Crossrail Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Crossrail Bill

Crossrail Bill
Schedule 14 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers
202

shall comply with those sub-paragraphs so far as reasonably practicable in
the circumstances.
9     (1)
If in consequence of the exercise of the powers of this Act the access to any
apparatus is materially obstructed the nominated undertaker shall, so far as
reasonably practicable, provide alternative means of access to such
5
apparatus which is no less convenient than the access enjoyed by the
undertakers prior to the obstruction.
      (2)
The nominated undertaker shall, so far as is reasonably practicable, so
exercise its powers under paragraphs 5 and 6 of Schedule 3 as not to obstruct
or render less convenient the access to any apparatus.
10
      (3)
Notwithstanding the temporary stopping up or diversion of any highway
under paragraph 5 of Schedule 3, the undertakers may do all such works and
things in any such highway as may be reasonably necessary to enable them
to inspect, repair, maintain, renew, remove or use any apparatus which at
the time of the stopping up or diversion was in that highway.
15
10
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
immediately before the passing of this Act, but nothing in this paragraph
shall affect any right of the nominated undertaker or of the undertakers to
20
require removal of that apparatus under this Part or the power of the
nominated undertaker to construct works in accordance with paragraph 8.
11    (1)
Subject to the following provisions of this paragraph, the nominated
undertaker shall repay to the undertakers the reasonable expenses incurred
by the undertakers in, or in connection with—
25
(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)
the cutting off of any apparatus from any other apparatus in
consequence of the exercise by the nominated undertaker of any
30
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
such power.
      (2)
There shall be deducted from any sum payable under sub-paragraph (1) the
35
value of any apparatus removed under the provisions of this Part, that value
being calculated after removal.
      (3)
If in pursuance of the provisions of this Part—
(a)
alternative apparatus of better type, or greater capacity or of greater
dimensions is placed in substitution for existing apparatus of worse
40
type, of smaller capacity or of smaller dimensions, except where this
has been solely due to using the nearest currently available type, or
(b)
apparatus (whether existing apparatus or alternative apparatus) is
placed at a depth greater than the depth at which the existing
apparatus was situated,
45

and the placing of apparatus of that type or capacity or of those dimensions,
or the placing of apparatus at that depth, as the case may be, is not agreed
by the nominated undertaker or, in default of agreement, is not determined
to be necessary in accordance with paragraph 13, then, if it involves cost in

Crossrail Bill
Schedule 14 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers
203

the construction of works under paragraph 6 exceeding that which would
have been involved if the apparatus placed had been of the existing type,
capacity or dimensions, or at the existing depth, as the case may be, the
amount which apart from this sub-paragraph would be payable to the
undertakers by virtue of sub-paragraph (1) shall be reduced by the amount
5
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 shall not be treated as a placing of apparatus of
greater dimensions than those of the existing apparatus except in a
10
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
15
a manhole shall 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 the
undertakers in respect of works by virtue of this paragraph shall, if the
works include the placing of apparatus provided in substitution for
20
apparatus placed more than 7½ 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.
      (6)
In any case where work is carried out by the nominated undertaker
25
pursuant to paragraph 6 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 (5), the
undertakers shall pay to the nominated undertaker such sum as represents
the amount of that reduction.
30
12    (1)
Subject to sub-paragraphs (2) and (3), if 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
35
there is any interruption in any service provided, or in the supply of any
goods, by any of the undertakers, the nominated undertaker shall bear and
pay the cost reasonably incurred by the undertakers in making good such
damage or restoring the supply and shall—
(a)
make reasonable compensation to the undertakers for loss sustained
40
by them, and
(b)
indemnify the undertakers against claims, demands, proceedings,
and damages which may be made or taken against, or recovered
from the undertakers,

by reason of any such damage or interruption.
45
      (2)
Nothing in sub-paragraph (1) shall 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.

Crossrail Bill
Schedule 14 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries
204

      (3)
The undertakers shall give the nominated undertaker reasonable notice of
any such claim or demand and no settlement or compromise of any such
claim or demand shall be made without the consent of the nominated
undertaker which, if it withholds such consent, shall have the sole conduct
of any settlement or compromise or of any proceedings necessary to resist
5
the claim or demand.
13    (1)
Any dispute arising between the nominated undertaker and the undertakers
under this Part shall be determined by arbitration if—
(a)
the parties agree, or
(b)
the dispute relates to the amount of any sum payable under this Part,
10

