High Speed Rail (London - West Midlands) Bill (HC Bill 1)

(2) The Secretary of State must, when giving a notice under this Schedule, give
a copy to the unitary authority or, in a non-unitary area, the district council
in whose area the development is or is to be carried out.

Section 46

SCHEDULE 31 5Protective provisions

Part 1 Highways and traffic

1 (1) The following provisions of this Part have effect, unless otherwise agreed in
writing between the nominated undertaker and the highway authority
10concerned.

(2) In this Part—

• “plans” includes sections and specifications;

• “property of the highway authority” means any apparatus of the
  highway authority affixed to or placed under any highway.

(3) 15Part 3 of the New Roads and Street Works Act 1991 does not apply in
relation to any matter which is regulated by this Part.

2 Wherever in this Part provision is made with respect to the approval or
consent of the highway authority, that approval or consent must be in
writing and subject to such reasonable terms and conditions as the highway
20authority may require, but must not be unreasonably withheld.

3 In exercising the powers conferred by this Act in relation to any highway the
nominated undertaker must—

(a) have regard to the potential disruption of traffic which may be
caused, and

(b) 25seek to minimise such disruption so far as is reasonably practicable.

4 (1) This paragraph applies to the construction of any tunnel, subway or other
structure authorised by this Act under and within 8 metres of the surface of
any highway which comprises a carriageway.

(2) The nominated undertaker must not, without the consent of the highway
30authority, carry out works to which this paragraph applies except in
accordance with plans submitted to, and approved by, the highway
authority.

(3) If, within 28 days after such plans have been submitted, the highway
authority has not approved or disapproved them, it is deemed to have
35approved the plans as submitted.

(4) This paragraph does not apply to street works within the meaning of Part 3
of the New Roads and Street Works Act 1991.

5 In the construction of any part of the works to which paragraph 4 applies
under a highway no part of it may, except with the consent of the highway
40authority, be so constructed as to—

(a) interfere with the provision of proper means of drainage of the
surface of the highway, or

(b) be nearer than two metres to the surface of the highway.

6 (1) The provisions of this paragraph have effect in relation to, and in relation to
5the construction of, any new bridge, or any extension or alteration of an
existing bridge, which carries—

(a) any part of the works authorised by this Act over a highway, or

(b) a highway over any part of those works.

Any such new bridge, or (as the case may be) any bridge so extended or
10altered, is referred to in this paragraph as “the bridge”.

(2) Before commencing the construction of, or the carrying out of any work in
connection with, the bridge which involves interference with a highway, the
nominated undertaker must submit to the highway authority for its
approval plans, drawings and particulars (in this paragraph referred to as
15“plans”) relating to the work, and the bridge must not be constructed and the
works must not be carried out except in accordance with the plans submitted
to, and approved by, the highway authority.

(3) If, within 28 days after the plans have been submitted, the highway
authority has not approved or disapproved them, it is to be deemed to have
20approved the plans as submitted.

(4) If the bridge carries any part of the works authorised by this Act over any
highway—

(a) it must be constructed in such manner as to prevent so far as may be
reasonably practicable the dripping of water from the bridge, and

(b) 25the highway authority may, at the cost of the nominated undertaker,
provide and place such lamps and apparatus as may from time to
time be reasonably necessary for efficiently lighting any highway
under or in the vicinity of the bridge.

7 The nominated undertaker must—

(a) 30secure that so much of the works authorised by this Act as is
constructed under any highway must be so designed, constructed
and maintained as to carry the appropriate loading recommended
for highway bridges by the Secretary of State at the time of
construction of the works, and

(b) 35indemnify the highway authority against, and make good to the
highway authority, the expenses which the highway authority may
reasonably incur in the maintenance or repair of any highway, or any
tunnels, sewers, drains or apparatus in the highway, by reason of
non-compliance with the provisions of this paragraph.

8 (1) 40Any officer of the highway authority duly appointed for the purpose may at
all reasonable times, on giving to the nominated undertaker such notice as
may in the circumstances be reasonable, enter upon and inspect any part of
the works authorised by this Act which—

(a) is in, over or under any highway, or

(b) 45which may affect any highway or any property of the highway
authority,

during the carrying out of the works.

