Crossrail Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Crossrail Bill

Crossrail Bill
Schedule 14 — Protective provisions
Part 4 — Protection of electronic communications code networks
209

"electronic communications code" means the electronic
communications code contained in Schedule 2 to the
Telecommunications Act 1984 (c. 12); and
"operator", "electronic communications apparatus", and ”electronic
communications code network” have the meanings given by
5
paragraph 17(1) of Schedule 17 to the Communications Act 2003
(c. 21).
2     (1)
Subject to sub-paragraph (2), paragraph 23 of the electronic communications
code shall apply for the purposes of the authorised works.
      (2)
Paragraphs 21 and 23 of the electronic communications code shall not apply
10
for the purposes of the authorised works,
(a)
insofar as such works are regulated by the New Roads and Street
Works Act 1991 (c. 22) or any regulation made under that Act;
(b)
where the nominated undertaker exercises a right under subsection
(4)(b) of section 272 of the Town and Country Planning Act 1990 (c. 8)
15
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 4.
3
The temporary stopping up or diversion of any highway under paragraph 5
20
of Schedule 3 shall 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.
4     (1)
Where a highway is stopped up under paragraph 1 or 2 of Schedule 3, any
operator of an electronic communications code network whose electronic
25
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
nothing in this sub-paragraph shall affect any right of the nominated
undertaker or the operator to require removal of that apparatus under this
30
Part or the power of the nominated undertaker to alter apparatus in
accordance with paragraph 23 of the electronic communications code.
      (2)
The nominated undertaker shall give not less than 28 days' notice in writing
of its intention to stop up any highway under paragraph 1 or 2 of Schedule
3 to any operator of an electronic communications code network whose
35
apparatus is under, over, in, on, along or across the highway.
      (3)
Where a notice under sub-paragraph (2) 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, shall, as soon as reasonably
40
practicable 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
45
and place it in such other position as aforesaid.
      (4)
Subject to the following provisions of this paragraph the nominated
undertaker shall pay to any operator of an electronic communications code

Crossrail Bill
Schedule 14 — Protective provisions
Part 4 — Protection of electronic communications code networks
210

network an amount equal to the cost reasonably incurred by the operator in
or in connection with—
(a)
the 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
5
execution of relocation works.
      (5)
If in the course of the execution of relocation works under sub-paragraph
(3)—
(a)
apparatus of better type, greater capacity or greater dimensions is
placed in substitution for existing apparatus of worse type, smaller
10
capacity or smaller dimensions, except where this has been solely
due to using the nearest currently available type, capacity or
dimension, or
(b)
apparatus (whether existing apparatus or apparatus substituted for
existing apparatus) is placed at a depth greater than the depth at
15
which existing apparatus was,

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 consequence of the construction of the authorised works
20
in order to ensure the continued efficient operation of the electronic
communications code network of the operator then, if it involves cost in the
execution of the relocation works 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
25
apart from this paragraph would be payable to the operator by virtue of sub-
paragraph (4) shall be reduced by the amount of that excess.
      (6)
For the purposes of sub-paragraph (5)—
(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
30
greater 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
35
a manhole (in either case of such type, capacity and dimensions as
shall reasonably be appropriate) shall be treated as if it also had been
agreed or had been so determined.
      (7)
The amount which apart from this sub-paragraph would be payable to an
operator in respect of works by virtue of sub-paragraph (4) (and having
40
regard, where relevant, to sub-paragraph (5)) shall, if the works include the
placing of apparatus provided in substitution for apparatus placed more
than 7½ 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.
45
      (8)
Sub-paragraphs (4) to (7) shall 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 (c. 22) (including that
provision as applied by paragraph 8 of Schedule 3 to this Act), but instead—
(a)
the allowable costs of any relocation works shall be determined in
50
accordance with section 85 of that Act (sharing of costs of necessary

Crossrail Bill
Schedule 14 — Protective provisions
Part 4 — Protection of electronic communications code networks
211

