The Boston Barrier Order 2017

• (3) The Agency must not make any byelaws under this article without the consent of the Harbour Authority.

• (4) The Harbour Authority must not withhold its consent to the making of any byelaw except on the ground that it conflicts with or duplicates a byelaw of the Harbour Authority or interferes with the exercise of its statutory functions, and any unresolved question whether there is any such conflict or duplication or interference is to be determined in accordance with article 67 (arbitration).

• (5) Nothing in any byelaw made under this article applies to anything done by the Harbour Authority in the exercise of any of its statutory functions and the byelaws of the Harbour Authority are unaffected by any byelaw made under this article.

• (6) Byelaws under this article may provide for it to be an offence for a person to contravene, or to fail to comply with, a provision of the byelaws and for such a person to be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

• (7) The provisions of sections 236(3) to (8) and (11) and 238 of the Local Government Act 1972 (which relates to the procedure for making, and evidence of, byelaws)[^f00064] apply to any byelaws made by the Agency under this article.

• (8) In its application to byelaws made under this article by the Agency, section 236 of the Local Government Act 1972 has effect as if in subsection (7), after the word “confirm” where it first occurs, the words “with or without modification” were inserted.

• (9) The confirming authority for the purposes of section 236 of the Local Government Act 1972 in its application to byelaws made under this article is the Secretary of State.

• (10) The Secretary of State may charge the Agency a reasonable fee for the purpose of defraying any administrative expenses incurred by the Secretary of State in respect of byelaws made under this article which are submitted to the Secretary of State for confirmation.

• (11) Where in relation to any byelaws submitted to the Secretary of State for confirmation the Secretary of State proposes to make a modification which appears to the Secretary of State to be substantial the Secretary of State must inform the Agency and require it to take any steps the Secretary of State considers necessary for informing persons likely to be concerned with the modification and must not confirm the byelaws until such period has elapsed as the Secretary of State thinks reasonable for consideration of, and comment upon, the proposed modification by the Agency and by other persons who have been informed of it.

• (12) Save where expressly stated otherwise within this Order, “navigation” includes navigation for recreational purposes except that for the purposes of sub-paragraph (2)(a) of this article, “recreational activities” does not include navigation for recreational purposes.

PART 6 — PROTECTIVE PROVISIONS

Statutory undertakers, etc.

53

Schedule 6 (statutory undertakers, etc.) has effect.

Protective Provisions

54

Schedule 7 (protection for electricity, gas, water and sewerage undertakers) and Schedule 8 (protection of Port of Boston) have effect.

Saving for Trinity House

55

Nothing in this Order prejudices or derogates from any of the powers, rights or privileges, or the jurisdiction or authority, of Trinity House.

Crown rights

56

• (1) Nothing in this Order affects prejudicially any estate, right, power, privilege or exemption of the Crown and in particular, nothing in this Order authorises the Agency or any other person to take, use, enter upon or in any manner interfere with any land or hereditament or any rights of any description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary)—

• (a) belonging to Her Majesty in right of the Crown and forming part of the Crown Estate without the consent in writing of the Crown Estate Commissioners;

• (b) belonging to Her Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or

• (c) belonging to a government department or held in trust for Her Majesty for the purposes of a government department without the consent in writing of that government department.

• (2) Consent under this article may be given unconditionally or subject to such terms or conditions as are considered necessary or appropriate.

Minerals

57

Nothing in this Order affects the rights of any person entitled to any mine or minerals of any description whatsoever under a street or other land in, on, or adjacent to which the authorised works are constructed to work the mine or get the minerals but this does not affect any liability (whether civil or criminal) of the person so entitled in respect of any damage to the authorised works resulting from the exercise of any such rights.

PART 7 — MISCELLANEOUS AND GENERAL

Temporary traffic regulation

58

• (1) Subject to the provisions of this article, the Agency may, so far as is necessary or expedient for the purposes of or in connection with construction of the authorised works—

• (a) revoke, amend or suspend in whole or in part any order made, or having effect as if made, under the 1984 Act;

• (b) permit, prohibit or restrict the stopping, waiting, loading or unloading of vehicles on any road;

• (c) suspend or authorise the use as a parking place of any road;

• (d) make provision as to the direction or priority of vehicular traffic on any road; and

• (e) permit or prohibit vehicular access to any road,

either at all times or at times, on days or during such periods as may be specified by the Agency.

• (2) The powers conferred by paragraph (1) may only be exercised after the Agency has—

• (a) consulted the chief officer of police, the traffic authority and such other persons as it considers necessary and appropriate;

• (b) taken into consideration any representations made to it by any such persons consulted; and

• (c) obtained the consent of the traffic authority in whose area the road concerned is situated (which must not be unreasonably withheld or delayed).

• (3) The Agency must not exercise the powers conferred by this article in relation to any road unless it has—

• (a) given not less than 4 weeks’ notice in writing of its intention to do so to the chief officer of police and to the traffic authority in whose area the road is situated; and

• (b) advertised its intention in such manner as the traffic authority may, within 7 days of its receipt of notice of the Agency’s intention, specify in writing.

• (4) Any prohibition, suspension or other provision made by the Agency under paragraph (1) has effect as if duly made by, as the case may be—

• (a) the traffic authority in whose area the road is situated, as a traffic regulation order under the 1984 Act; or

• (b) the local authority in whose area the road is situated, as an order under section 32 (power of local authorities to provide parking places)[^f00065] of the 1984 Act,

and the instrument by which it is effected may specify savings and exemptions to which the prohibition, restriction or other provision is subject.

• (5) Any prohibition, restriction or other provision made under this article may be suspended, varied or revoked by the Agency from time to time by subsequent exercise of the powers conferred by paragraph (1).

• (6) Expressions used in this article and in the 1984 Act have the same meaning in this article as in that Act.

• (7) The powers conferred on the Agency by this article with respect to any road have effect subject to any agreement entered into by the Agency with any person with an interest in (or who undertakes activities in relation to) premises served by the road.

Power of disposal, agreements for operation, etc.

59

• (1) Subject to paragraph 2, the Agency may, with the consent of the Secretary of State, sell, lease, charge or otherwise dispose of, on such terms and conditions as it thinks fit, the whole or any part of the authorised works and any land held in connection with them.

• (2) Nothing in paragraph (1) requires the Agency to secure the consent of the Secretary of State before transferring ownership of any structures comprised within Work Nos. 3A and 3B to the Harbour Authority.

• (3) Without limitation on the scope of paragraph (1), the Agency may enter into and carry into effect agreements with respect to any of the following matters, namely, the construction, maintenance, use and operation of the authorised works, or any part or parts of them, by any other person, and other matters incidental or subsidiary to, or consequential on those matters and the defraying of, or the making of contributions towards, the costs of those matters by the Agency or any other person.