(2) The nominated undertaker must give to such officer all reasonable facilities
for such inspection and, if the officer is of the opinion that the construction

of the work is attended with danger to any highway or to any property of
the highway authority on or under any highway, the nominated undertaker
must adopt such measures and precautions as may be reasonably
practicable for the purpose of preventing any damage or injury to the
5highway.

9 (1) The nominated undertaker must not alter, disturb or in any way interfere
with any property of the highway authority on or under any highway, or the
access to that property, without the consent of the highway authority.

(2) Any alteration, diversion, replacement or reconstruction of any such
10property which may be necessary must be made by the highway authority
or the nominated undertaker as the highway authority thinks fit, and the
expense reasonably incurred by the highway authority in so doing must be
repaid to the highway authority by the nominated undertaker.

(3) If, within 28 days after a request for consent has been submitted, the
15highway authority has not given or refused such consent, it is to be deemed
to have consented to the request as submitted.

10 The nominated undertaker must not remove any soil or material from any
highway except so much as is excavated in the carrying out of the works
authorised by this Act.

11 (1) 20If the highway authority, after giving to the nominated undertaker not less
than 28 days’ notice (or, in case of emergency, such notice as is reasonably
practicable) of its intention to do so, incurs any additional expense in
consequence of the construction of the works authorised by this Act—

(a) in the signposting of traffic diversions,

(b) 25in the taking of other measures in relation to those diversions, or

(c) in the repair of any highway by reason of the diversion of traffic from
a road of a higher standard,

the nominated undertaker must repay to the highway authority the amount
of any such expense reasonably so incurred.

(2) 30Sub-paragraph (3) applies in respect of an amount which, but for that sub-
paragraph, would be payable to the highway authority by virtue of sub-
paragraph (1) in respect of the repair of any highway.

(3) If the highway fell or would have fallen due for repair as part of the
maintenance programme of the highway authority at any time within ten
35years of the repair being carried out by the nominated undertaker, so as to
confer on the highway authority financial benefit (whether by securing the
completion of overdue maintenance work for which the highway authority
is liable or by deferment of the time for such work in the ordinary course),
the amount payable to the highway authority must be reduced by the
40amount which represents that benefit.

12 The nominated undertaker must not, except with the consent of the highway
authority—

(a) deposit any soil or material, or store any plant, in or over a highway
to which the public continues to have access so as to obstruct or
45render less safe the use of the highway,

(b) deposit any soils or materials on any such highway outside a
hoarding,

(c) erect or retain on or over such a highway any scaffolding or other
structure which obstructs the highway unless the structure

comprises screening which has been approved under Schedule 16
(planning conditions),

but if within 28 days after request for it any such consent is neither given nor
refused it is to be deemed to have been given.

13 5The nominated undertaker must, if reasonably so required by the highway
authority, provide and maintain to the reasonable satisfaction of the
highway authority, during such time as the nominated undertaker may
occupy any part of a highway for the purpose of the construction of any part
of the works authorised by this Act, temporary bridges and temporary
10ramps for vehicular or pedestrian traffic over any part of the works or in
such other position as may be necessary to prevent undue interference with
the flow of traffic in the highway.

14 (1) Where any part of any highway has been broken up or disturbed by the
nominated undertaker and not permanently stopped up or diverted, the
15nominated undertaker must—

(a) make good the subsoil, foundations and surface of that part of the
highway to the reasonable satisfaction of the highway authority, and

(b) maintain the same to the reasonable satisfaction of the highway
authority for such time as may reasonably be required for the
20permanent reinstatement of the highway.

(2) The reinstatement of that part of the highway must be carried out by the
nominated undertaker to the reasonable satisfaction of the highway
authority in accordance with such requirements as to specification of
material and standards of workmanship as may be prescribed for equivalent
25reinstatement work by regulations made under section 71 of the New Roads
and Street Works Act 1991.

