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

(3) Sub-paragraph (4) applies where, in pursuance of the provisions of this
5Part—

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

(b) 10apparatus (whether existing apparatus or alternative apparatus) is
placed at a depth greater than the depth at which the existing
apparatus was situated.

(4) If the placing of apparatus of that type or capacity or of those dimensions, or
the placing of apparatus at that depth, as the case may be, is not agreed by
15the nominated undertaker or, in default of agreement, is not determined to
be necessary in accordance with paragraph 31, then, if it involves cost in the
construction of works under paragraph 23 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
20which apart from this sub-paragraph would be payable to the undertakers
by virtue of sub-paragraph (1) is to be reduced by the amount of that excess

(5) For the purposes of sub-paragraphs (3) and (4)—

(a) an extension of apparatus to a length greater than the length of
existing apparatus is not to be treated as a placing of apparatus of
25greater 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
30be necessary, the consequential provision of a jointing chamber or of
a manhole is to be treated as if it also had been agreed or had been so
determined.

(6) An amount which apart from this sub-paragraph would be payable to the
undertakers in respect of works by virtue of this paragraph must, if the
35works include the placing of apparatus provided in substitution for
apparatus placed more than seven and a half years earlier so as to confer on
the undertakers any financial benefit by deferment of the time for renewal of
the apparatus or of the system of which it forms part in the ordinary course,
be reduced by the amount which represents that benefit.

(7) 40In any case where work is carried out by the nominated undertaker
pursuant to paragraph 23 and, if such work had been carried out by the
undertakers, the repayment made to the undertakers under this paragraph
would fall to be reduced pursuant to sub-paragraphs (3) to (6), the
undertakers must pay to the nominated undertaker such sum as represents
45the amount of that reduction.

29 (1) This paragraph applies where, by reason of the construction of any of the
works authorised by this Act, or any subsidence resulting from any of those
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 the undertakers, or there is
any interruption in any service provided by any of the undertakers

(2) Subject to sub-paragraphs (3) and (4), the nominated undertaker must—

(a) bear and pay the cost reasonably incurred by the undertakers in
5making good such damage or restoring the supply

(b) make reasonable compensation to the undertakers for loss sustained
by them by reason of any such damage or interruption, and

(c) indemnify the undertakers against claims, demands, proceedings,
and damages which may be made or taken against, or recovered
10from the undertakers by reason of any such damage or interruption.

(3) Nothing in sub-paragraph (2) is to impose any liability on the nominated
undertaker with respect to any damage or interruption to the extent that it is
attributable to the act, neglect or default of the undertakers, their officers,
servants, contractors or agents.

(4) 15The undertakers must give the nominated undertaker 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 nominated
undertaker which, if it withholds such consent, must have the sole conduct
of any settlement or compromise or of any proceedings necessary to resist
20the claim or demand.

30 In any case where Network Rail Infrastructure Limited (“Network Rail“) is
the nominated undertaker the provisions of this Part have effect subject to
any existing agreement between Network Rail and an undertaker relating to
apparatus laid or erected on land belonging to Network Rail.

31 (1) 25Any dispute arising between the nominated undertaker and the undertakers
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 otherwise is to be determined by a person appointed by the appropriate
30Ministers.

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

(3) 35The costs and fees of the person determining the dispute and the costs of the
parties to the dispute are to be allocated between the parties as that person
may direct.

(4) In this paragraph “the appropriate Ministers” means the Secretary of State
for Transport acting jointly with either the Secretary of State for
40Environment, Food and Rural Affairs or the Secretary of State for Energy
and Climate Change.

Part 3 Electronic communications code networks

32 (1) The following provisions of this Part have effect, unless otherwise agreed in
45writing between the nominated undertaker, or the Secretary of State as the

case may be, and an operator of an electronic communications code
network.