• (4) Any agreement under paragraph (3) may provide, amongst other things, for the exercise of the powers of the Agency in respect of the authorised works or any part of them and for the transfer to any person of the authorised works or any part of them together with the rights and obligations of the Agency in relation to them.

• (5) Where an agreement has been made by virtue of paragraph (3) references in this Order to the Agency include references to the transferee or the lessee.

• (6) The exercise of the powers conferred by any enactment by any person further to any sale, lease, charge or disposal under paragraph (1), or any agreement under paragraph (3), is subject to the same restrictions, liabilities and obligations as would apply under this Order if those powers were exercised by the Agency.

• (7) The Agency must not under this article sell, lease, charge or otherwise dispose of, any rights conferred by article 52 (byelaws).

Obstructing execution of Order

60

Any person who, without reasonable excuse, obstructs any person acting under the authority of the Agency in setting out the lines of the scheduled works, or in constructing any authorised work or who interferes with, moves or removes any apparatus belonging to any such person is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Defence of due diligence

61

• (1) In proceedings for an offence under Part 3 (provisions relating to tidal works), it is a defence for the Agency to prove that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

• (2) If in any case the defence provided under paragraph (1) involves the allegation that the commission of the offence was due to the act or default of another person, the Agency must not, without leave of the court, be entitled to rely on that defence unless, not less than 7 clear days before the hearing, it has served on the prosecutor a notice in writing giving such information as was then in its possession, identifying or assisting in the identification of, that other person.

Application of landlord and tenant law

62

• (1) This article applies to any agreement for leasing to any person the whole or any part of the authorised works or the right to operate those works, and any agreements entered into by the Agency with any person for the construction, maintenance, use or operation of the authorised works, or any part of them, so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

• (2) No enactment or rule of law regulating the rights and obligations of landlords and tenants prejudices the operation of any agreement to which this article applies.

• (3) No such enactment or rule of law applies in relation to the rights and obligations of the parties to any lease granted by or under any such agreement so as to—

• (a) exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to termination of the tenancy or any other matter;

• (b) confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

• (c) restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Defence to proceedings in respect of statutory nuisance

63

• (1) Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990[^f00066] in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance)[^f00067] no order may be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows—

• (a) that the nuisance relates to premises used by the Agency for the purposes of or in connection with the exercise of powers conferred by this Order with respect to the authorised works and that the nuisance is attributable to the carrying out of the authorised works which are being carried out in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 61 (prior consent for work on construction sites)[^f00068] of the Control of Pollution Act 1974[^f00069]; or

• (b) that the nuisance is a consequence of the operation of the authorised works and that it cannot reasonably be avoided.

• (2) Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the Agency for the purposes of or in connection with the exercise of powers conferred by this Order with respect to works.

Disclosure of confidential information

64

A person who—

• (a) enters a factory, workshop or workplace under the provisions of article 21 (protective works) or article 23 (power to survey and investigate land, etc.); and

• (b) discloses to any person any information obtained as a result of that entry and relating to any manufacturing process or trade secret,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale unless disclosure is made in the course of that person’s performance of a duty in connection with the purposes for which the person was authorised to enter the land.

Local legislation

65

• (1) The following do not apply to the extent that they are inconsistent with a provision of, or a power conferred by, this Order—

• (a) any provision of the local enactments specified in Part 1 of Schedule 9 (amendment of local legislation);

• (b) any byelaws or other provisions made under any of those enactments; and

• (c) the local byelaws specified in Part 2 of that Schedule.

• (2) For the purpose of paragraph (1) a provision is inconsistent with the exercise of a power conferred by this Order if and to the extent that (in particular)—

• (a) it would make it an offence to take action, or not to take action, in pursuance of a power conferred by this Order;

• (b) action taken in pursuance of a power conferred by this Order would cause the provision to apply so as to enable a person to require the taking of remedial or other action or so as to enable remedial or other action to be taken; or

• (c) action taken in pursuance of a power or duty under the provisions would or might interfere with the exercise of any work authorised by this Order.

• (3) Where any person notifies the Agency in writing that anything done or proposed to be done by the Agency by virtue of this Order would amount to a contravention of a statutory provision of local application, the Agency must as soon as reasonably practicable, and, at any rate within 14 days of receipt of the notice, respond in writing setting out—

• (a) whether the Agency agrees that the action taken or proposed to does or would contravene the provision of local application;

• (b) if the Agency does agree, the grounds (if any) on which the Agency believes that the provision is excluded by this article; and

• (c) the extent of that exclusion.

Certification of plans etc.

66

The Agency must, as soon as practicable after the making of this Order, submit copies of the book of reference, the sections, the land plans, the public rights of way plan and the works plan to the Secretary of State for certification that they are respectively true copies of the book of reference, sections and plans referred to in this Order; and a document so certified is admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Arbitration

67

Unless otherwise provided in this Order, any difference under any provision of this Order is to be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after giving notice in writing to the other) by the President of the Institution of Civil Engineers.

No double recovery

68

Compensation is not payable in respect of the same matter both under this Order and any other enactment, any contract or any rule of law, or under two or more different provisions of this Order.

Service of notices

69

• (1) A notice or other document required or authorised to be served for the purposes of this Order may be served—

• (a) by post; or

• (b) with the consent of the recipient and subject to paragraphs (6) to (8), by electronic transmission.

• (2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

• (3) For the purposes of section 7 (references to service by post) of the Interpretation Act 1978[^f00070] as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address, and otherwise—

• (a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

• (b) in any other case, that person’s last known address at the time of service.

• (4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and the name or address of that person cannot be ascertained after reasonable enquiry, the notice may be served by—

• (a) addressing it to that person by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and

• (b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

• (5) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement is fulfilled where the recipient of the notice or other document has given consent to the use of electronic transmission either in writing or by electronic transmission.

• (6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that the recipient requires a paper copy of all or any part of that notice or other document, the sender must provide such a copy as soon as reasonably practicable.

• (7) Any consent to the use of electronic communication given by a person may be revoked by that person in accordance with paragraph (8).

• (8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order—

• (a) that person must give notice in writing or by electronic transmission revoking any consent given by that person for that purpose; and

• (b) such revocation is final and takes effect on a date specified by the person in the notice but that date must not be less than 7 days after the date on which the notice is given.

• (9) This article does not exclude the employment of any method of service not expressly provided for by it.

SCHEDULE 1 — SCHEDULED WORKS

In the Borough of Boston, Lincolnshire

• Work No.1 — A barrier, with a rising sector gate, across the Haven, at a location situated approximately 100 metres eastwards of the Black Sluice Complex, including reclamation on the left bank of the Haven, the removal of the existing loading jetty on the right bank of the Haven and providing a channel width of 25 metres. Work No.1 includes scour protection and flood defence walls linking to other flood defences, the installation of perimeter fencing and other structures.

• Work No.2 — A building for control and associated purposes in relation to Work No.1, at a location situated on the left bank of the Haven adjacent to the barrier which forms part of Work No.1. Work No.2 includes the construction of hardstanding areas for storage, use by heavy goods vehicles, parking, a crane pad and the installation of perimeter fencing.