15 (1) This paragraph applies where damage to any highway or property of the
highway authority on or under any highway is caused by, or results from—

(a) the construction of any work authorised by this Act, or

(b) 30any act or omission of the nominated undertaker, its contractors,
agents or employees whilst engaged upon such work.

(2) In the case of damage to a highway, the nominated undertaker may make
good such damage to the reasonable satisfaction of the highway authority.

(3) The nominated undertaker must pay compensation to the highway
35authority—

(a) in a case where the nominated undertaker does not make good such
damage to a highway;

(b) in the case of damage to property of the highway authority.

16 The fact that any act or thing may have been done in accordance with plans
40approved by the highway authority must not (if it was not attributable to the
act, neglect or default of the highway authority or of any person in its
employ or its contractors or agents) exonerate the nominated undertaker
from any liability, or affect any claim for damages, under this Part or
otherwise.

17 (1) 45Any dispute arising between the nominated undertaker and the highway
authority under this Part is to be determined by arbitration if—

(a) the parties agree, or

(b) the dispute relates to the amount of any sum payable under this Part,

but must otherwise be determined by a person appointed by the Secretary
of State.

(2) Any person appointed by the Secretary of State under sub-paragraph (1)
must, in determining any dispute arising under this Part, have regard to
5such matters as may be specified by the Secretary of State on making the
appointment.

Part 2 Electricity, gas, water and sewerage undertakers

18 (1) The following provisions of this Part have effect, unless otherwise agreed in
10writing between the nominated undertaker, or the Secretary of State as the
case may be, and the undertakers concerned.

(2) In this Part—

• “alternative apparatus” means alternative apparatus adequate to
  enable the undertakers to fulfil their functions as effectively as is
  15achievable using the apparatus which the alternative apparatus is to
  replace;

• “apparatus” means—

  (a)

  in the case of electricity undertakers, electric lines or electrical
  plant (as defined in the Electricity Act 1989) belonging to, or
  20maintained by, such undertakers;

  (b)

  in the case of gas undertakers, mains, pipes or other
  apparatus belonging to, or maintained by, a gas transporter
  for the purposes of the conveyance or storage of gas;

  (c)

  in the case of water undertakers—

  (i)

  25mains, pipes or other apparatus belonging to, or
  maintained by, such undertakers for the purposes of
  water supply; and

  (ii)

  any water mains or service pipes (or part of a water
  main or service pipe) that is the subject of an
  30agreement to adopt made under section 51A of the
  Water Industry Act 1991;

  (d)

  in the case of sewerage undertakers—

  (i)

  any sewer, drain or works vested in a sewerage
  undertaker under the Water Industry Act 1991 and
  35includes 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
  work; and

  (ii)

  40any sewer which is so vested or is the subject of a
  notice of intention to adopt given under section 102(4)
  of that Act or an agreement to adopt made under
  section 104 of that Act;

  and includes any structure in which apparatus is or is to be lodged
  45or which gives or will give access to apparatus;

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

• “functions” includes powers and duties;

High Speed Rail (London - West Midlands) BillPage 195

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

• “plans” includes sections and method statements;

• “removed” and “removal” in a context referring to the removal of
  5apparatus includes the disconnection and abandonment of
  apparatus where the retention of decommissioned apparatus would
  not affect the construction and use of the works authorised by this
  Act;

• “service obligations” means any service obligation imposed on the
  10undertakers by or under the enactments authorising them to carry on
  their respective undertakings;

• “undertakers” means any of the following, namely, a licence holder
  within the meaning of Part 1 of the Electricity Act 1989, a gas
  transporter within the meaning of Part 1 of the Gas Act 1986, a water
  15undertaker within the meaning of the Water Industry Act 1991, a
  sewerage undertaker within Part 1 of that Act and any local
  authority which is a relevant authority for the purposes of section 97
  of that Act; and, in relation to any apparatus, means the undertaker
  to whom it belongs or by whom it is maintained.