(2) In this Part—

• “alternative apparatus” means apparatus provided in replacement of
  5electronic communications apparatus in connection with the
  construction of the authorised works;

• “the appropriate Ministers” means the Secretary of State for Transport
  and the Secretary of State for Culture Media and Sport acting jointly;

• “the authorised works” means the works authorised by this Act;

• 10“construction” includes installation (and “construct” is to be construed
  accordingly);

• “electronic communications code” means the electronic
  communications code contained in Schedule 2 to the
  Telecommunications Act 1984;

• 15“operator”, “electronic communications apparatus”, and “electronic
  communications code network” have the meanings given by
  paragraph 1(1) of Schedule 17 to the Communications Act 2003.

33 (1) Subject to sub-paragraph (2), paragraph 23 of the electronic communications
code applies for the purposes of the authorised works.

(2) 20Paragraphs 21 and 23 of the electronic communications code do not apply
for the purposes of the authorised works—

(a) insofar as such works are regulated by the New Roads and Street
Works Act 1991 or any regulation made under that Act,

(b) where the nominated undertaker exercises a right under subsection
25(4)(b) of section 272 of the Town and Country Planning Act 1990 or
under an order made under that section to remove electronic
communications apparatus, or

(c) in respect of any matter regulated by sub-paragraphs (3) to (8) of
paragraph 35.

34 30The temporary stopping up or diversion of any highway under paragraph 6
of Schedule 4 does not affect any right of an operator under paragraph 9 of
the electronic communications code in respect of any apparatus which at the
time of the stopping up or diversion is in the highway.

35 (1) Where a highway is stopped up under paragraph 2 or 3 of Schedule 4, any
35operator of an electronic communications code network whose electronic
communications apparatus is under, over, in, on, along or across that
highway may exercise the same rights of access in order to inspect, maintain,
adjust, repair or alter that apparatus as if this Act had not been passed, but
this is subject to sub-paragraph (2).

(2) 40Nothing in sub-paragraph (1) affects any right of the nominated undertaker
or the operator to require removal of that apparatus under this Part or the
power of the nominated undertaker to alter or remove apparatus in
accordance with paragraph 23 of the electronic communications code.

(3) The nominated undertaker must give not less than 28 days’ notice of its
45intention to stop up any highway under paragraph 2 or 3 of Schedule 4 to
any operator of an electronic communications code network whose
apparatus is under, over, in, on, along or across the highway.

(4) Where a notice under sub-paragraph (3) has been given, the operator, if it
reasonably considers that it is necessary for the safe and efficient operation
and maintenance of the apparatus, may, and if reasonably requested so to do
by the nominated undertaker in the notice, must, as soon as reasonably
5practicable after the service of the notice—

(a) remove the apparatus and place it or other apparatus provided in
substitution for it in such other position as the operator may
reasonably determine and have power to place it, or

(b) provide other apparatus in substitution for the existing apparatus
10and place it in such other position as described in paragraph (a).

(5) Subject to the following provisions of this paragraph the nominated
undertaker must pay to any operator of an electronic communications code
network an amount equal to the cost reasonably incurred by the operator in
or in connection with—

(a) 15the execution of relocation works required in consequence of the
stopping up of the highway, and

(b) the doing of any other work or thing rendered necessary by the
execution of relocation works.

(6) Sub-paragraph (7) applies where—

(a) 20in the course of the execution of relocation works under sub-
paragraph (4)—

(i) apparatus of better type, greater capacity or greater
dimensions is placed in substitution for existing apparatus of
worse type, smaller capacity or smaller dimensions, except
25where this has been solely due to using the nearest currently
available type, capacity or dimension, or

(ii) apparatus (whether existing apparatus or apparatus
substituted for existing apparatus) is placed at a depth
greater than the depth at which existing apparatus was, and

(b) 30the placing of apparatus of that type or capacity or of those
dimensions or the placing of apparatus at that depth, as the case may
be, is not agreed by the nominated undertaker, or, in default of
agreement, is not determined to be necessary in consequence of the
construction of the authorised works in order to ensure the
35continued efficient operation of the electronic communications code
network of the operator.

(7) If the execution of the relocation works involves cost 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
40amount which apart from this paragraph would be payable to the operator
by virtue of sub-paragraph (5) is to be reduced by the amount of that excess.

