The Network Rail (Redditch Branch Enhancement) Order 2013

Made: 31st October 2013

Coming into force: 21st November 2013

The Secretary of State, in exercise of the powers conferred by sections 114, 115, 120 and 122 of, and paragraphs 1 to 3, 10 to 17, 24, 26, 36 and 37 of Part 1 of Schedule 5 to, the 2008 Act, makes the following Order—

PART 1 — Preliminary

Citation and commencement

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This Order may be cited as the Network Rail (Redditch Branch Enhancement) Order 2013 and comes into force on 21st November 2013.

Interpretation

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• (1) In this Order—

• “the 1961 Act” means the Land Compensation Act 1961[^f00004];

• “the 1965 Act” means the Compulsory Purchase Act 1965[^f00005];

• “the 1980 Act” means the Highways Act 1980[^f00006];

• “the 1981 Act” means the Compulsory Purchase (Vesting Declarations) Act 1981[^f00007];

• “the 1984 Act” means the Road Traffic Regulation Act 1984[^f00008];

• “the 1990 Act” means the Town and Country Planning Act 1990[^f00009];

• “the 1991 Act” means the New Roads and Street Works Act 1991[^f00010];

• “the 2003 Act” means the Communications Act 2003[^f00011];

• “the 2008 Act” means the Planning Act 2008;

• “the 2009 Regulations” means the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009;

• “the access to works and traffic regulation plan” means the access to works and traffic regulation plan certified by the Secretary of State as the access to works and traffic regulation plan for the purposes of this Order;

• “address” includes any number or address used for the purposes of electronic transmission;

• “the archaeological and historic impact assessment report” means the archaeological and historic impact assessment report certified by the Secretary of State as the archaeological and historic impact assessment report for the purposes of this Order;

• “authorised development” means the development and associated development described in Part 1 of Schedule 1 (authorised development), which is development within the meaning of section 32 of the 2008 Act;

• “the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

• “building” includes any structure or erection or any part of a building, structure or erection;

• “carriageway” has the same meaning as in the 1980 Act;

• “commencement” means the first carrying out of a material operation within the meaning of section 56(4) of the 1990 Act for the construction of the authorised development and commence and commenced are to be construed accordingly;

• “compulsory acquisition notice” means a notice served in accordance with section 134 of the 2008 Act;

• “the design drawings” means the drawings titled (1) Engineering plans including existing services and new services, drainage and surface water management, (2) Section drawings, (3) Alvechurch station general arrangement, and (4) Landscaping plans, each submitted under regulation 5(2)(o) of the 2009 Regulations and together certified as the design drawings by the Secretary of State for the purposes of the Order;

• “the ecological impact assessment report” means the ecological impact assessment report certified by the Secretary of State as the ecological impact assessment report for the purposes of this Order;

• “electronic communications code” has the meaning given in section 106(1) of the 2003 Act

• “electronic transmission” means a communication transmitted—by means of an electronic communications network; orby other means but while in electronic form;

• “the environmental reports” means the archaeological and historic impact assessment report; the ecological impact assessment report; the flood risk assessment; the land quality report; the noise assessment report; the visual impacts report and landscape plan/strategy; and the waste management plan;

• “first open for use” means the date on which Work No. 1 is first used for revenue earning purposes by the passage of passenger carrying railway vehicles;

• “the flood risk assessment” means the flood risk assessment including a river basin management impact assessment and plan certified by the Secretary of State as the flood risk assessment for the purposes of this Order;

• “footpath” has the same meaning as in the 1980 Act;

• “the footpath stopping up and diversion plan” means the plan certified as the footpath stopping up and diversion plan by the Secretary of State for the purposes of this Order;

• “highway” has the same meaning as in the 1980 Act;

• “highway authority” means Worcestershire County Council as local highway authority or any successor highway authority;

• “implementation plan” means a written plan agreed between Network Rail and the highway authority for creation of the agreed alternative footpaths;

• “the land plans” means the plans certified as the land plans by the Secretary of State for the purposes of this Order;

• “the land quality report” means the land quality report certified by the Secretary of State as the land quality report for the purposes of this Order;

• “lead local flood authority” means the North Worcestershire Water Management Team and any successor flood authority;

• “limits of deviation” means the limits of deviation referred to in article 6;

• “maintain” includes to inspect, repair, adjust, alter, remove, reconstruct or replace and any derivative of “maintain” is to be construed accordingly;

• “Network Rail” means Network Rail Infrastructure Limited, company number 02904587 registered at Kings Place, 90 York Way, London N1 9AG;

• “the noise assessment report” means the noise assessment report certified by the Secretary of State as the noise assessment report for the purposes of this Order;

