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Arrangement of Clauses (Contents)
These notes refer to the Crossrail Bill as introduced in the House of Commons on 22 February 2005 [Bill 62]
1. These explanatory notes relate to the Crossrail Bill as introduced in the House of Commons on 22 February 2005. They have been prepared by the Department for Transport in order to assist the reader of the Bill and help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. The main purpose of this Bill is to secure the powers necessary to build Crossrail. Crossrail will consist of new rail tunnels running west-east through central London connecting directly with existing surface rail routes to Maidenhead and Heathrow in the west and Shenfield and Abbey Wood in the east. By connecting the major London rail terminals of Paddington and Liverpool Street, Crossrail will enable interconnecting mainline train services to cross the centre of London via a number of new purpose-built stations.
4. The Bill is a Hybrid Bill because it contains provisions which have an impact on the interests of particular individuals, as well as containing provisions of a more general public nature. A Hybrid Bill is a Public Bill promoted by the Government which is treated like a Private Bill for part of its passage through Parliament, in addition to being considered in the same way as any other Public Bill.
5. This means that individuals, groups and organisations opposed to the Bill have an opportunity to oppose it or to seek its amendment before a Select Committee in either or both Houses. Those who are especially and directly affected by the Bill may "petition" against it. Those who are successful may have their arguments heard by a Select Committee in one or both Houses.
6. The House of Commons Information Office Factsheet on Hybrid Bills (L5) can be found at http://www.parliament.uk/documents/upload/l05.pdf.
[Bill 62EN] 53/4
OVERVIEW OF THE STRUCTURE
7. The Bill comprises fifty-nine clauses and fourteen Schedules. The main provisions of the Bill provide for:
8. The provisions of the Bill and the legislative framework that it seeks to establish are similar to those in the Channel Tunnel Rail Link Act 1996 ("the 1996 Act"), the last Hybrid Bill for a railway project. This is because the 1996 Act has been put to the test and by and large has worked well (although some changes from the 1996 Act framework have been made, either as a result of the particular requirements of Crossrail or following experience in implementing the 1996 Act).
9. A copy of the 1996 Act can be found at http://www.hmso.gov.uk/acts/acts1996/1996061.htm.
COMMENTARY ON CLAUSES AND SCHEDULES
Clause 1: Construction and maintenance of scheduled works
10. Clause 1(1) authorises the nominated undertaker to construct and maintain the works necessary for Crossrail. The principal works necessary - the so called "scheduled works" - are listed in Schedule 1 and are also shown on the plans and sections deposited with the Bill.
11. Clause 1(2) requires, subject to clause 1(3), the scheduled works to be constructed in the lines or situations, and on the levels, shown on the deposited plans and sections. The plans and sections therefore give an indication of where the works will be constructed. Also, if, in the case of a station, depot or shaft, the deposited sections show an upper limit, the relevant works must be constructed within that limit.
12. Clause 1(3) allows the nominated undertaker to construct or maintain a scheduled work in a different lateral position from that shown on the plans, as long as it is within the area shown for the work on the plans (the "limit of deviation" for the work). The nominated undertaker may also construct or maintain the scheduled works at a different vertical level from that shown on the sections, as long as it is no more than three metres higher than the level shown on the sections. This flexibility is customary in Bills for railway projects and reflects the fact that some movement may be necessary, for example to avoid hidden obstacles that are only discovered once construction is underway.
13. Clause 1(4) provides that where an upper limit for a station, depot or shaft is shown on the deposited sections, the power to deviate is subject to that upper limit.
Clause 2: Works: further and supplementary provisions
14. Clause 2 brings into effect Schedule 2, which contains additional provisions about the works which may be carried out, primarily to facilitate the main effort of construction of the scheduled works.
Clause 3: Highways
15. Clause 3 brings into effect Schedule 3, which contains provisions dealing with the highway works necessary for Crossrail.
Clause 4: Overhead lines
16. Clause 4(1) disapplies the normal consents regime established under the Electricity Act 1989 ("the 1989 Act") for the installation of overhead electric lines on land that is within the limits of deviation for the scheduled works or the land required for Crossrail (the "limit of land to be acquired or used"). The limits of deviation and the limit of land to be acquired or used taken together are referred to in these Explanatory Notes as "the Bill limits".