measures) and any regulations for the time being having effect under
that section, and
(b)
the allowable costs shall be borne by the nominated undertaker and
the operator in such proportions as may be prescribed by any such
regulations.
5
5     (1)
Subject to sub-paragraphs (2) to (4), if by reason of the construction of the
authorised works or any subsidence resulting from any of those works, any
damage is caused to any electronic communications 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
10
operator of an electronic communications code network, or there is any
interruption in the supply of the service provided by the operator, the
nominated undertaker shall bear and pay the cost reasonably incurred by
the operator in making good such damage or restoring the supply and
shall—
15
(a)
make reasonable compensation to the telecommunications operator
for loss sustained by it, and
(b)
indemnify 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.
20
      (2)
Sub-paragraph (1) shall not apply to any apparatus in respect 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
(c. 22).
      (3)
Nothing in sub-paragraph (1) shall impose any liability on the nominated
25
undertaker with respect to any damage or interruption to the extent that it is
attributable to the act, neglect or default of the operator, its officers, servants,
contractors or agents.
      (4)
The operator shall give the nominated undertaker reasonable notice of any
such claim or demand and no settlement or compromise of any such claim
30
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 the claim
or demand.
6     (1)
Any dispute arising between the nominated undertaker and an operator
35
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 Secretary of
State.
40
      (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
appointment.

Crossrail Bill
Schedule 14 — Protective provisions
Part 5 — Protection of British Waterways Board
212

Part 5
Protection of British Waterways Board
1     (1)
The following provisions of this Part shall, unless otherwise agreed in
writing between the nominated undertaker, or the Secretary of State as the
case may be, and the Board, have effect.
5
      (2)
In this Part—
"the Board" means the British Waterways Board;
"the canal" means any canal or inland navigation owned or managed by
the Board, and includes any works connected therewith for the
maintenance of which the Board is responsible and any lands held or
10
used by the Board for the purposes of the canal;
"construction" includes execution, placing, altering, replacing and
relaying and includes removal;
"plans" includes sections, drawings, specifications and method
statements;
15
"specified work" means so much of any permanent or temporary work
authorised by this Act as is in, across, under, or within 15 metres of,
or may in any way affect, the canal.
2
The Secretary of State shall not under the powers of section 6 acquire
compulsorily any land of the Board or any easement or other right over such
20
land other than such land, or easements or other rights thereover, as is
reasonably necessary for, or in connection with, the construction,
maintenance or operation of works authorised by this Act.
3     (1)
Before beginning to construct any specified work, the nominated undertaker
shall submit to the Board plans of the work and such further particulars
25
available to it as the Board may within 14 days of the submission of the plans
reasonably require.
      (2)
Any specified work shall not be constructed except in accordance with such
plans as may be approved in writing by the Board or determined under
paragraph 10.
30
      (3)
Any approval of the Board required under this paragraph shall not be
unreasonably withheld and—
(a)
shall 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; and
35
(b)
may be given subject to such reasonable requirements as the Board
may make for the purpose of ensuring the safety or stability of the
canal, including requirements as to the construction of protective
works.
4     (1)
Any specified work, and any protective works required by the Board under
40
paragraph 3(3)(b), shall be constructed with all reasonable despatch to the
reasonable satisfaction of the Board, 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 the passage of vessels
using the canal, and the Board shall be entitled by its officer at all reasonable
45
times, on giving such notice as may be reasonable in the circumstances, to
inspect the construction of such work or works.

Crossrail Bill
Schedule 14 — Protective provisions
Part 5 — Protection of British Waterways Board
213

      (2)
The nominated undertaker shall give to the Board not less than 28 days'
notice in writing of its intention to commence construction of any specified
work or any protective works and also, except in emergency (when the
nominated undertaker shall give such notice as may be reasonably
practicable), of its intention to carry out any works for the repair or
5
maintenance of any specified work insofar as such works of repair or
maintenance affect or interfere with the canal.
5     (1)
The nominated undertaker shall not deposit any polluting material on, in or
over the canal and shall not without the consent of the Board—
(a)
deposit any other materials on, in or over the canal (other than
10
materials comprised in a specified work); or
(b)
notwithstanding anything in paragraph 8 of Schedule 2 (which
authorises the discharge of water in connection with the construction
or maintenance of works authorised under this Act), discharge any
water directly or indirectly into the canal.
15
      (2)
Any consent of the Board required under this paragraph shall not be
unreasonably withheld and—
(a)
shall be deemed to have been given if it is neither given nor refused
within 28 days of the submission of the request for it; and
(b)
may be given subject to such reasonable requirements as the Board
20
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)
in the case of a discharge, concerning the reimbursement by
the nominated undertaker of expenses incurred by the Board
25
in disposing of the water so discharged, being expenses
which the Board would not have incurred but for the
discharge.
6
In its application to the discharge of water into the canal, paragraph 8(5) of
Schedule 2 shall have effect subject to the terms of any conditions attached
30
to the consent under paragraph 5(2) above and, where such discharge
includes a deposit to which consent has been given under paragraph 5(1)
above, to any conditions attached to that consent.
7     (1)
If as a result of the construction of any specified work any part of the towing
path beside the canal, or any public right of way giving access thereto, is
35
temporarily closed to pedestrians or cyclists and there is no way which
provides a reasonable alternative, the nominated undertaker shall, 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 5(2)
40
or (5) of Schedule 3.
8     (1)
The nominated undertaker shall indemnify the Board from all claims,
demands, proceedings or damages, which may be made or given against, or
recovered from the Board by reason of any damage to the canal which is
caused by the construction of any specified work or protective work or any
45
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.