• Work No.3A — A replacement gate across the existing entrance to the Wet Dock, at a location situated 170 metres westwards of Maud Foster Sluice, providing a channel width when open of not less than 18 metres together with an associated structure for control of the replacement gate.

• Work No.3B — Works to widen the river channel within the existing entrance to the Wet Dock.

• Work No.3C — Works to widen the river channel within the existing entrance to the Wet Dock.

• Work No.4A — Flood defence walls along the left bank of the Haven including a sheet piled wall along the existing quay frontage, 360 metres in length, together with a concrete/sheet piled flood wall 610 metres in length, commencing at the termination point of Work No.1 and terminating at the Wet Dock. Work No.4A includes the construction of vehicular access gates, each with an opening width of between 6 and 10 metres, and scour protection.

• Work No.4B — Flood defence walls along the left bank of the Haven including a concrete flood wall, 180 metres in length, commencing at the Wet Dock and terminating at Maud Foster Sluice. Work No.4B includes the construction of vehicular access gates, each with an opening width of between 6 and 10 metres.

• Work No.5A— Flood defence walls along the right bank of the Haven including a sheet piled wall with concrete capping beam along the existing embankment, 110 metres in length, commencing at the Black Sluice Complex and terminating at the commencement point of Work No.1.

• Work No.5B — Flood defence walls along the right bank of the Haven including a sheet piled wall with concrete capping beam along the existing embankment, 430 metres in length, commencing at the termination point of Work No.1 and terminating at TF 3324 4291. Work No.5B includes scour protection and includes the incorporation of an existing surface water discharge pipe.

• Work No.6 — Upgrading of an existing road within the Port of Boston, 650 metres in length, commencing at the existing entrance to the Port of Boston which lies adjacent to St John’s Road and terminating at Work No.2.

• Work No.7 — 3no. (11kv) electricity cables (185 metres in length), being a 200 metres diversion of 3no. existing (11kv) electricity cables, commencing at TF 3283 4275 and terminating at the junction of Wyberton Low Road with London Road.

• Work No.8 — Replacement of and extension to an existing grain tower and conveyor system (ship loading facility) at a location adjacent to Work No.4A.

SCHEDULE 2 — STREETS TO BE TEMPORARILY STOPPED UP

(1) Area	(2) Street to be temporarily stopped up	(3) Extent of temporary stopping up
Borough of Boston, Lincolnshire	Public Footpath Bost/14/1	Footpath stopped up to all traffic between the points marked ‘A’ and ‘B’ on the public rights of way plan
Borough of Boston, Lincolnshire	Public Footpath Bost/14/2	Footpath stopped up to all traffic between the points marked ‘B ‘and ‘C’ on the public rights of way plan
Borough of Boston, Lincolnshire	Public Footpath Bost/14/12	Footpath stopped up to all traffic between the points marked ‘B’ and ‘C’ on the public rights of way plan
Borough of Boston, Lincolnshire	Wyberton Low Road (in part)	Street stopped up to vehicular traffic only (other than a section of highway, separated from the footway, of a width not less than 2 metres which shall be retained at all times for use by cyclists) between the points marked ‘D’ and ‘E’ on the public rights of way plan

SCHEDULE 3 — MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1

The enactments for the time being in force with respect to compensation for the compulsory purchase of land apply, with the necessary modifications as respects compensation, in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2

• (1) Without limitation on the scope of paragraph 1, the Land Compensation Act 1973[^f00071] has effect subject to the modifications set out in sub-paragraph (2).

• (2) In section 44 (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 (measure of compensation in case of severance) of the 1965 Act as substituted by paragraph 4—

• (a) in subsection (1), for the words “land is acquired or taken” substitute “a right over land is purchased”; and

• (b) in subsection (1), for the words “acquired or taken from him” substitute “over which the right is exercisable”.

3

• (1) Without limitation on the scope of paragraph 1, the 1961 Act has effect subject to the modification set out in sub-paragraph (2).

• (2) For section 5A(5A) (relevant valuation date) of the 1961 Act, after “if” substitute—

(a) the acquiring authority enters on land for the purpose of exercising a right in pursuance of a notice of entry under section 11(1) of the 1965 Act; (b) the acquiring authority is subsequently required by a determination under paragraph 13 of Schedule 2A to the 1965 Act (as substituted by paragraph 10 of Schedule 3 to the Boston Barrier Order 2017) to acquire an interest in the land; and (c) the acquiring authority enters on and takes possession of that land, the authority is deemed for the purposes of subsection (3)(a) to have entered on that land where it entered on that land for the purpose of exercising that right.

4

• (1) The 1965 Act has effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are to be read (according to the requirements of the particular context) as referring to, or as including references to—

• (a) the right acquired or to be acquired; or

• (b) the land over which the right is or is to be exercisable.

• (2) Without limitation on the scope of sub-paragraph (1), Part 1 (compulsory purchase under Acquisition of Land Act of 1946) of the 1965 Act applies in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

5

For section 7 (measure of compensation in case of severance) of the 1965 Act, substitute—

(7) In assessing the compensation to be paid by the acquiring authority under this Act regard must be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.

6

The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

• (a) section 9(4) (failure by owners to convey);

• (b) paragraph 10(3) of Schedule 1 (owners under incapacity);

• (c) paragraph 2(3) of Schedule 2 (absent and untraced owners); and

• (d) paragraph 2(3) and 7(2) of Schedule 4 (common land),

are modified so as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

7

Section 11 (powers of entry)[^f00072]of the 1965 Act is modified so as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right, it has power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which is to be deemed for this purpose to have been created on the date of service of the notice); and sections 12[^f00073] (penalty for unauthorised entry) and 13[^f00074] (entry on warrant in the event of obstruction) of the 1965 Act are modified correspondingly.