but shall otherwise by determined by a person appointed by the Secretary of
State.
      (2)
Any person appointed by the Secretary of State under sub-paragraph (1)
shall, in determining any dispute arising under this Part, have regard to such
matters as may be specified by the Secretary of State on making the
15
appointment.
Part 3
Protection of land drainage, flood defence, water resources and fisheries
1     (1)
The following provisions of this Part shall, unless otherwise agreed in
writing between the nominated undertaker and the Agency, have effect.
20
      (2)
In this Part—
"the Agency" means the Environment Agency;
"construction" includes execution, placing, altering, replacing, relaying
and removal;
"drainage work" means any watercourse and any bank, wall,
25
embankment or other structure, or any appliance, constructed or
used for land drainage, flood defence or tidal monitoring, and
includes land which, taking account of flood defences, is expected to
provide flood storage capacity for any watercourse at intervals not
less frequent than—
30
(a)
in the case of areas providing fluvial flood storage, once in 100
years; and
(b)
in the case of areas providing tidal or coastal flood storage, once
in 200 years;
"fishery" means any waters containing fish and fish in, or migrating to
35
or from such waters and the spawn, spawning grounds or food of
such fish;
"plans" includes sections, drawings, specifications and method
statements;
"specified work" means so much of any permanent or temporary work
40
authorised by this Act (which includes, for the avoidance of doubt,
any dredging and any geotechnical investigations that may be
undertaken) as is likely to—
(a)
affect any drainage work or the volumetric rate of flow of water
in or flowing to or from any drainage work;
45
(b)
affect the flow, purity or quality of water in any watercourse or
other surface waters or ground water;

Crossrail Bill
Schedule 14 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries
205

(c)
cause obstruction to the free passage of fish or damage to any
fishery; or
(d)
affect the conservation, distribution or use of water resources;
and
"watercourse" includes all rivers, streams, ditches, drains, cuts,
5
culverts, dykes, sluices, sewers and passages through which water
flows except a public sewer.
2     (1)
Before beginning to construct any specified work, the nominated undertaker
shall submit to the Agency plans of the work and such further particulars
available to it as the Agency may within 14 days of the submission of the
10
plans reasonably require.
      (2)
Any such specified work shall not be constructed except in accordance with
such plans as may be approved in writing by the Agency, or determined
under paragraph 12.
      (3)
Any approval of the Agency required under this paragraph—
15
(a)
shall not be unreasonably withheld;
(b)
shall be deemed to have been given if it is neither given nor refused
within 28 days of the submission of the plans for approval; and
(c)
may be given subject to such reasonable requirements as the Agency
may make for the protection of any drainage work or fishery or for
20
the protection of water resources, or for the prevention of flooding or
pollution.
3
The requirements which the Agency may make under paragraph 2 include
conditions requiring the nominated undertaker at its own expense to
construct such protective works (including any new works as well as
25
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
impaired,

during the construction of the specified work.
30
4     (1)
Any specified work, and all protective works required by the Agency under
paragraph 2, shall be constructed to the reasonable satisfaction of the
Agency and the Agency shall 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 works.
35
      (2)
The nominated undertaker shall give to the Agency not less than 14 days'
notice in writing of its intention to commence construction of any specified
work and notice in writing of its completion not later than 7 days after the
date on which it is brought into use.
      (3)
If any part of the works comprising a structure in, over or under a
40
watercourse is constructed otherwise than in accordance with the
requirements of this Part, the Agency may by notice in writing require the
nominated undertaker at the nominated undertaker's own expense to
comply with the requirements of this Part or (if the nominated undertaker
so elects and the Agency in writing consents, such consent not to be
45
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 Agency reasonably requires.

Crossrail Bill
Schedule 14 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries
206