Crossrail Bill
Schedule 14 — Protective provisions
Part 6 — Protection of Port of London Authority
214

      (2)
The Board 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 notifies the Board that it desires to do so, shall have the sole
conduct of any settlement or compromise or of any proceedings necessary to
5
resist the claim or demand.
9
Nothing in paragraph 8 shall 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 the Board, its officers, servants, contractors or
agents but the fact that any work or thing has been executed or done in
10
accordance with a plan approved or deemed to be approved by the Board,
or to its satisfaction, or in accordance with a determination under paragraph
10, shall not (in the absence of negligence on the part of the Board, its
officers, servants, contractors or agents) relieve the nominated undertaker
from any liability under the provisions of this Part.
15
10    (1)
Any dispute arising between the nominated undertaker and the Board
under this Part of this Schedule 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
20
Ministers.
      (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.
25
      (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.
Part 6
Protection of Port of London Authority
30
1     (1)
The following provisions of this Part shall, unless otherwise agreed in
writing between the nominated undertaker and the Port Authority, have
effect for the protection of the Port Authority and the users of the river.
      (2)
In this Part—
"construction" includes execution, placing, altering, replacing, relaying
35
and removal and, in its application to works which include or
comprise any operation, means the carrying out of that operation;
"operations" includes temporary works and operations authorised by
paragraph 10 of Schedule 2;
"plans" includes sections, drawings, specifications and method
40
statements;
"the Port Authority" means the Port of London Authority;
"the river" means the waters within the limits of the port of London as
described in Schedule 1 to the Port of London Act 1968 (c. xxxii);
"specified work" means so much of any permanent or temporary work
45
authorised by this Act (which includes, for the avoidance of doubt,
any removal of gravel or other material, any dredging or similar

Crossrail Bill
Schedule 14 — Protective provisions
Part 6 — Protection of Port of London Authority
215

work and any geotechnical investigations that may be undertaken)
as is on, in, under or over—
(a)
the surface of land below the level of mean high water springs
forming part of the river; or
(b)
any land owned, occupied or used by the Port Authority for
5
operational purposes.
2     (1)
Before beginning any operations for the construction of any specified work,
the nominated undertaker shall submit to the Port Authority plans of the
work and such further particulars available to it as the Port Authority may
within 14 days of the submission of the plans reasonably require.
10
      (2)
Any specified work shall not be constructed except in accordance with such
plans as may be approved in writing by the Port Authority or determined
under paragraph 10.
      (3)
Any approval of the Port Authority required under this paragraph shall not
be unreasonably withheld and—
15
(a)
shall be deemed to be 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; and
(b)
may be given subject to such reasonable requirements as the Port
Authority may make for the protection of—
20
(i)
traffic in, or the flow or regime of, the river; or
(ii)
the use of its operational land for the purposes of performing
its statutory functions.
      (4)
The requirement for approval under this paragraph does not constitute any
specified work a work subject to any of the controls in Part 5 of the Port of
25
London Act 1968 (c. xxxii).
3
The nominated undertaker shall carry out all operations for the construction
of any specified work with all reasonable despatch to the reasonable
satisfaction of the Port Authority so that river traffic and the exercise of the
Port Authority's statutory functions shall not suffer more interference than
30
is reasonably practicable and the Port Authority shall be entitled by its
officer at all reasonable times, on giving such notice as may be reasonable in
the circumstances, to inspect such operations.
4     (1)
The nominated undertaker shall not, without the consent of the Port
Authority, deposit in, or allow to fall or be washed into, the river any gravel,
35
soil or other material.
      (2)
Any consent of the Port Authority under this paragraph shall not be
unreasonably withheld and—
(a)
shall be deemed to have been given if it is neither given nor refused
within 28 days of the submission of the request for it; and
40
(b)
may be given subject to such reasonable requirements as the Port
Authority may make for the protection of navigation in, or the flow
or regime of, the river.
      (3)
In its application to the discharge of water into the river, paragraph 8(5) of
Schedule 2 shall have effect subject to the terms of any conditions attached
45
to a consent given under this paragraph.