(3) 20Except in paragraphs 26(3) and 27, the provisions of this Part are not to apply
to any apparatus in respect of which the relations between the nominated
undertaker and the undertakers are regulated by the provisions of Part 3 of
the New Roads and Street Works Act 1991.

(4) The exercise of the powers under paragraphs 2 to 6 of Schedule 2 in relation
25to apparatus to which this Part applies is subject to paragraph 25 of this Part,
and paragraphs 28 and 29 of this Part apply instead of paragraph 14 of
Schedule 2 in relation to the exercise of those powers.

19 (1) The following provisions of this paragraph have effect in any case where the
Secretary of State or the nominated undertaker, in exercise of the powers of
30this Act, acquires any interest in or temporarily occupies any land in which
apparatus is placed.

(2) Unless a certificate is issued by the appropriate Ministers under sub-
paragraph (3) the apparatus must not be removed under this Part, and any
right of the undertakers to maintain, repair, renew, adjust, alter or inspect
35the apparatus in that land is not to be extinguished until any necessary
alternative apparatus has been constructed and is in operation to the
reasonable satisfaction of the undertakers.

(3) Where the appropriate Ministers certify in relation to any apparatus that—

(a) failure to remove the apparatus would cause undue delay to the
40construction of the scheduled works, and

(b) the removal of the apparatus before the provision of alternative
apparatus in accordance with this paragraph would not
substantially prejudice the ability of the undertakers to meet any
relevant service obligations,

45that apparatus may be removed (or required by the nominated undertaker
to be removed) under this Part before any necessary alternative apparatus
has been constructed or is in operation to the reasonable satisfaction of the
undertakers.

(4) In this paragraph “appropriate Ministers” means the Secretary of State for
50Transport acting jointly with either the Secretary of State for Environment,

Food and Rural Affairs or the Secretary of State for Energy and Climate
Change.

20 (1) This paragraph applies where—

(a) the nominated undertaker for the purpose of constructing any work
5authorised by this Act in, on or under any land, requires the removal
of any apparatus placed in that land, and gives the undertakers not
less than 28 days’ written notice of that requirement, together with a
plan of the proposed work, and of the proposed position of the
alternative apparatus to be provided or constructed, or

(b) 10in consequence of the exercise of any of the powers of this Act, the
undertakers reasonably require to remove any apparatus.

(2) Where it is reasonably practicable to do so, the nominated undertaker or the
Secretary of State must afford the undertakers the requisite facilities and
rights for the construction of any necessary alternative apparatus in other
15land which is available for the purpose and which is held or used, or
intended for use, by the nominated undertaker for the purposes of its
undertaking under this Act or held by the Secretary of State, or in which
either of them has sufficient rights or interests and subsequently for the
maintenance, repair, renewal and inspection of such apparatus.

(3) 20Sub-paragraph (4) applies where facilities and rights required for the
construction of apparatus under sub-paragraph (2) are to be afforded
elsewhere than in such other land and neither the nominated undertaker nor
the Secretary of State is able to afford such facilities and rights.

(4) The undertakers must, on receipt of a written notice from the nominated
25undertaker that this sub-paragraph applies, as soon as reasonably possible
use their best endeavours to obtain the necessary facilities and rights; and
neither the nominated undertaker nor the Secretary of State is obliged to
provide such facilities and rights in the other land.

21 (1) Any alternative apparatus to be constructed by the undertakers in
30pursuance of paragraph 20 in land held or used, or intended for use, by the
nominated undertaker for the purposes of its undertaking under this Act or
held by the Secretary of State, or in which the undertakers have obtained the
necessary facilities and rights, must be constructed in such manner, and in
such line or situation and in accordance with such programme, as is—

(a) 35agreed between the undertakers and the nominated undertaker with
a view to securing, among other things, the efficient implementation
of the necessary work, the avoidance of unnecessary delay and the
continued fulfilment by the undertakers of their service obligations
to a standard no less than that achieved prior to the removal of the
40apparatus which the alternative apparatus replaces, or

(b) in default of agreement, determined in accordance with paragraph
31.