      (4)
Subject 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 thereafter to make reasonably
expeditious progress towards their implementation, the Agency may
5
execute the works specified in the notice and any expenditure reasonably
incurred by it in so doing shall be recoverable from the nominated
undertaker.
      (5)
In the event of any dispute as to whether sub-paragraph (3) is properly
applicable to any work in respect of which notice has been served under that
10
sub-paragraph, or as to the reasonableness of any requirement of such a
notice, the Agency shall not, except in an emergency, exercise the powers
conferred by sub-paragraph (4) until the dispute has been finally
determined.
5     (1)
Any work constructed under this Act for the purpose of providing a flood
15
defence shall be maintained to the reasonable satisfaction of the Agency by
the person who has control of the work.
      (2)
If any such work is not maintained to the reasonable satisfaction of the
Agency, the Agency may by notice in writing require that person to repair
and restore the work, or any part of it, or (if the person having control of the
20
work so elects and the Agency in writing consents, such consent not to be
unreasonably withheld), to remove the work and restore the site (including
any sea defences) to its former condition, to such extent and within such
limits as the Agency reasonably requires.
      (3)
If, within a reasonable period being not less than 28 days beginning with the
25
date on which a notice in respect of any work is served under sub-paragraph
(2) on the person who has control of that work, that person has failed to
begin taking steps to comply with the reasonable requirements of the notice
and has not thereafter made reasonably expeditious progress towards their
implementation, the Agency may do what is necessary for such compliance
30
and may recover any expenditure reasonably incurred by it in so doing from
that person.
      (4)
In the event of any dispute as to the reasonableness of any requirement of a
notice served under sub-paragraph (2), the Agency shall not except in a case
of immediate foreseeable need exercise the powers of sub-paragraph (3)
35
until the dispute has been finally determined.
6     (1)
If 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 shall be made good by the nominated
40
undertaker to the reasonable satisfaction of the Agency.
      (2)
If such impaired or damaged drainage work for flood defence purposes is
not made good to the reasonable satisfaction of the Agency, the Agency may
by notice in writing require the nominated undertaker to restore it to its
former standard of efficiency or where necessary to construct some other
45
work in substitution for it.
      (3)
If, within a reasonable period being not less than 28 days beginning with the
date on which a notice in respect of impaired or damaged drainage work for
flood defence purposes is served under sub-paragraph (2) on the nominated
undertaker, the nominated undertaker has failed to begin taking steps to
50

Crossrail Bill
Schedule 14 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries
207

comply with the requirements of the notice and has not thereafter made
reasonably expeditious progress towards its implementation, the Agency
may do what is necessary for such compliance and may recover any
expenditure reasonably incurred by it in so doing from the nominated
undertaker.
5
      (4)
In the event of any dispute as to the reasonableness of any requirement of a
notice served under sub-paragraph (2), the Agency shall not except in a case
of immediate foreseeable need exercise the powers conferred by sub-
paragraph (3) until the dispute has been finally determined.
7     (1)
The nominated undertaker shall take all such measures as may be
10
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)
the failure of any such work,
15

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
against such damage.
20
      (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
recover from the nominated undertaker the expense reasonably incurred by
25
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
recover from the nominated undertaker the reasonable cost of so doing
30
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.
8     (1)
The nominated undertaker shall indemnify the Agency from all claims,
demands, proceedings or damages, which may be made or taken against, or
35
recovered from the Agency 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)
any raising or lowering of the water table in land adjoining the works
40
authorised by this Act or 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.
45
      (2)
The Agency shall give to the nominated undertaker reasonable notice of any
such claim or demand and no settlement or compromise of any such claim
or demand shall be made without the consent of the nominated undertaker
which, if it withholds such consent, shall have the sole conduct of any

Crossrail Bill
Schedule 14 — Protective provisions
Part 4 — Protection of electronic communications code networks
208

settlement or compromise or of any proceedings necessary to resist the claim
or demand.
9
Nothing in paragraph 8 shall require the nominated undertaker to
indemnify the Agency in respect of any claim, demand, proceedings or
damages which the Agency could reasonably make, take against or recover
5
from any other person.
10
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 Agency, or to its
satisfaction, or in accordance with any determination under paragraph 12,
shall not (in the absence of negligence on the part of the Agency, its officers,
10
contractors or agents) relieve the nominated undertaker from any liability
under the provisions of this Part.
11
For the purposes of section 5 of the Metropolis Management (Thames River
Prevention of Floods) Amendment Act 1879 (c. cxcviii) and Chapter 2 of Part
2 of the Water Resources Act 1991 (c. 57) (abstraction and impounding of
15
water) and section 109 of that Act (as to structures in, over or under
watercourses) as applying to the construction of any specified work, any
consent or approval given or deemed to be given by the Agency under this
Part with respect to such construction shall be deemed also to constitute an
impounding licence under that Chapter or, as the case may be, a consent or
20
approval under those sections, and the nominated undertaker shall not be
obliged to serve any notice which would otherwise be required by section 30
of the said Act of 1991 (which relates to the construction of boreholes and
similar works in respect of which a licence is not required).
12    (1)
Any dispute arising between the nominated undertaker and the Agency
25
under this Part shall 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 shall otherwise by determined by a person appointed by the appropriate
Ministers.
30
      (2)
Any person appointed by the appropriate Ministers under sub-paragraph
(1) shall, 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)
In this paragraph the reference to the appropriate Ministers is to the
35
Secretary of State for Transport and the Secretary of State for Environment,
Food and Rural Affairs acting jointly.
Part 4
Protection of electronic communications code networks
1     (1)
The following provisions of this Part shall, unless otherwise agreed in
40
writing between the nominated undertaker and an operator of an electronic
communications code network, have effect.
      (2)
In this Part—
"the authorised works" means the works authorised by this Act;
"construction" includes installation and "construct" shall be construed
45
accordingly;