(8) For the purposes of sub-paragraphs (6) and (7)—

(a) an extension of apparatus to a length greater than the length of
existing apparatus is not to be treated as a placing of apparatus of
45greater dimensions than those of the existing apparatus except in a
case where the apparatus as so extended provides more than an
equivalent service, 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
50a manhole (in either case of such type, capacity and dimensions as is

reasonably appropriate) is to be treated as if it also had been agreed
or had been so determined.

(9) The amount which apart from this sub-paragraph would be payable to an
operator in respect of works by virtue of sub-paragraph (5) (and having
5regard, where it applies, to sub-paragraph (7)) must, if the works include the
placing of apparatus provided in substitution for apparatus placed more
than seven and a half years earlier so as to confer on the operator any
financial benefit by deferment of the time for renewal of the apparatus in the
ordinary course, be reduced by the amount which represents that benefit.

(10) 10Sub-paragraphs (5) to (9) do not apply where the authorised works
constitute major transport works or major highway works for the purpose of
Part 3 of the New Roads and Street Works Act 1991 (including that provision
as applied by paragraph 8 of Schedule 4 to this Act), but instead—

(a) the allowable costs of any relocation works are to be determined in
15accordance with section 85 of that Act (sharing of costs of necessary
measures) and any regulations for the time being having effect under
that section, and

(b) the allowable costs are to be borne by the nominated undertaker and
the operator in such proportions as may be prescribed by any such
20regulations.

36 (1) Where the nominated undertaker or the Secretary of State affords to an
operator facilities and rights for the construction, maintenance, repair,
renewal and inspection of alternative apparatus on land held or used, or
intended for use, by the nominated undertaker for the purposes of its
25undertaking under this Act or held by the Secretary of State, those facilities
and rights must be granted upon such terms and conditions as may be
agreed between the nominated undertaker or, as the case may be, the
Secretary of State, and the operator or, in default of agreement, determined
in accordance with paragraph 39.

(2) 30In determining such terms and conditions, a person making a determination
under paragraph 39 must have regard to any template provisions issued by
the appropriate Ministers and determined in accordance with sub-
paragraph (3); and must—

(a) give effect to all reasonable requirements of the nominated
35undertaker 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 nominated
undertaker or the use of the same; and

(b) 40have regard to the operator’s ability to fulfil its service obligations.

(3) For the purposes of determining the matters under sub-paragraph (2) the
appropriate Ministers must consult the operators to which paragraph 36
may apply on the form of the proposed template provisions, and any
objections to the form of those provisions which have not been resolved
45within six months after this Act comes into force must be referred to an
independent person acting as an expert appointed to make a final
determination as to the form of the template provisions.

(4) The independent person making a determination under sub-paragraph (3)
is to be appointed by the President of the Royal Institution of Chartered

Surveyors and in making that determination that person must have regard
to the matters specified in sub-paragraph (2)(a) and (b).

(5) 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
5conditions subject to which those facilities and rights are to be granted are
more or less favourable on the whole to the operator than the facilities,
rights, 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 operator in respect of the difference as is
10reasonable having regard to all the circumstances of the case.

37 (1) Sub-paragraph (2) applies where, by reason of the construction of the
authorised works or any subsidence resulting from any of those works—

(a) damage is caused to any electronic communications apparatus, other
than apparatus the repair of which is not reasonably necessary in
15view of its intended removal for the purposes of those works,

(b) damage is caused to property of the operator of an electronic
communications code network, or

(c) there is any interruption in the supply of the service provided by the
operator.

(2) 20The nominated undertaker must—

(a) bear and pay the cost reasonably incurred by the operator in making
good such damage or restoring the supply,

(b) make reasonable compensation to the operator for loss sustained by
it, and

(c) 25indemnify the operator against all claims, demands, proceedings, or
damages which may be made or taken against, or recovered from,
the operator, by reason of any such damage or interruption.

But this is subject to sub-paragraphs (3) to (5).

(3) Sub-paragraph (2) does not apply in connection with any apparatus in
30respect of which the relations between the nominated undertaker and the
operator are regulated by the provisions of Part 3 of the New Roads and
Street Works Act 1991.