• “Order land” means the land shown on the land plans which is within the limits of land to be acquired or used and described in the book of reference;

• “the Order limits” means the limits of deviation shown on the works plans and the limits of land to be acquired or used shown on the land plans;

• “owner”, in relation to land, has the same meaning as in section 7 of the Acquisition of Land Act 1981[^f00012];

• “relevant planning authority” means Bromsgrove District Council or any successor planning authority;

• “statutory undertaker” means any statutory undertaker for the purposes of section 127(8), 128(5) or 129(2) of the 2008 Act;

• “street” means a street within the meaning of section 48 of the 1991 Act, together with land on the verge of a street or between two carriageways, and includes part of a street;

• “street authority”, in relation to a street, has the same meaning as in Part 3 of the 1991 Act;

• “traffic authority”, for the purposes of article 36 (procedure in relation to further approvals etc., other than under Part 2 of Schedule 1), has the same meaning as in Part 3 of the 1991 Act;

• “the tribunal” means the Lands Chamber of the Upper Tribunal;

• “the visual impacts report and landscape plan/strategy” means the visual impacts report and landscape plan/strategy certified by the Secretary of State as the visual impacts report and landscape plan/strategy for the purposes of this Order;

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

• “the waste management plan” means the waste management plan certified by the Secretary of State as the waste management plan for the purposes of this Order; and

• “the works plan” means the plan certified as the works plan by the Secretary of State for the purposes of this Order.

• (2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in, on or under land or in the airspace above its surface.

• (3) All distances, directions and lengths referred to in this Order are approximate and distances between points on a work comprised in the authorised development are taken to be measured along that work.

• (4) References in this Order to points identified by letters, with or without numbers, are to be construed as references to points so lettered on the relevant plans.

• (5) References in this Order to numbered works are references to the works as numbered in Part 1 of Schedule 1.

Incorporation of the Railway Clauses Acts

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• (1) The following provisions of the Railways Clauses Consolidation Act 1845[^f00013] are incorporated in this Order—

• section 46 (crossing of roads – level crossings), subject to paragraph (4);

• section 58 (company to repair roads used by them), except for the words from “and if any question” to the end;

• section 61 (company to make sufficient approaches and fences to highways crossing on the level);

• section 68 (accommodation works by company);

• section 71 (additional accommodation works by owners), except for the words “or directed by such justices to be made by the company” and “or, in case of difference, as shall be authorised by two justices”;

• sections 72 and 73 (supplementary provisions relating to accommodation works);

• section 77 (presumption that minerals excepted from acquisition of land);

• sections 78 to 83, 85 to 85E and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by section 15 of the Mines (Working Facilities and Support) Act 1923[^f00014]; and

• section 105 (carriage of dangerous goods on railway), except for the words from “and if any person” to “for every such offence”.

• (2) The following provisions of the Railways Clauses Act 1863[^f00015] are incorporated in this Order—

• sections 5 and 7 (level crossings); and

• section 12 (signals, watchmen etc.).

• (3) In those provisions, as incorporated in this Order—

• “the company” means Network Rail;

• “goods” includes any thing conveyed on the railway authorised to be constructed by this Order;

• “lease” includes an agreement for a lease;

• “prescribed”, in relation to any such provision means prescribed by this Order for the purposes of that provision;

• “the railway” means any railway authorised to be constructed by this Order and any other authorised development; and

• “the special Act” means this Order.

• (4) In section 46 of the Railways Clauses Consolidation Act 1845, as incorporated in this Order, for the proviso there is substituted “provided always that, with the consent of the highway authority and subject to such conditions as the authority may reasonably impose, the railway may be carried across a highway on the level”.

PART 2 — Principal powers

Development consent etc. granted by the Order

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• (1) Subject to the provisions of this Order and to the requirements in Part 2 (requirements) of Schedule 1 (authorised development and requirements) Network Rail is granted development consent for the authorised development to be carried out within the Order limits.

• (2) Subject to article 6 (limits of deviation) the authorised development comprising the numbered works in Schedule 1 may only be constructed in the lines and situations shown on the works plan and the levels shown on the section drawings.

Maintenance of authorised development

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Network Rail may at any time maintain the authorised development, except to the extent that this Order or an agreement made under this Order provides otherwise.

Limits of deviation

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In carrying out the authorised development comprising the works numbered in Schedule 1 (authorised development and requirements), Network Rail may—

• (a) deviate laterally from the lines or situations of the authorised development shown on the works plan to the extent of the limits of deviation shown on that plan; and

• (b) deviate vertically from the levels of the authorised development shown on the section drawings—

• (i) to any extent not exceeding 1 metre upwards; or

• (ii) to any extent downwards as may be found to be necessary or convenient.