8

Section 20[^f00075] (protection for interests of tenants at will etc.) of the 1965 Act applies with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

9

Section 22 (interests omitted from purchase) of the 1965 Act is modified so as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

10

For Schedule 2A of the 1965 Act substitute—

SCHEDULE2A (1) This Schedule applies where an acquiring authority serves a notice to treat in respect of a right over, or restrictive covenant affecting, the whole or part of a house, building or factory and has not executed a general vesting declaration under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981[^f00076] as applied by article 33 (application of the Compulsory Purchase (Vesting Declarations) Act 1981) in respect of the land to which the notice to treat relates. (2) In this Schedule, “house” includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the acquiring authority to purchase the owner’s interest in the house, building or factory. (4) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter-notice, the acquiring authority must decide whether to— (a) withdraw the notice to treat, (b) accept the counter-notice, or (c) refer the counter-notice to the Upper Tribunal. (6) The acquiring authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the acquiring authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period. (8) If the acquiring authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the acquiring authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (10) On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right or the imposition of the restrictive covenant would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making its determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right or the imposition of the covenant, (b) the use to be made of the right or covenant proposed to be acquired or imposed, and (c) if the right or covenant is proposed to be acquired or imposed for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right or the imposition of the covenant would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the acquiring authority ought to be required to take. (13) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (14) (1) If the Upper Tribunal determines that the acquiring authority ought to be required to take some or all of the house, building or factory, the acquiring authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph it must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice. (15) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 4 — ACQUISITION OF NEW RIGHTS ONLY

(1) Area	(2) Number of land shown on the Order plans	(3) Purpose for which new rights may be acquired
Borough of Boston, Lincolnshire	2	Operation and maintenance of Work Nos. 1, 2, 3A, 3B, 4A, 4B, 8A and 8B
Borough of Boston, Lincolnshire	10, 13	Operation and maintenance of Work Nos. 3A, 3B and 4B
Borough of Boston, Lincolnshire	16	Operation and maintenance of Work Nos. 3A, 3B, 4A and 4B
Borough of Boston, Lincolnshire	17	Operation and maintenance of Work Nos. 4A and 4B
Borough of Boston, Lincolnshire	33, 38, 41	Operation and maintenance of Work No.5B
Borough of Boston, Lincolnshire	46	Operation and maintenance of Work Nos. 4A, 4B, 8A and 8B
Borough of Boston, Lincolnshire	50a, 53a	Operation and maintenance of services associated with Work Nos. 1 and 2
Borough of Boston, Lincolnshire	53b, 59, 61	Operation and maintenance of Work Nos.4A, 8A and 8B
Borough of Boston, Lincolnshire	54	Operation and maintenance of services associated with Work Nos. 1 and 2
Borough of Boston, Lincolnshire	69	Access for operation and maintenance of Work Nos.1, 5A and 5B

SCHEDULE 5 — LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

(1) Area	(2) Number of land shown on the Order plans	(3) Purpose for which temporary possession may be taken
Borough of Boston, Lincolnshire	1, 4	Alternative construction access and construction of authorised works
Borough of Boston, Lincolnshire	3, 28, 29, 30, 31, 32, 49	Construction access
Borough of Boston, Lincolnshire	5	Alternative construction access
Borough of Boston, Lincolnshire	6, 7, 47, 48, 50, 50b, 52, 55, 111, 112, 113, 114	Construction of authorised works
Borough of Boston, Lincolnshire	8	Construction compound and construction of authorised works
Borough of Boston, Lincolnshire	9, 11, 12, 18, 19, 20	Construction of Work Nos. 3A, 3B and 4B
Borough of Boston, Lincolnshire	14	Construction of Work No.4B
Borough of Boston, Lincolnshire	15	Construction of Work Nos. 3A, 3B and 4B and mitigation works
Borough of Boston, Lincolnshire	21	Construction of authorised works and capital dredging works
Borough of Boston, Lincolnshire	22, 23, 23a, 24, 25, 26	Accommodation and mitigation works
Borough of Boston, Lincolnshire	27	Temporary storage of dredged materials
Borough of Boston, Lincolnshire	44	Construction of Work No.4A and Work No.5B and capital dredging works
Borough of Boston, Lincolnshire	50c, 51	Construction of Work No.4A
Borough of Boston, Lincolnshire	53	Construction of Work Nos. 4A, 8A and 8B
Borough of Boston, Lincolnshire	62	Capital dredging works and provision of temporary mooring facilities for fishing vessels
Borough of Boston, Lincolnshire	66, 67	Capital dredging works
Borough of Boston, Lincolnshire	70	Construction access for Work No.7
Borough of Boston, Lincolnshire	71, 107, 108	Construction of Work No.7
Borough of Boston, Lincolnshire	72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 110	Protective works
Borough of Boston, Lincolnshire	109	Construction of Work No.5A and Work No.5B

SCHEDULE 6 — STATUTORY UNDERTAKERS, ETC.

Apparatus of statutory undertakers etc. on land acquired

1

• (1) Sections 271 to 274[^f00077] (extinguishment of rights of statutory undertakers etc. and power of statutory undertakers etc. to remove or re-site apparatus) of the 1990 Act apply in relation to any land acquired or appropriated by the Agency under this Order subject to the following provisions of this paragraph; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282[^f00078], which provide for the payment of compensation) have effect accordingly.

• (2) In the provisions of the 1990 Act, as applied by sub-paragraph (1), references to the appropriate Minister are references to the Secretary of State.

• (3) Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by sub-paragraph (1), any person who is the owner or occupier of premises to which a supply was given from that apparatus is entitled to recover from the Agency compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

• (4) Sub-paragraph (3) does not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

• (a) the owner or occupier of premises the drains of which communicated with that sewer; or

• (b) the owner of a private sewer which communicated with that sewer,

is entitled to recover from the Agency compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the drain or sewer communicate with any other public sewer or with a private sewage disposal plant.

• (5) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, do not have effect in relation to apparatus as respects which Part 3 of the 1991 Act applies.

• (6) In this Schedule—

• “public communications provider” has the same meaning as in section 151(1) (interpretation of Chapter 1) of the Communications Act 2003[^f00079]; and

• “public utility undertakers” has the same meaning as in the 1980 Act[^f00080].

SCHEDULE 7 — PROTECTION FOR ELECTRICITY, GAS, WATER AND SEWERAGE UNDERTAKERS

Interpretation

1

• (1) The following provisions of this Schedule have effect unless otherwise agreed in writing between the Agency and the specified undertaker concerned.

• (2) The provisions of Schedule 6 (statutory undertakers, etc.), in so far as they relate to the removal of apparatus, do not apply in relation to apparatus to which this Schedule applies.

2

In this Schedule—

• “alternative apparatus” means alternative apparatus adequate to enable the specified undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

• “apparatus” means— in the case of an electricity undertaker, electric lines or electrical plant (as defined in the Electricity Act 1989[^f00081]) belonging to or maintained by that specified undertaker; in the case of a gas undertaker, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply; in the case of a water undertaker— mains, pipes or other apparatus belonging to or maintained by that specified undertaker for the purposes of water supply; and mains, pipes or other apparatus that is the subject of an agreement to adopt made under section 51A (agreements to adopt water main or service pipe) of the Water Industry Act 1991[^f00082]; and in the case of a sewerage undertaker— any drain or works vested in the specified undertaker under the Water Industry Act 1991; and any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) (adoption of sewers and disposal works) of that Act or an agreement to adopt made under section 104 (agreement to adopt sewer, drain or sewage disposal works, at future date) of that Act, and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or works, and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

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

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

• “specified undertaker” means— Western Power Distribution (East Midlands) plc, whose registered office is Avonbank, Feeder Road, Bristol, BS2 0TB; and Anglian Water Services Limited, whose registered office is Lancaster House, Lancaster Way, Ermine Business Park, Huntingdon, Cambridgeshire, United Kingdom, PE29 6XU, or any person succeeding any such company as a licence holder within the meaning of Part 1 of the Electricity Act 1989, a gas transporter within the meaning of Part 1 of the Gas Act 1986[^f00083], a water undertaker within the meaning of the Water Industry Act 1991, or as a sewerage undertaker, and “the specified undertaker” in relation to any apparatus means the specified undertaker to whom the apparatus belongs or by whom it is maintained.

