices in roads or other places affected by the proposed changes; or
  • (iii) the delivery of notices or letters to premises, or premises occupied by persons, appearing to the undertaker to be likely to be affected by the proposed changes.
  • (2) An inquiry to which sub-paragraph (1) applies shall not begin less than 12 weeks after the notice of the proposed inquiry is given pursuant to sub-paragraph (1)(b).
  • (3) The person appointed to hold a local inquiry under paragraph 12(2) may require additional publicity to be given to the inquiry for the purpose of encouraging participation by members of the public.
  • (4) The person holding any local inquiry to which this provision applies shall have regard to the representations of members of the public and the responses to consultation in the report referred to at paragraph 8(2)(e).
14
  • (1) Where a local inquiry has been held the undertaker must first consider the report of the person it has appointed to hold the local inquiry before making any determination under this paragraph.
  • (2) Having considered the report of the person who held the inquiry the undertaker must—
  • (a) determine that the classification of vehicles or classes of vehicles in respect of which tolls may be charged shall be revised to those set out in the notice referred to in paragraph 8(1)(a); or
  • (b) determine that the toll ranges in respect of any vehicles or class of vehicles shall be revised to levels not exceeding those set out in the notice referred to in paragraph 8(1)(a); or
  • (c) determine not to make any such revision.
  • (3) The undertaker shall publish in at least one local newspaper circulating in the area in which the new crossing is situated, a notice substantially in the form set out in Part 5 of this Schedule stating the toll ranges and any classification of vehicles or classes of vehicles determined in accordance with sub-paragraph (2).
  • (4) The undertaker may apply the toll ranges or classifications of vehicles or classes of vehicles (as the case may be) determined pursuant to sub-paragraph (2) from the day 28 days after which the notice referred to in sub-paragraph (3) is published.

PART 2 — CLASSIFICATION OF VEHICLES

15

In this Schedule—

“class 1 vehicle” means a moped falling within classifications A(a) and A(b); motorcycles falling within classifications B(a) and B(b); motor tricycles falling within classifications C(a) and C(b); and quadricycles falling within classifications D(a), D(b), E(a) and E(b).
“class 2 vehicle” means motor vehicles with at least four wheels, used for the carriage of passengers, falling within classifications M₁(a) and M₁(b); and motor vehicles with at least four wheels, used for the carriage of goods falling within classification N₁(a).
“class 3 vehicle” means motor caravans falling within classifications L(a) and L(b); motor vehicles with at least four wheels, used for the carriage of passengers falling within classifications M₂(a) and M₂(b); and motor vehicles with at least four wheels used for the carriage of goods, falling within classifications N₁(b), N₂(a) and N₂(b).
“class 4 vehicle” means motor vehicles with at least four wheels, used for the carriage of passengers falling within classifications M₃(a) and M₃(b); and motor vehicles with at least four wheels used for the carriage of goods, falling within classifications N₃(a) and N₃(b).

SCHEDULE 12 — REGISTER OF VEHICLES EXEMPT FROM TOLLS

PART 1

1

Tolls may not be levied in respect of—

  • (a) a vehicle whose details have been recorded on the exemptions register in accordance with Part 2 of this Schedule and, in the case of those listed in paragraphs 2(a) to (d), being used in the execution of duty; or
  • (b) a vehicle being used in connection with—
  • (i) the collection of tolls or charges; or
  • (ii) the maintenance, improvement or renewal of, or other dealing with, the Silver Jubilee Bridge or the new crossing or any structure, works or apparatus in, on, under or over any part of the new crossing or Silver Jubilee Bridge; or
  • (c) a vehicle which, having broken down on the Silver Jubilee Bridge or the new crossing while travelling in one direction, is travelling in the opposite direction otherwise than under its own power; or
  • (d) a military vehicle, that is, a vehicle used for army, naval or air force purposes, while being driven by persons for the time being subject to the orders of a member of the armed forces of the Crown.

PART 2

2

Vehicles falling within the following descriptions of motor vehicles shall be eligible to be entered upon the exemptions register—

  • (a) a police vehicle, identifiable as such by writing or markings on it or otherwise by its appearance, or being the property of the Service Authority for the National Criminal Intelligence Service or the Service Authority for the National Crime Squad;
  • (b) a fire engine as defined by paragraph 4(2) of Schedule 2 to the Vehicle Excise and Registration Act 1994[^f00050];
  • (c) a vehicle which is kept by a fire authority as defined by paragraph 5 of that Schedule;
  • (d) an ambulance as defined by paragraph 6(2) of that Schedule; or
  • (e) a vehicle owned by or being used for the transport of a person who has a disabled person’s badge and which displays a current disabled person’s badge issued under—
  • (i) section 21 of the Chronically Sick and Disabled Persons Act 1970[^f00051], or
  • (ii) section 14 of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978[^f00052].
3

The undertaker may require that an application to enter particulars of a vehicle on the exemptions register or to renew the registration of a vehicle—

  • (a) shall include all such information as the undertaker may reasonably require; and
  • (b) shall be made by such means as the undertaker may accept.
4

Registration of a vehicle upon the exemptions register, and the use to which that vehicle must be put to qualify as exempt from tolls, shall be subject to the imposition of such further conditions as the undertaker may reasonably impose.

5

Where the undertaker receives an application that complies with paragraph 3 to enter particulars of a vehicle on the exemptions register, or to renew the registration of a vehicle, and the vehicle falls within the descriptions set out in paragraph 2 it shall enter the particulars of that vehicle on the exemptions register within 20 working days of receiving such an application.