(4) Nothing in sub-paragraph (2) is to impose any liability on the nominated
undertaker with respect to any damage or interruption to the extent that it is
35attributable to the act, neglect or default of the operator, its officers, servants,
contractors or agents.

(5) The operator must give the nominated undertaker reasonable notice of any
such claim or demand and no settlement or compromise of any such claim
or demand is to be made without the consent of the nominated undertaker
40which, if it withholds such consent, is to have the sole conduct of any
settlement or compromise or of any proceedings necessary to resist the claim
or demand.

(6) This paragraph applies instead of paragraph 14 of Schedule 2 in relation to
the exercise of the powers of paragraphs 2 to 6 of that Schedule.

38 45In any case where Network Rail Infrastructure Limited (“Network Rail“) is
the nominated undertaker the provisions of this Part have effect subject to
any existing agreement between Network Rail and an operator relating to
apparatus laid or erected on land belonging to Network Rail.

39 (1) Any dispute arising between the nominated undertaker and an operator
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,

5but is otherwise to be determined by a person appointed by the appropriate
Ministers.

(2) Any person appointed by the appropriate Ministers under sub-paragraph
(1) must, in determining any dispute arising under this Part, have regard to
such matters as may be specified by the appropriate Ministers on making the
10appointment.

(3) The costs and fees of the person determining the dispute and the costs of the
parties to the dispute are to be allocated between the parties as that person
may direct.

Part 4 15Canal & River Trust

40 (1) The following provisions of this Part have effect, unless otherwise agreed in
writing between the nominated undertaker, or the Secretary of State as the
case may be, and Canal & River Trust.

(2) In this Part—

• 20“the canal” means any canal or waterway owned or managed by Canal
  & River Trust, and includes any works connected therewith for the
  maintenance of which Canal & River Trust is responsible and any
  lands held or used by Canal & River Trust for the purposes of the
  canal including the towpath beside a canal or waterway;

• 25“construction” includes execution, placing, altering, replacing and
  relaying and includes removal;

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

• “specified work” means so much of any permanent or temporary work
  30authorised by this Act as is in, across, under, or within 15 metres of,
  or may in any way affect, the canal.

41 The Secretary of State must not under the powers under section 4(1) acquire
compulsorily any land of Canal & River Trust or any easement or other right
over such land other than such land, or easements or other rights, as is
35reasonably necessary for, or in connection with, the construction,
maintenance or operation of works authorised by this Act having regard
also to the statutory duties of Canal & River Trust.

42 (1) Before beginning to construct any specified work, the nominated undertaker
must submit to Canal & River Trust plans of the work and such further
40particulars available to it as Canal & River Trust 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 Canal & River Trust or determined
under paragraph 50.

(3) 45Any approval of Canal & River Trust required under this paragraph must
not be unreasonably withheld and—

(a) is to be deemed to have been given if it is neither given nor refused
(with an indication of the grounds for refusal) within 28 days of the
submission of the plans for approval or where further particulars are
submitted under paragraph 42(1), within 28 days of the submission
5of those particulars; and

(b) may be given subject to such reasonable requirements as Canal &
River Trust may make for the purpose of ensuring the safety or
stability of the canal, including requirements as to the construction
of protective works.

43 (1) 10Any specified work, and any protective works required by Canal & River
Trust under paragraph 42(3)(b), must be constructed with all reasonable
despatch to the reasonable satisfaction of Canal & River Trust, and in such
manner as to cause as little damage to the canal as may be reasonably
practicable and as little interference as may be reasonably practicable with
15the passage of vessels using the canal and use of the towpath, and Canal &
River Trust is to be entitled by its officer at all reasonable times, on giving
such notice as may be reasonable in the circumstances, to inspect the
construction of such work or works.

(2) The nominated undertaker must give to Canal & River Trust not less than 28
20days’ notice of its intention to commence construction of any specified work
or any protective works and also, except in emergency (when the nominated
undertaker is to give such notice as may be reasonably practicable), of its
intention to carry out any works for the repair or maintenance of any
specified work insofar as such works of repair or maintenance affect or
25interfere with the canal.