(2) If the undertakers fail to comply with an agreement made under sub-
paragraph (1), or with a determination under paragraph 31, they must
45compensate the nominated undertaker in respect of any loss or damage
directly resulting from the failure, other than loss or damage arising from
matters outside the reasonable control of the undertakers or loss of, or
arising from delayed receipt of, operating revenue due to delayed opening
of Phase One of High Speed 2.

22 (1) 50This paragraph applies where—

(a) the manner of construction and the line and situation of any
necessary alternative apparatus have been agreed or determined as
provided under paragraph 21, and

(b) any such facilities and rights as are referred to in paragraph 20 have
5been granted to or obtained by the undertakers, or an undertaking
has been given that such facilities or rights will be granted.

(2) The undertakers must proceed with all reasonable despatch to—

(a) construct and bring into operation the alternative apparatus, and

(b) remove any apparatus required by the nominated undertaker to be
10removed under the provisions of this Part.

(3) If the undertakers fail to comply with sub-paragraph (2)(b), the nominated
undertaker may remove the apparatus.

(4) Following the removal of apparatus under the provisions of this Part, or its
abandonment, any rights of the undertakers relating to that apparatus in or
15over the land in which it was or is situated are extinguished and all
responsibility of the undertakers for any apparatus which is abandoned is to
cease.

23 (1) This paragraph applies where the nominated undertaker gives notice to the
undertakers that it desires to carry out any part of so much of the work
20necessary in connection with the construction of the alternative apparatus,
or the removal of the apparatus required to be removed, as is or will be
situated in any lands—

(a) held or used, or intended for use, by the nominated undertaker for
the purposes of its undertaking under this Act, or

(b) 25held by the Secretary of State.

(2) Such work, instead of being carried out by the undertakers, must be carried
out by the nominated undertaker—

(a) in accordance with plans and specifications and in a position agreed
between the undertakers and the nominated undertaker, or, in
30default of agreement, determined in accordance with paragraph 31,
and

(b) with all reasonable despatch under the superintendence (if given)
and to the reasonable satisfaction of the undertakers.

(3) Nothing in this paragraph authorises the nominated undertaker to carry out
35any connection to or disconnection of any existing apparatus or to carry out
any works associated with a connection or disconnection within 600
millimetres of the point of connection or disconnection.

24 (1) This paragraph applies where, in accordance with the provisions of this Part,
the nominated undertaker or the Secretary of State affords to the
40undertakers facilities and rights for the construction, maintenance, repair,
renewal and inspection of alternative apparatus on land—

(a) held or used, or intended for use, by the nominated undertaker for
the purposes of its undertaking under this Act, or

(b) held by the Secretary of State.

(2) 45Those facilities and rights must be granted upon such terms and conditions
as may be—

(a) agreed between the nominated undertaker or, as the case may be, the
Secretary of State, and the undertakers, or

(b) in default of agreement, determined in accordance with paragraph
31.

(3) In determining such terms and conditions in respect of alternative
apparatus, a person making a determination under paragraph 31 must have
5regard to any template provisions issued by the appropriate Ministers and
determined in accordance with sub-paragraph (4); and must—

(a) give effect to all reasonable requirements of the nominated
undertaker for ensuring the safety and efficient operation of the
works authorised by this Act and for securing any subsequent
10alterations or adaptations of the alternative apparatus which may be
required to prevent interference with any proposed works of the
nominated undertaker or the use of the same, and

(b) have regard to the undertakers’ ability to fulfil their service
obligations.

(4) 15For the purposes of determining the matters under sub-paragraph (3) the
appropriate Ministers must consult the undertakers to which paragraph 24
may apply on the form of the proposed template provisions, and any
objections to the form of those provisions which have not been resolved
within six months after this Act comes into force must be referred to an
20independent person acting as an expert appointed to make a final
determination as to the form of the template provisions.

(5) The independent person making a determination under sub-paragraph (4)
is to be appointed by the President of the Royal Institution of Chartered
Surveyors and in making that determination that person must have regard
25to the matters specified in sub-paragraph (3)(a) and (b).