6

The undertaker shall remove particulars of a vehicle from the exemptions register—

  • (a) in the case of a vehicle registered in relation to the holder of a disabled person’s badge, when that person ceases to be an eligible person for a disabled person’s badge as set out in paragraph 2(e);
  • (b) in the case of any vehicle at the end of the period of 7 consecutive days beginning with the day on which a change in the keeper of the vehicle occurred, unless the undertaker renews the registration for a further period on application to it by or on behalf of the new keeper.
7

Where the registered keeper of a vehicle is aware that the vehicle has ceased or will cease to be a vehicle eligible to be entered on the exemptions register, the keeper shall notify the undertaker of the fact and the undertaker shall remove the particulars of the vehicle from the exemptions register as soon as reasonably practicable or from the date notified to the undertaker as the date on which it will cease to be a vehicle eligible to be recorded on the exemptions register.

8

If the undertaker is no longer satisfied that a vehicle is an exempt vehicle it shall—

  • (a) remove the particulars of a vehicle from the exemptions register; and
  • (b) notify the registered keeper.
9

Nothing in this Schedule shall prevent the making of a fresh application for particulars of a vehicle to be entered in the exemptions register after they have been removed from it in accordance with any provision of this Part of this Schedule.

SCHEDULE 13 — MANCHESTER SHIP CANAL ACTS AND ORDERS

  • Manchester Ship Canal (Additional Capital, & c.) Act 1893 c. xxiii
  • Manchester Ship Canal (Bridgewater Canal) Act 1907 c. xv
  • Manchester Ship Canal (Various Powers) Act 1907 c. xxx
  • The Manchester Ship Canal (Black Bear Canal) (Local Enactments) Order 1976 (S.I. 1976/1084)
  • The Manchester Ship Canal (Bridgewater Canal) Act 1907 (Amendment) Order 1996 (S.I. 1996/1484)
  • The Manchester Ship Canal Harbour Revision Order 2009 (S.I. 2009/2579)

Signed

Signed by authority of the Secretary of State for Transport

Ellis Harvey — Head of the Transport and Works Act Orders Unit — Department for Transport — 11th January 2011

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order authorises Halton Borough Council to construct, operate and maintain a bridge between Runcorn and Widnes for vehicles over and in the River Mersey and St Helen’s Canal and over the Manchester Ship Canal and Bridgewater Canal together with all the necessary related and ancillary works. For the purpose of the new bridge the Order authorises Halton Borough Council, compulsorily or by agreement to purchase land and rights in land and to use lands. It provides for the new bridge over the River Mersey to be subject to tolls payable by those who use the new bridge in vehicles, and for enforcement powers in respect of non-payment of such tolls. The Order also authorises the making of alterations to the highway network, the power temporarily to close the River Mersey, St Helen’s Canal, Manchester Ship Canal and Bridgewater Canal, to remove vessels and to make byelaws.

A copy of the works plans and the land plans and book of reference mentioned in this Order and certified in accordance with article 59 (certification of plans, etc.) of this Order may be inspected free of charge at the offices of Halton Borough Council, Municipal Building, Kingsway, Widnes WA8 7QF.

Footnotes

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

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

[^f00003]: 1964 c. 40.

[^f00004]: 1961 c. 33.

[^f00005]: 1965 c. 56.

[^f00006]: 1980 c. 66.

[^f00007]: 1990 c. 8.

[^f00008]: 1991 c. 22. As amended by the Traffic Management Act 2004 c. 18.

[^f00009]: 2000 c. 38.

[^f00010]: 1981 c. 67.

[^f00011]: 1994 c. 22.

[^f00012]: 1947 c. xxix.

[^f00013]: 1955 c. xxviii.

[^f00014]: 1984 c. 27.

[^f00015]: 1991 c. 56.

[^f00016]: S.I. 2010/675.

[^f00017]: 1964 c. 40.

[^f00018]: 1979 c. 46.

[^f00019]: 1981 c. 67.

[^f00020]: 1981 c. 66.

[^f00021]: S.I. 2001/2793.

[^f00022]: 1988 c. 53.

[^f00023]: OJL 187, 20.7.1999, p 42.

[^f00024]: OJL 157, 9.6.2006, p 8.

[^f00025]: OJL 363, 20.12.2006, p 344.

[^f00026]: S.I. 1969/17.

[^f00027]: S.I. 1975/148.

[^f00028]: S.I. 1999/1892.

[^f00029]: 2006 c. 26.

[^f00030]: 1990 c. 43.

[^f00031]: 1974 c. 40.

[^f00032]: 1842 c. cx.

[^f00033]: 1978 c. 30.

[^f00034]: 1973 c. 26.

[^f00035]: S.I. 2011/41.

[^f00036]: 2003 c. 21.

[^f00037]: 1980 c. 66.

[^f00038]: 1971 c. lvii.

[^f00039]: 1991 c. 57.

[^f00040]: 1991 c. 59.

[^f00041]: 1993 c. 43.

[^f00042]: 2006 c. 46.

[^f00043]: 1991 c. 56.

[^f00044]: 2003 c. 21.

[^f00045]: 1984 c. 12.

[^f00046]: S.I. 2003/1998.

[^f00047]: 1972 c. 70.

[^f00048]: 1992 c. 53.

[^f00049]: S.I. 2001/2793.

[^f00050]: 1994 c. 22.

[^f00051]: 1970 c. 44.

[^f00052]: 1978 c. 53.

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