On-street apparatus

3

This Schedule does not apply to anything done or proposed to be done in relation to or affecting apparatus in respect of which the relations between the Agency and the specified undertaker are regulated by the provisions of Part 3 of the 1991 Act.

Acquisition of land

4

• (1) Regardless of any provision in this Order or anything shown on the deposited plans the Agency must not acquire any apparatus other than by agreement with the specified undertaker.

• (2) The Agency may, in the exercise of the powers conferred by this Order, acquire or appropriate any interest in any land in which any apparatus is placed and, following the removal of such apparatus in accordance with the provisions of this Schedule, any rights in that land relating to that apparatus are extinguished, but that apparatus must not be removed under this Schedule and any right of a specified undertaker to use, maintain or renew that apparatus in that land must not be extinguished, until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the specified undertaker in question.

Removal of apparatus

5

• (1) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, the Agency requires the removal of any apparatus placed in that land, it must give to the specified undertaker in question written notice of that requirement, together with plans of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order a specified undertaker reasonably needs to remove any of its apparatus) the Agency must, subject to sub-paragraph (3), afford to the specified undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of the Agency and for the subsequent use, maintenance and renewal of that apparatus.

• (2) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of the Agency, or the Agency is unable to afford such facilities and rights as are mentioned in sub-paragraph (1), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the specified undertaker in question must, on receipt of a written notice to that effect from the Agency, as soon as reasonably possible use reasonable endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

• (3) The obligation imposed on the specified undertaker under sub-paragraph (2) does not extend to the exercise by the specified undertaker of any power to acquire any land or rights in land by compulsory purchase order.

• (4) Any alternative apparatus to be constructed in land of the Agency under this Schedule is to be constructed in such manner and in such line or situation as may be agreed between the specified undertaker in question and the Agency or in default of agreement settled by arbitration in accordance with article 67 (arbitration).

• (5) The specified undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 67 (arbitration), and after the grant to the specified undertaker of any such facilities and rights as are referred to in sub-paragraphs (1) or (2), proceed with all reasonable despatch to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by the Agency to be removed under the provisions of this Schedule.

• (6) Regardless of anything in sub-paragraph (5), if the Agency gives notice in writing to the specified undertaker in question that it desires itself to execute any work to which this sub-paragraph applies, that work, instead of being executed by the specified undertaker, may be executed by the Agency with the prior written consent of the specified undertaker (which must not be unreasonably withheld or delayed and is to be subject to any such conditions as are reasonable and proper to protect the apparatus) in accordance with plans and in a position agreed between the specified undertaker and the Agency or, in default of agreement, determined by arbitration, with all reasonable despatch under the superintendence, if given, and to the reasonable satisfaction of the specified undertaker.

• (7) In carrying out any work under sub-paragraph (6) the Agency must comply with all statutory obligations which would have been applicable had the works been carried out by the specified undertaker.

• (8) Sub-paragraph (6) applies to any part of any work necessary in connection with construction of alternative apparatus, or the removal of apparatus required to be removed, as will take place in any land of the Agency.

• (9) Nothing in sub-paragraph (6) authorises the Agency to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 600 millimetres of the apparatus.

Facilities and rights for alternative apparatus

6

• (1) Where, in accordance with the provisions of this Schedule, the Agency affords to a specified undertaker facilities and rights for the construction, use, maintenance and renewal in land of the Agency of alternative apparatus in substitution for apparatus to be removed, those facilities and rights must be granted upon such terms and conditions as may be agreed between the Agency and the specified undertaker in question or in default of agreement settled by arbitration in accordance with article 67 (arbitration).

• (2) In settling those terms and conditions in respect of the alternative apparatus to be constructed across or along the authorised works, the arbitrator must—

• (a) give effect to all reasonable requirements of the Agency for ensuring the safety and efficient operation of the authorised works and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the Agency or the traffic on the railway; and

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

• (3) If the facilities and rights to be afforded by the Agency in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator more or less favourable on the whole to the specified undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation to or by the Agency by or to that specified undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

Retained apparatus: protection and plan approval

7

• (1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5(1) that are near to, or will or may affect, any apparatus the removal of which has not been required by the Agency under paragraph 5(1), the Agency must submit to the specified undertaker in question plans of those works.

• (2) Those works are to be executed only in accordance with the plans submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the specified undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and an officer of the specified undertaker is entitled to watch and inspect the execution of those works.

• (3) Any requirements made by the specified undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which the plans under sub-paragraph (1) are submitted to it.

• (4) If a specified undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by the Agency, reasonably requires the removal of any apparatus and gives written notice to the Agency of that requirement, paragraphs 1 to 6 apply as if the removal of the apparatus had been required by the Agency under paragraph 5(1).

• (5) Nothing in this paragraph precludes the Agency from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, new plans instead of the plans previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plans.

• (6) The Agency is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the specified undertaker in question notice as soon as is reasonably practicable and plans of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

• (7) Nothing in sub-paragraph (6) entitles the Agency to carry out works to any apparatus but, upon receipt of notice from the Agency, the specified undertaker must proceed to carry out such works as may be required without unreasonable delay.

Expenses

8

• (1) Subject to the following provisions of this paragraph, the Agency must repay to a specified undertaker the reasonable expenses incurred by that specified undertaker in, or in connection with—

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

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

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

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

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

• (3) If in accordance with the provisions of this Schedule—

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

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

and the placing of apparatus of that type or capacity or those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by the Agency or, in default of agreement, is not determined by arbitration in accordance with article 67 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Schedule exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this paragraph would be payable to the specified undertaker in question by virtue of sub-paragraph (1), is to be reduced by the amount of that excess.

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

• (a) an extension of apparatus to a length greater than the length of existing apparatus must not be treated as placing of apparatus of greater dimensions than those of the existing apparatus, except in a case where the apparatus as so extended serves a purpose (either additional to or instead of that served by the existing apparatus) which was not served by the existing apparatus; and

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

• (5) An amount which apart from this sub-paragraph would be payable to a specified undertaker in respect of works by virtue of sub-paragraph (1) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the specified undertaker any financial benefit by deferment of the time for renewal of the apparatus in the normal course, be reduced by the amount which represents that benefit as calculated in accordance with the Code of Practice entitled “Measures Necessary where Apparatus is Affected by Major Works (Diversionary Works)” and dated June 1992 and approved by the Secretary of State on 30th June 1992, as revised and re-issued from time to time.