44 (1) The nominated undertaker must not deposit any polluting material on, in or
over the canal and must not without the consent of Canal & River Trust—

(a) deposit any other materials on, in or over the canal (other than
materials comprised in a specified work); or

(b) 30notwithstanding anything in this Act, discharge any water directly
or indirectly into the canal.

(2) Any consent of Canal & River Trust required under this paragraph is not to
be unreasonably withheld and—

(a) is to be deemed to have been given if it is neither given nor refused
35within 28 days of the submission of the request for it; and

(b) may be given subject to such reasonable requirements as Canal &
River Trust may make—

(i) in the case of a deposit, so as to ensure that the use of the
canal is not obstructed or rendered less safe, and

(ii) 40in the case of a discharge, concerning the reimbursement by
the nominated undertaker of expenses incurred by Canal &
River Trust in disposing of the water so discharged, being
expenses which Canal & River Trust would not have
incurred but for the discharge.

45 45In its application to the discharge of water into the canal, paragraph 8(5) of
Schedule 2 has effect subject to the terms of any conditions attached to the
consent under paragraph 44(2) and, where such discharge includes a deposit
to which consent has been given under paragraph 44(1), to any conditions
attached to that consent.

46 (1) If as a result of the construction of any specified work any part of the
towpath or access way beside the canal, or any public right of way giving
access to that path or way, is temporarily closed to pedestrians or cyclists
and there is no way which provides a reasonable alternative, the nominated
5undertaker must, so far as reasonably practicable and to the extent that it is
consistent with safety, provide a substitute path or paths for such time as the
closure continues.

(2) This paragraph is without prejudice to the requirements of paragraph 6(2)
or (5) of Schedule 4.

47 (1) 10If any canal work is abandoned, Canal & River Trust may by notice require
the nominated undertaker to take such reasonable steps as may be specified
in the notice to remove the work and (to such extent as Canal & River Trust
reasonably requires) to restore the site to its former condition.

(2) If any canal work is in such condition that it is, or is likely to become, a
15danger to or to interfere with navigation, Canal & River Trust may by notice
require the nominated undertaker to take such reasonable steps as may be
specified in the notice—

(a) to repair and restore the work or part of it, or

(b) if the nominated undertaker so elects, to remove the work and (to
20such extent as Canal & River Trust reasonably requires) to restore the
site to its former condition.

(3) If—

(a) a work which consists of a canal work and a non-canal work is
abandoned or falls into decay; and

(b) 25the non-canal work is in such a condition as to interfere with the right
of navigation in the relevant canal or as to interfere with the rights of
access or use of land adjacent to the relevant canal,

Canal & River Trust may include the non-canal work, or any part of it, in any
notice under this paragraph.

(4) 30If after such reasonable period as may be specified in a notice under this
paragraph the nominated undertaker has failed to begin taking steps to
comply with the requirements of the notice or after beginning has failed to
make reasonably expeditious progress towards their implementation, Canal
& River Trust may carry out the works specified in the notice and any
35expenditure reasonably incurred by it in so doing is to be recoverable from
the nominated undertaker.

(5) In this paragraph “canal work” means so much of any specified work or any
other work of which the nominated undertaker is in possession under the
powers of this Act as is in or over a canal owned or managed by Canal &
40River Trust and “non-canal work” means so much of any such work as is not
in or over a canal.

48 (1) The nominated undertaker must indemnify Canal & River Trust from all
claims, demands, proceedings or damages, which may be made or given
against, or recovered from Canal & River Trust by reason of any damage to
45the canal which is caused by the construction of any specified work or
protective work or any act or omission of the nominated undertaker, its
contractors, agents or employees whilst engaged upon the work and from
any costs reasonably incurred in making good such damage.

(2) Canal & River Trust must give to the nominated undertaker reasonable
notice of any such claim or demand and no settlement or compromise of any
such claim or demand is to be made without the consent of the nominated
undertaker which, if it notifies Canal & River Trust that it desires to do so, is
5to have the sole conduct of any settlement or compromise or of any
proceedings necessary to resist the claim or demand.