(6) If the facilities and rights to be afforded by the nominated undertaker or the
Secretary of State in respect of any alternative apparatus, and the terms and
conditions subject to which those facilities and rights are to be granted, are
more or less favourable on the whole to the undertakers than the facilities,
30rights, terms and conditions applying to the apparatus to be removed,
compensation must be paid to or by the nominated undertaker or the
Secretary of State to or by the undertakers in respect of the difference as is
reasonable having regard to all the circumstances of the case.

(7) In this paragraph “the appropriate Ministers” means the Secretary of State
35for Transport acting jointly with the Secretary of State for Environment,
Food and Rural Affairs and the Secretary of State for Energy and Climate
Change.

25 (1) Not less than 28 days before commencing to construct any work authorised
by this Act which is near to, or will or may affect, any apparatus the removal
40of which has not been required by the nominated undertaker under
paragraph 20, the nominated undertaker must submit to the undertakers a
plan and description of the work and of any protective measures which the
nominated undertaker proposes to take in respect of that apparatus,
together with a specification of such measures where appropriate.

(2) 45The work must be constructed only in accordance with the plan and
description submitted under sub-paragraph (1) and in accordance with such
reasonable requirements as may be made by the undertakers for the
alteration or otherwise for the protection of the apparatus or for securing
access to the apparatus, and the undertakers are to be entitled by their officer
50to watch and inspect the construction of the work.

(3) If the undertakers within 14 days after the submission to them of any such
plan and description, in consequence of the works proposed by the
nominated undertaker, reasonably require the removal of any apparatus
and give written notice to the nominated undertaker of that requirement,
5this Part has effect as if the removal of such apparatus had been required by
the nominated undertaker under paragraph 20.

(4) Nothing in sub-paragraphs (1) to (3) precludes the nominated undertaker
from submitting at any time, or from time to time, but in no case less than 28
days before commencing the construction of the work, a new plan and
10description of it in lieu of the plan and description previously submitted,
and having done so the provisions of those sub-paragraphs apply to and in
respect of the new plan and description.

(5) The nominated undertaker is not required to comply with sub-paragraphs
(1) to (3) in a case of emergency but in such a case it must give notice to the
15undertakers as soon as reasonably practicable and a plan and description of
those works as soon as reasonably practicable subsequently, and must
comply with those sub-paragraphs so far as reasonably practicable in the
circumstances.

26 (1) If in consequence of the exercise of the powers of this Act the access to any
20apparatus is materially obstructed the nominated undertaker must, so far as
reasonably practicable, provide alternative means of access to such
apparatus which is no less convenient than the access enjoyed by the
undertakers prior to the obstruction.

(2) The nominated undertaker must, so far as is reasonably practicable, so
25exercise its powers under paragraphs 2 to 6 of Schedule 2 as not to obstruct
or render less convenient the access to any apparatus.

(3) Notwithstanding the temporary stopping up or diversion of any highway
under paragraph 6 of Schedule 4, the undertakers may do all such works and
things in any such highway as may be reasonably necessary to enable them
30to inspect, repair, maintain, renew, remove or use any apparatus which at
the time of the stopping up or diversion was in that highway.

27 Where, in consequence of this Act, any part of any highway in which any
apparatus is situate ceases to be part of a highway, the undertakers may
exercise the same rights of access to such apparatus as they enjoyed
35immediately before the passing of this Act, but nothing in this paragraph is
to affect any right of the nominated undertaker or of the undertakers to
require removal of that apparatus under this Part or the power of the
nominated undertaker to construct works in accordance with paragraph 25.

28 (1) Subject to the following provisions of this paragraph, the nominated
40undertaker must repay to the undertakers the reasonable expenses incurred
by the undertakers in, or in connection with—

(a) the removal and relaying or replacing, alteration or protection of any
apparatus or the construction of any new apparatus under any
provision of this Part,

(b) 45the cutting off of any apparatus from any other apparatus in
consequence of the exercise by the nominated undertaker of any
power under this Act, and

(c) any other work or thing rendered reasonably necessary in
consequence of the exercise by the nominated undertaker of any
50such power.