• (6) In any case where work is carried out by the Agency under paragraphs 5(6) to (8) and, if such work had been carried out by the specified undertaker, the repayment made to the specified undertaker under sub-paragraph (1) would fall to be reduced under sub-paragraphs (3) to (5), the specified undertaker must pay to the Agency such sum as represents the amount of that reduction.

Indemnity

9

• (1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction, maintenance or failure of any of the authorised works, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of a specified undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any specified undertaker, the Agency must bear and pay the cost reasonably incurred by that specified undertaker in making good such damage or restoring the supply, and must—

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

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

by reason or in consequence of any such damage or interruption; and the fact that any act or thing may have been done by the specified undertaker on behalf of the Agency or in accordance with plans approved by the specified undertaker or in accordance with any requirement of the specified undertaker or under its supervision does not, subject to sub-paragraph (2), excuse the Agency from any liability under the provisions of this paragraph.

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

• (3) A specified undertaker must give the Agency reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the Agency, which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

Access

10

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

Cooperation

11

Where in consequence of the proposed construction of any of the authorised works, the Agency or the specified undertaker requires the removal of apparatus under paragraph 5(1) or the specified undertaker makes requirements for the protection or alteration of apparatus under paragraph 7(2), the Agency must use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and the specified undertaker must use all reasonable endeavours to co-operate with the Agency for that purpose.

Exercise of safeguarding and survey powers

12

• (1) The Agency must, so far as is reasonably practicable, exercise the powers conferred by article 21 (protective works) so as not to obstruct or render less convenient the access to any apparatus.

• (2) The Agency must not, in the exercise of the powers conferred by section 11(3) (powers of entry) of the 1965 Act, as applied by this Order, or by article 23 (power to survey and investigate land, etc.), make any trial holes which interfere with any apparatus without the consent of the specified undertaker (which must not be unreasonably withheld).

Arbitration

13

Any difference arising between the Agency and a specified undertaker under this Schedule (other than a difference as to its meaning or construction) must be determined by arbitration in the manner provided by article 67 (arbitration) and in determining any difference under this Schedule the arbitrator may, if the arbitrator thinks fit, require the Agency to execute any temporary or other works so as to avoid, so far as may be reasonably possible, interference with the use of any apparatus.

SCHEDULE 8 — PROTECTION OF PORT OF BOSTON

1

The following provisions of this Schedule have effect unless otherwise agreed in writing between the Agency and the Harbour Authority.

2

In this Schedule—

• “accumulation” means any accumulation of silt or other material which constitutes an impediment to navigation;

• “construction” includes execution and placing, maintenance, extension, enlargement, alteration, replacement, relaying, and removal, and “construct” and “constructed” are to be construed accordingly;

• “erosion” means any erosion of the bed or banks of the river or any jetty or other structure of whatever nature owned or occupied by the Harbour Authority;

• “harbour property” means any land or works owned or administered by the Harbour Authority as part of its harbour undertaking at the Port of Boston;

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

• “specified work” means so much of any permanent or temporary work authorised by this Order (which includes, for the avoidance of doubt, any removal of gravel or other material, any dredging or similar work and any geotechnical investigations that may be undertaken) as is on, in, under or over— the surface of land below the level of mean high water springs forming part of the river; or any other harbour property.

3

• (1) The Agency must not exercise the powers conferred by this Order to acquire or take temporary possession of or acquire new rights over any land held by the Harbour Authority as part of its statutory undertaking except with the consent of the Harbour Authority.

• (2) The consent of the Harbour Authority under this paragraph must not be unreasonably withheld but may be given subject to such reasonable requirements as the Harbour Authority may make for the purpose of performing its statutory functions.

4

• (1) Before beginning any operations for the construction of any specified work (but this requirement does not apply to minor works of maintenance or repair), the Agency must submit to the Harbour Authority plans of the work and such further particulars available to it as the Harbour Authority may within 14 days of the submission of the plans reasonably require.

• (2) Any specified work must not be constructed except in accordance with such plans as may be approved in writing by the Harbour Authority or determined to be in accordance with article 67 (arbitration) of this Order.

• (3) Any approval of the Harbour Authority required under this paragraph must not be unreasonably withheld and—

• (a) shall be deemed to be given if it is neither given or refused (with an indication of the grounds for refusal) within 28 days of the submission of the plans or where further particulars are submitted under sub-paragraph (1), within 28 days of the submission of those particulars; and

• (b) may be given subject to such reasonable requirements as the Harbour Authority may make for the protection of—

• (i) navigation in, or the flow or regime of, the river; or

• (ii) the use of its land other than such parts as are required for the specified works for the purposes of performing its statutory functions.

5

The Agency must give to the Harbour Authority not less than 14 days’ written notice of its intention to commence the construction of a specified work (but this requirement does not apply to minor works of maintenance or repair) and, not more than 14 days after completion of such construction, must give to the Harbour Authority written notice of such completion.

6

The Agency must carry out all operations for the construction of any specified works with all reasonable dispatch to the reasonable satisfaction of the Harbour Authority so that navigation in, or the flow or regime of, the river and the exercise of the Harbour Authority’s statutory functions do not suffer more interference than is reasonably practicable and the Harbour Authority shall be entitled by its officer at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.

7

After the purpose of any temporary works has been accomplished the Agency must with all reasonable dispatch, or after a reasonable period of notice in writing from the Harbour Authority requiring the Agency so to do, remove any such temporary works or any materials relating thereto which may have been placed below the level of high water by or on behalf of the Agency; and, on failing to so do within a reasonable period after receiving such notice, the Harbour Authority may remove the same and may recover the reasonable costs of so doing from the Agency.

8

• (1) If—

• (a) during the construction of a tidal work or within 10 years after the completion of that work and wholly or partly in consequence of its construction; or

• (b) during the exercise of the powers conferred by article 6 (power to dredge etc.) of this Order or within 10 years after and wholly or partly in consequence of the exercise of those powers,

there is caused or created an accumulation or erosion which results or is likely to result in interference with navigation or damage to harbour property, the Agency must, if so requested by the Harbour Authority acting reasonably and having regard in particular to its and the Agency’s statutory functions, remedy such accumulation or erosion to the extent attributable to such construction or exercise of powers in the manner specified in sub-paragraph (3) and, if it refuses or fails to do so, the Harbour Authority may itself cause the work to be done and may recover the reasonable cost of doing so from the Agency.

• (2) If any such accumulation or erosion in consequence of such construction or exercise of the powers conferred under article 6 (power to dredge etc.) arises within the said period of 10 years and is remedied in accordance with sub-paragraph (1), any recurrence of such accumulation or erosion must, from time to time, if reasonably so required to do by the Harbour Authority after notice in writing to it from the Agency and having regard in particular to its and the Agency’s statutory functions, be so remedied by the Agency during the said period of 10 years and at any time thereafter, save that the Agency’s obligation under this paragraph shall cease if, following the remedying of any accumulation or erosion, a period of 10 years elapses without any further accumulation or erosion being caused or created in consequence of such construction or exercise.