49 (1) Nothing in paragraph 48 is to impose any liability on the nominated
undertaker with respect to any damage to the extent that it is attributable to
the act, neglect or default of Canal & River Trust, its officers, servants,
10contractors or agents.

(2) 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 Canal & River Trust, or
to its satisfaction, or in accordance with a determination under paragraph
50, does not (in the absence of negligence on the part of Canal & River Trust,
15its officers, servants, contractors or agents) relieve the nominated
undertaker from any liability under the provisions of this Part.

50 (1) Any dispute arising between the nominated undertaker and Canal & River
Trust under this Part of this Schedule is to be determined by arbitration if—

(a) the parties agree, or

(b) 20the dispute relates to the amount of any sum payable under this Part,

but must otherwise be determined by a person appointed by the appropriate
Ministers.

(2) Any person appointed by the appropriate Ministers under sub-paragraph
(1) must, in determining any dispute arising under this Part, have regard to
25such matters as may be specified by the appropriate Ministers on making the
appointment.

(3) In this paragraph, the reference to the appropriate Ministers is to the
Secretary of State for Transport and the Secretary of State for Environment,
Food and Rural Affairs acting jointly.

30Part 5 Land drainage, flood defence, water resources and fisheries

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

(2) 35In this Part—

• “the Agency” means the Environment Agency;

• “a category 1 specified work” means so much of any permanent or
  temporary work or operation authorised by this Act (which includes,
  for the avoidance of doubt, any dredging and any geotechnical
  40investigations that may be undertaken) as is likely to—

  (a)

  affect any drainage work which is or includes a main river or
  the volumetric rate of flow of water in or flowing to or from
  any main river,

  (b)

  affect the flow, purity or quality of water in any main river or
  45other surface waters or ground water, or

  (c)

  affect the conservation, distribution or use of water
  resources;

High Speed Rail (London - West Midlands) BillPage 210

• “a category 2 specified work” means any of the following—

  (a)

  erecting any mill dam, weir or other like obstruction to the
  flow of any ordinary watercourse, or raising or otherwise
  altering any such obstruction,

  (b)

  5erecting a culvert in an ordinary watercourse,

  (c)

  altering a culvert in a manner that would be likely to affect
  the flow of an ordinary watercourse, or

  (d)

  altering, removing or replacing a structure or feature
  designated by a local drainage authority under Schedule 1 to
  10the Flood and Water Management Act 2010;

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

• “the drainage authority” means—

  (a)

  15in relation to a category 1 specified work, the Agency;

  (b)

  in relation to a category 2 specified work, the drainage board
  concerned within the meaning of section 23 of the Land
  Drainage Act 1991;

• “drainage work” means any watercourse and any bank, wall,
  20embankment or other structure, or any appliance, constructed or
  used for land drainage, flood defence or tidal monitoring, and
  includes land which provides or is to provide flood storage capacity
  for any watercourse;

• “fishery” means any waters containing fish and fish in, or migrating to
  25or from such waters and the spawn, spawning grounds or food of
  such fish;

• “local drainage authority” means a drainage authority other than the
  Agency;

• “a main river” and “ordinary watercourse” have the meanings given by
  30respectively the Water Resources Act 1991 and the Land Drainage
  Act 1991;

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

• “watercourse” includes all rivers, streams, ditches, drains, cuts,
  35culverts, dykes, sluices, sewers and passages through which water
  flows except a public sewer as defined by the Water Industry Act
  1991.

(3) Where any approval is required under this Part from a local drainage
authority, that authority must—

(a) 40have regard, in imposing any conditions or requirements, to any
model conditions issued by the Agency (following consultation with
the other drainage authorities and the nominated undertaker);

(b) consult the Agency in any case where it proposes to impose
conditions or requirements, or to refuse approval, and must
45specifically seek the Agency’s advice concerning any proposal to
depart from the model conditions;

(c) provide the nominated undertaker with reasons and supporting
evidence in any case where it gives a decision which does not accord
with the view or advice of the Agency given in response to
50consultation under paragraph (b).

52 (1) Before beginning to construct any specified work, the nominated undertaker
must submit to the drainage authority plans of the work and such further
particulars available to it as the drainage authority may within 28 days of the
submission of the plans reasonably require.