Benefit of Order

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• (1) The provisions of this Order conferring powers on Network Rail have effect solely for the benefit of Network Rail.

• (2) Paragraph (1)—

• (a) is subject to paragraph (5) of article 17 (compulsory acquisition of rights) of this Order; and

• (b) does not apply to the benefit of the consent granted by this Order for works for the benefit of owners and occupiers of land, statutory undertakers and other persons affected by the authorised development.

PART 3 — Streets

Street works

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• (1) Network Rail may, for the purposes of the authorised development, enter on so much of any of the streets specified in Schedule 2 (streets subject to street works) as is within the Order limits and may—

• (a) break up or open the street, or any sewer, drain or tunnel under it;

• (b) tunnel or bore under the street;

• (c) place apparatus under the street;

• (d) maintain apparatus in the street or change its position; and

• (e) execute any works required for or incidental to any works referred to in sub-paragraphs (a), (b), (c) and (d).

• (2) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Public rights of way

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• (1) With effect from the date of commencement, the sections of the public rights of way (being footpaths) specified in column (3) of Parts 1 and 2 of Schedule 3 (footpaths to be stopped up) and shown marked in red on the footpath stopping up and diversion plan are extinguished.

• (2) With effect from the date on which Work No. 1 is first open for use, an alternative section of footpath specified in column (4) of Part 1 of Schedule 3 and as shown marked by vertical zebra hatching on the footpath stopping up and diversion plan is created in accordance with the specification required by the relevant part of the implementation plan.

• (3) Subject to paragraph (4), with effect from the date of commencement, the sections of the public rights of way (being footpaths) described in Parts 1 and 2 of Schedule 4 (footpaths to be temporarily suspended) and shown marked in orange on the footpath stopping up and diversion plan may be temporarily suspended until the date on which Work No.1 is first open for use.

• (4) The sections of footpath referred to in column (3) of Part 1 of Schedule 4 may not be temporarily suspended until an alternative section of temporary footpath described in Column (4) of Part 1 of Schedule 4 and as shown marked green on the footpath stopping up and diversion plan is provided in accordance with the relevant part of the implementation plan.

• (5) With effect from the date on which Work No. 1 is first open for use the section of temporary alternative footpath described in Column (4) of Part 1 of Schedule 4 is to be extinguished.

• (6) Section 31 (withdrawal of notices to treat) of the Land Compensation Act 1961 does not apply to any part of any of the Order land that is subject to a public right of way.

• (7) If on the date of commencement Network Rail has not taken entry on land that formed part of a public right of way referred to in paragraph (1) or vested in itself such land then Network Rail is deemed on commencement to have taken entry onto such land for the purposes of section 11(1) of the 1965 Act.

Application of the 1991 Act

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• (1) Works carried out under this Order in relation to a highway which consists of or includes a carriageway are to be treated for the purposes of Part 3 of the 1991 Act (street works in England and Wales) as major transport works if—

• (a) they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (h) of section 86(3) of that Act (which defines what highway authority works are major highway works); or

• (b) they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64 of the 1980 Act (dual carriageways and roundabouts).

• (2) The provisions of the 1991 Act mentioned in paragraph (3) (which, together with other provisions of that Act, apply in relation to the carrying out of street works) and any regulations made, or code of practice issued or approved, under those provisions apply (with the necessary modifications) in relation to the carrying out of street works under article 8 (street works) whether or not the carrying out of such works constitutes street works within the meaning of that Act.

• (3) The provisions of the 1991 Act referred to in paragraph (2) are—

• section 54 (advance notice of certain works), subject to paragraph (4);

• section 55 (notice of starting date of works), subject to paragraph (4);

• section 57 (notice of emergency works);

• section 59 (general duty of street authority to co-ordinate works);

• section 60 (general duty of undertakers to co-operate);

• section 68 (facilities to be afforded to street authority);

• section 69 (works likely to affect other apparatus in the street);

• section 76 (liability for cost of temporary traffic regulation);

• section 77 (liability for cost of use of alternative route); and all such other provisions as apply for the purposes of the provisions mentioned above.

• (4) Sections 54 and 55 of the 1991 Act as applied by paragraph (2) have effect as if references in section 57 of that Act to emergency works included a reference to a stopping up, alteration or diversion (as the case may be) required in a case of emergency.

Access to works

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Network Rail may, for the purposes of the authorised development—

• (a) form and lay out means of access, or improve existing means of access, in the locations specified in columns (1) and (2) of Schedule 5 (access to works) and shown on the access to works and traffic regulation plan; and