• (3) For the purposes of sub-paragraph (1) and (2) above—

• (a) in the case of an accumulation, the remedy must be its removal; and

• (b) in the case of erosion, the remedy must be the carrying out of such reconstruction works and other protective works or measures as may be necessary.

• (4) In the event that any surveys, inspection, tests or sampling establish that such accumulation or erosion may have been caused in any event by factors other than the construction of a tidal work or the exercise of the powers conferred by article 6 (power to dredge etc), the Agency is liable to remedy such accumulation or erosion only to the extent that the same is attributable to such construction or exercise.

• (5) For the purposes of sub-paragraph (1) the date of completion of a work is the date on which it is brought into use.

9

The Agency must pay to the Harbour Authority the reasonable costs of such alterations to the marking and lighting of the navigational channel of the river as may be necessary during or within five years of the completion of and in consequence of the construction of a tidal work and afford to the Harbour Authority such facilities as it may reasonably require for the placing and maintenance on any tidal work of signals, tide-boards, tide-gauges or other apparatus for the safety or benefit of navigation.

10

Without affecting the other provisions of this Schedule, the Agency must be responsible for, and make good to the Harbour Authority, all costs which may reasonably be incurred by or occasioned to the Harbour Authority by reason of or arising from or in connection with—

• (a) the carrying out of surveys, inspections, tests and sampling within and of the river (including the bed and banks of the river) where the Harbour Authority has reasonable cause to believe that the construction of any of the tidal works or the exercise of the powers conferred by article 6 (power to dredge etc.) of this Order is causing or has caused any such accumulation or erosion;

• (b) the surveillance, co-ordination and regulation of traffic within the Port of Boston which becomes reasonably necessary by reason of the exercise or the prospective exercise by the Agency of its powers to close the river or any part of the river to navigation under article 17 (temporary closing of the river in connection with works) of this Order.

11

• (1) The Agency must indemnify the Harbour Authority from all claims, demands, proceedings or damages, which may be made or given against, or recovered from the Harbour Authority and any costs or expense reasonably incurred by the Harbour Authority by reason of any damage to the bed or banks of the river or other harbour property which is caused by the construction, maintenance or failure of any specified work or any act or omission of the Agency, its contractors, agents or employees whilst engaged upon the work.

• (2) The Harbour Authority must give to the Agency reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand must be made without the consent of the Agency, which, if it notifies the Harbour Authority that it desires to do so, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

12

Nothing in paragraph 11 imposes any liability on the Agency with respect to any damage to the extent that it is attributable to any prior defect, want of maintenance or want of repair to the beds or banks of the river or other harbour property or to the act, neglect or default of the Harbour Authority, its officers, servants, contractors or agents but the fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the Harbour Authority, or to its satisfaction, or in accordance with a determination under article 67 (arbitration) of the Order, does not (in the absence of negligence on the part of the Harbour Authority, its officers, servants, contractors or agents) relieve the Agency from any liability under the provisions of this Schedule.

13

Save to the extent expressly provided for nothing in this Order affects prejudicially any statutory or other rights, powers or privileges vested in, or enjoyed by, the Harbour Authority at the commencement of this Order.

SCHEDULE 9 — AMENDMENT OF LOCAL LEGISLATION

PART 1 — LOCAL ENACTMENTS

Year	Chapter	Title	Section
1812	c. 105	Boston Port and Harbour Act	1 (works to be done for the improvement of the Harbour, &c.) 38 (power to remove goods lying on quays beyond forty-eight hours) 46 (penalty on throwing ballast or rubbish into the harbour) 48 (penalty on laying gravel, &c. nearer the front of any quays than three feet) 52 (persons destroying works, to be transported for seven years)
1812	c. 108	Witham Navigation and Drainage Act	93 (regulation as to mooring vessels and removing obstructions) 96 (penalty on persons misusing the locks , or doing other damage to the navigation) 97 (penalty on destroying the works) 98 (punishment of persons damaging fences) 99 (lords of manors and landowners may make wharfs) 100 (but if not done, the company may make wharfs, &c.)
1880	c. cliii	River Witham Outfall Improvement Act	10 (maintenance of works) 23 (power to remove obstructions)
1881	c. cxii	Boston Dock Act	5 (power to make dock and railway, &c.) 6 (power to make subsidiary works)
1925	c. lxxi	Land Drainage (Black Sluice) Provisional Order Confirmation Act	9 (penalties for obstructing or injuring drains or banks)

PART 2 — BYELAWS

(1) Title	(2) Byelaw to be disapplied
Boston Dock Byelaws 1947	Byelaw 17 (opening of gates and sluices) Byelaw 26 (deposit of refuse and rubbish) Byelaw 27 (master to deliver account of ballast and no ballast to be discharged without permission) Byelaw 28 (timber and goods) Byelaw 29 (obstruction, wilful damage, hindrance of corporation’s officers, etc.) Byelaw 40 (persons not to remain on gates or bridges whilst being swung) Byelaw 44 (vehicles, goods on quays, etc.) Byelaw 45 (vehicles and horses)
Black Sluice Internal Drainage Board Complete Land Drainage Byelaws 1988	Byelaw 3 (Control of introduction of water and increase in flow or volume of water) Byelaw 4 (Control of sluices, etc.) Byelaw 6 (Diversion or stopping up of watercourses) Byelaw 7 (Detrimental substances not to be put into watercourses) Byelaw 10 (No obstructions within 9 metres of the edge of watercourse) Byelaw 14 (Vehicles not to be driven on banks) Byelaw 15 (Banks not to be used for storage) Byelaw 16 (Not to dredge or raise gravel, sand, etc.) Byelaw 17 (Fences, excavations, pipes, etc.) Byelaw 18 (Tidal outfalls) Byelaw 19 (Interference with sluices) Byelaw 20 (Mooring of vessels) Byelaw 21 (Unattended vessels) Byelaw 24 (Damage to property of the Board)
Witham Fourth District Internal Drainage Board Byelaws 1989	Byelaw 3 (Control of introduction of water and increase in flow or volume of water) Byelaw 4 (Control of sluices, etc.) Byelaw 6 (Diversion or stopping up of watercourses) Byelaw 10 (No obstructions within 9 metres of the edge of watercourse) Byelaw 14 (Vehicles not to be driven on banks) Byelaw 15 (Banks not to be used for storage) Byelaw 16 (Not to dredge or raise gravel, sand, etc.) Byelaw 17 (Fences, excavations, pipes, etc.) Byelaw 18 (Tidal outfalls) Byelaw 19 (Interference with sluices) Byelaw 20 (Mooring of vessels) Byelaw 21 (Unattended vessels) Byelaw 24 (Damage to property of the Board)

Signed

David Cooper — A Senior Civil Servant, for and on behalf of the — Secretary of State for Environment, Food and Rural Affairs — 12th December 2017

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order authorises the Environment Agency (“the Agency”) to construct and operate a new tidal barrier with a moveable gate across the river Witham (also known in this location as the Haven) in Boston, Lincolnshire, together with a new building to enable operation of the barrier, new flood defence walls on both banks of the Haven, a replacement gate across the entrance to the existing Wet Dock and to execute ancillary works, including dredging of the river.