(2) 5Any such specified work must not be constructed except in accordance with
such plans as may be approved in writing by the drainage authority, or
determined under paragraph 61.

(3) Any approval of the drainage authority required under this paragraph—

(a) must not be unreasonably withheld,

(b) 10is to be deemed to have been given if it is neither given nor refused
within 56 days of the submission of the plans for approval or where
further particulars are submitted under sub-paragraph (1), within 56
days of the submission of those particulars, and

(c) may be given subject to such reasonable requirements or conditions
15as the drainage authority may make for the protection of any
drainage work or fishery or for the protection of water resources, or
for the prevention of flooding or pollution or in the discharge of its
statutory environmental duties.

53 The requirements which the drainage authority may make under paragraph
2052 include conditions requiring the nominated undertaker at its own
expense to construct such protective works (including any new works as
well as alterations to existing works) as are reasonably necessary—

(a) to safeguard any drainage work against damage, or

(b) to secure that its efficiency for flood defence purposes is not
25impaired and that the risk of flooding is not otherwise increased,

by reason of the specified work.

54 (1) Any specified work, and all protective works required by the drainage
authority under paragraph 52, must be constructed to the reasonable
satisfaction of the drainage authority and an officer of the drainage authority
30is entitled on giving such notice as may be reasonable in the circumstances,
to inspect and watch the construction of such works.

(2) The nominated undertaker must give to the drainage authority not less than
14 days’ notice of its intention to commence construction of any specified
work and notice of its completion not later than 7 days after the date on
35which it is brought into use.

(3) If any part of the works comprising a structure in, over or under a
watercourse is constructed otherwise than in accordance with the
requirements of this Part, the drainage authority may by notice require the
nominated undertaker at the nominated undertaker’s own expense to
40comply with the requirements of this Part or (if the nominated undertaker
so elects and the drainage authority in writing consents, such consent not to
be unreasonably withheld) to remove, alter or pull down the work and,
where removal is required, to restore the site to its former condition to such
extent and within such limits as the drainage authority reasonably requires.

(4) 45Subject to sub-paragraph (5), if within a reasonable period, being not less
than 28 days from the date when a notice under sub-paragraph (3) is served
upon the nominated undertaker, it has failed to begin taking steps to comply
with the requirements of the notice and subsequently to make reasonably
expeditious progress towards their implementation, the drainage authority

may execute the works specified in the notice and any expenditure
reasonably incurred by it in so doing is to be recoverable from the nominated
undertaker.

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

55 (1) 10Subject to sub-paragraph (5) the nominated undertaker must from the
commencement of the construction of the specified works maintain in good
repair and condition and free from obstruction any drainage work which is
situated within the limits of deviation and on land held by the nominated
undertaker for the purposes or in connection with the specified works,
15whether the drainage work is constructed under this Act or is already in
existence.

(2) If any such drainage work is not maintained to the reasonable satisfaction of
the drainage authority, the drainage authority may by notice require the
nominated undertaker to repair and restore the work, or any part of it, or (if
20the nominated undertaker so elects and the drainage authority in writing
consents, such consent not to be unreasonably withheld or delayed), to
remove the drainage work and restore the site to its former condition, to
such extent and within such limits as the drainage authority reasonably
requires.

(3) 25If, within a reasonable period being not less than 28 days beginning with the
date on which a notice in respect of any drainage work is served under sub-
paragraph (2) on the nominated undertaker, the nominated undertaker has
failed to begin taking steps to comply with the reasonable requirements of
the notice and has not subsequently made reasonably expeditious progress
30towards their implementation, the drainage authority may do what is
necessary for such compliance and may recover any expenditure reasonably
incurred by it in so doing from the nominated undertaker.

(4) In the event of any dispute as to the reasonableness of any requirement of a
notice served under sub-paragraph (2), the drainage authority must not
35except in a case of emergency exercise the powers of sub-paragraph (3) until
the dispute has been finally determined.