The purpose of this Order is to improve the current standard of protection from tidal flooding within Boston, Lincolnshire. The Order confers the necessary powers on the Agency to acquire, compulsorily or by agreement, land and rights in land and to use land for the purposes of the works and confers other powers in connection with the construction, operation and maintenance of the works.

A copy of the Order plans and the book of reference referred to in this Order and certified in accordance with article 66 of this Order (Certification of plans, etc.) may be inspected free of charge during normal working hours at the offices of the Environment Agency at Kingfisher House, Goldhay Way, Orton Goldhay, Peterborough, Cambridgeshire PE2 5ZR.

Footnotes

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

[^f00002]: 1992 c. 42. Section 5 was amended by S.I. 2012/1659.

[^f00003]: 1964 c. 40.

[^f00004]: S.I. 1992/3230 as amended by S.I. 1997/2906.

[^f00005]: 1961 c. 33.

[^f00006]: 1965 c. 56.

[^f00007]: 1980 c. 66.

[^f00008]: 1984 c. 27.

[^f00009]: 1990 c. 8.

[^f00010]: 1991 c. 22.

[^f00011]: 1964 c. 40.

[^f00012]: 1991 c. 59.

[^f00013]: 2000 c. 22.

[^f00014]: 1981 c. 67. The definition of “owner” was amended by paragraph 9 of Schedule 15 to the Planning and Compensation Act 1992 (c.34). There are other amendments to section 7 which are not relevant to the Order.

[^f00015]: S.I. 1989/2036.

[^f00016]: 1991 c. 56.

[^f00017]: 1968 c. 59.

[^f00018]: Section 64 was amended by Schedule 17 to the Local Government Act 1965 (c. 51) and Schedule 9 to the 1991 Act.

[^f00019]: Section 184 was amended by section 4 of, and Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11) and Schedule 8 to the New Roads and Street Works Act 1991 (c. 22) and sections 35 and 46 of the Criminal Justice Act 1982 (c.48).

[^f00020]: Section 56 was amended by section 43 of, and Schedule 1 to, the Traffic Management Act 2004 (c.18).

[^f00021]: Section 56A was inserted by section 44 of the Traffic Management Act 2004 (c. 18).

[^f00022]: Section 58 was amended by section 51 of, and Schedule 1 to, the Traffic Management Act 2004 (c. 18).

[^f00023]: Section 58A was inserted by section 52 of the Traffic Management Act 2004 (c. 18).

[^f00024]: Schedule 3A was inserted by Schedule 4 to the Traffic Management Act 2004 (c. 18).

[^f00025]: Sections 54, 55, 57, 60, 68 and 69 were amended by sections 40(1) and (2) of, and Schedule 1 to, the Traffic Management Act 2004 (c. 18).

[^f00026]: As also amended by section 49(1) of the Traffic Management Act 2004 (c. 18).

[^f00027]: As also amended by section 49(2) and 51(9) of the Traffic Management Act 2004 (c. 18).

[^f00028]: As also amended by section 52(3) of the Traffic Management Act 2004 (c. 18).

[^f00029]: As amended by section 42 of the Traffic Management Act 2004 (c. 18).

[^f00030]: 2004 c. 18.

[^f00031]: 2006 c. 26.

[^f00032]: 1995 c. 21.

[^f00033]: 1975 c. 23. Section A1 was inserted by section 33 of the Flood and Water Management Act 2010 (c. 29).

[^f00034]: 1989 c. 29.

[^f00035]: 1991 c. 56.

[^f00036]: S.I. 2016/1154.

[^f00037]: 1991 c. 57.

[^f00038]: Section 24(1) was amended by S.I. 1996/593.

[^f00039]: Section 25 was amended by section 2 of the Water Act 2003 and S.I. 2013/755.

[^f00040]: Section 48A was inserted by section 24(1) of the Water Act 2003 (c. 37).

[^f00041]: Section 90(2A) was inserted by section 16(1) of the Transport and Works Act 1992 (c. 42).

[^f00042]: 1981 c. 67.

[^f00043]: Section 4 was substituted by section 182(1) of the Housing and Planning Act 2016 (c. 22).

[^f00044]: Section 4A(1) was inserted by section 202(1) of the Housing and Planning Act 2016 (c. 22).

[^f00045]: Section 22 was amended by Schedule 8 to the Tribunals, Courts and Enforcement Act 2007 (c. 15).

[^f00046]: Schedule 2A was inserted by paragraph 3 of Part 1 to Schedule 17 of the Housing and Planning Act 2016 (c. 22).

[^f00047]: 1981 c. 66.

[^f00048]: Section 5 was amended by Schedule 15 to the Housing and Planning Act 2016 (c. 22).

[^f00049]: Section 5A was inserted by section 182(2) of the Housing and Planning Act 2016 (c. 22).

[^f00050]: Section 5B(1) was inserted by section 202(2) of the Housing and Planning Act 2016 (c. 22).

[^f00051]: Section 7(1) was substituted by Schedule 18 of the Housing and Plananing Act 2016 (c. 22).

[^f00052]: 1989 c. 29.

[^f00053]: 1986 c. 44, as amended by section 76(2) of the Utilities Act 2000 (c. 27).

[^f00054]: 1991 c. 56, as amended by section 36(2) of the Water Act 2003 (c. 37)..

[^f00055]: Section 97 was amended by Schedule 22 to the Localism Act 2011 (c. 20), Schedule 8 to the Housing and Regeneration Act 2008 (c. 17) and Schedule 15 to the Government of Wales Act 1998 (c. 38).

[^f00056]: 2003 c. 21.

[^f00057]: Section 11 was amended by sections 186(2), 187(2) and 188 of, and Schedule 14 to, the Housing and Planning Act 2016 (c.22), Schedule 4 to, the Acquisition of Land Act 1981 (c. 67) and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1) and S.I. 2009/1307.

[^f00058]: Section 4 was amended by sections 186(2), 187(2) and 188 of, and Schedule 14 to, the Housing and Planning Act 2016 (c.22).

[^f00059]: Section 11 was amended by sections 186(2), 187(2) and 188 of, and Schedule 14 to the Housing and Planning Act 2016 (c.22), section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1) and S.I. 2009/1307.

[^f00060]: Section 13 was amended by sections 62(3) and 139 of, and paragraphs 27 and 28 of Schedule 13, and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

[^f00061]: Section 10 was amended by section 4 of, and paragraph 13(2) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11) and S.I. 2009/1307.