(5) This paragraph does not apply to—

(a) drainage works which are vested in the drainage authority, or which
the drainage authority or another person is under an obligation to
40maintain and is not prescribed by the powers of the Act from doing
so;

(b) any obstruction of a drainage work for the purpose of a work or
operation authorised by the Act and carried out in accordance with
the provisions of this Part.

56 (1) 45If by reason of the construction of any specified work or of the failure of any
such work the efficiency of any drainage work for flood defence purposes is
impaired, or that work is otherwise damaged, so as to require remedial
action, such impairment or damage must be made good by the nominated
undertaker to the reasonable satisfaction of the drainage authority and if the
50nominated undertaker fails to do so, the drainage authority may make good

the same and recover from the nominated undertaker the expense
reasonably incurred by it in doing so.

(2) In any case where immediate action by the drainage authority is reasonably
required in order to secure that the imminent flood risk is avoided or
5reduced, the drainage authority may take such steps as are reasonable for
the purpose, and may recover from the nominated undertaker the
reasonable cost of so doing provided that notice specifying those steps is
served on the nominated undertaker as soon as reasonably practicable after
the drainage authority has taken, or commenced to take, the steps specified
10in the notice.

(3) Nothing in paragraphs 54, 55 or 56 authorises the drainage authority to
execute works on or affecting an operational railway without the prior
consent in writing of the nominated undertaker, such consent not to be
unreasonably withheld.

57 (1) 15The nominated undertaker must take all such measures as may be
reasonably practicable to prevent any interruption of the free passage of fish
in any fishery during the construction of any specified work.

(2) If by reason of—

(a) the construction of any specified work, or

(b) 20the failure of any such work,

damage to a fishery is caused, or the Agency has reason to expect that such
damage may be caused, the Agency may serve notice on the nominated
undertaker requiring it to take such steps as may be reasonably practicable
to make good the damage or, as the case may be, to protect the fishery
25against such damage.

(3) If, within such time as may be reasonably practicable for that purpose after
the receipt of written notice from the Agency of any damage or expected
damage to a fishery, the nominated undertaker fails to take such steps as are
described in sub-paragraph (2), the Agency may take those steps and may
30recover from the nominated undertaker the expense reasonably incurred by
it in doing so.

(4) In any case where immediate action by the Agency is reasonably required in
order to secure that the risk of damage to a fishery is avoided or reduced, the
Agency may take such steps as are reasonable for the purpose, and may
35recover from the nominated undertaker the reasonable cost of so doing
provided that notice specifying those steps is served on the nominated
undertaker as soon as reasonably practicable after the Agency has taken, or
commenced to take, the steps specified in the notice.

58 (1) The nominated undertaker must indemnify the drainage authority from all
40claims, demands, proceedings or damages, which may be made or taken
against, or recovered from the drainage authority by reason of—

(a) any damage to any drainage work so as to impair its efficiency for
flood defence purposes,

(b) any damage to a fishery,

(c) 45any raising or lowering of the water table in land adjoining the works
authorised by this Act or adjoining any sewers, drains and
watercourses, or

(d) any flooding or increased flooding of any such lands,

which is caused by, or results from, the construction of any specified work
or any act or omission of the nominated undertaker, its contractors, agents
or employees whilst engaged upon the work.

(2) The drainage authority must give to the nominated undertaker reasonable
5notice of any such claim or demand and no settlement or compromise of any
such claim or demand is to be made without the consent of the nominated
undertaker which, if it withholds such consent, is to have the sole conduct of
any settlement or compromise or of any proceedings necessary to resist the
claim or demand.

59 10Nothing in paragraph 58 requires the nominated undertaker to indemnify
the drainage authority in respect of any claim, demand, proceedings or
damages which the drainage authority could reasonably make, take against
or recover from any other person.

60 The fact that any work or thing has been executed or done in accordance
15with a plan approved or deemed to be approved by the drainage authority,
or to its satisfaction, or in accordance with any determination under
paragraph 51, does not (in the absence of negligence on the part of the
drainage authority, its officers, contractors or agents) relieve the nominated
undertaker from any liability under the provisions of this Part.

61 20Any dispute arising between the nominated undertaker and the drainage
authority under this Part is to be determined by arbitration.