17. Clause 4(2) brings into effect Schedule 4, which establishes a replacement consents regime for such lines.
18. Clause 4(3) provides that once the consent granted under Schedule 4 is revoked or expires, the line to which it relates will revert to being subject to the 1989 Act.
19. Clause 4(4) provides that any consent granted under Schedule 4 by the Secretary of State for Transport and the Secretary of State for Trade and Industry, acting jointly, may include the grant of deemed planning permission, with or without conditions.
Clause 5: Temporary possession and use
20. Clause 5 brings into effect Schedule 5, which contains provisions dealing with the temporary possession and use of land required for Crossrail.
Clause 6: Acquisition of land within limits shown on deposited plans
21. Clause 6(1) authorises the Secretary of State, rather than the nominated undertaker, to acquire compulsorily the land required for Crossrail within the Bill limits.
22. Clause 6(2) provides that, without prejudice to the general power granted by clause 6(1), the land identified in columns (1) and (2) of the table in Part 1 of Schedule 6 may be acquired or used for the purpose set out in column (3) of the table. This table therefore gives an indication of the purposes for which certain parcels of land may be acquired or used (for example, for utility diversions, means of access, or for a worksite).
23. Clause 6(3) brings into effect Parts 2 and 3 of Schedule 6, which deal with the application of legislation relating to compulsory purchase and supplementary provisions.
24. Clause 6(4) provides that the power granted by subsection (1) shall not apply to land if the surface of the land is comprised in a highway and the land is specified in the table in paragraph 15(2) of Schedule 3.
25. Clause 6(5) provides that the power granted by subsection (1) shall not apply to any land shown as being required temporarily, unless the land is also specified in the table in paragraph 11(1) of Schedule 6. In that case the power does extend to the acquisition of subsoil at a depth greater than 9 metres from the surface of such land.
26. Clause 6(6) provides that the compulsory purchase power granted by subsection (1) shall expire 5 years after the Bill secures Royal Assent.
27. Clause 6(7) allows the Secretary of State, by order, to extend the time limit in subsection (6). Any such order is subject to special parliamentary procedure.
Clause 7: Acquisition of land not subject to the power under section 6(1)
28. Clause 7(1) allows the Secretary of State to acquire compulsorily land outside the Bill limits, if it is needed in connection with Crossrail.
29. Clause 7(2) and (3) enable the Secretary of State to acquire land within the Bill limits, if it is needed in connection with Crossrail, but restrict the power so that it only applies where the power under clause 6(1) does not. The difference between the two powers is that the former requires the making of a compulsory purchase order, whereas the latter does not (see paragraph 2 of Schedule 6).
30. Clause 7(4) makes it clear that land may be acquired under these provisions for certain purposes, such as for the relocation of drainage or utility undertakers' apparatus, which can sometimes be needed some distance from the line of the railway itself, or for land statutorily required to be provided in exchange for land taken.
31. Clause 7(5) allows the Secretary of State to acquire an easement or other new right over the land in question, as opposed to acquiring the land itself.
32. Clause 7(6) provides that any acquisition under the clause would be subject to normal compulsory purchase procedures under the Acquisition of Land Act 1981.
33. Clause 7(7) provides that the same modifications of the compulsory purchase legislation apply in relation to the acquisition of easements under subsection (5) as apply in relation to the acquisition of easements under clause 6(1).
Clause 8: Extinguishment of private rights of way
34. Clause 8(1) and (2) provide for any private rights of way over land within the Bill limits held by the Secretary of State for the purposes of the Crossrail works to be extinguished.
35. Clause 8(3) sets out certain rights of way that are not to be extinguished.
36. Clause 8(4) enables the Secretary of State to direct that any other particular right of way is to be excepted from extinguishment under the clause.
37. Clause 8(5) and (6) provide for the private rights of way to be extinguished at the time of acquisition, in respect of some land, and at the time of entry onto the land, in the case of other land.
38. Clause 8(7) and (8) provide that compensation may be payable to anyone who suffers loss as a result of any such extinguishment, with any disputes about such compensation to be determined under the Land Compensation Act 1961 ("the 1961 Act").
Clause 9: Extinguishment of rights of statutory undertakers etc.
39. Clause 9(1) provides for the rights of statutory undertakers over land held by the Secretary of State for the purposes of the Crossrail works to be extinguished as if it had been acquired under Part 9 of the Town and Country Planning Act 1990 ("the 1990 Act").
40. Clause 9(2) to (5) amend the application of the 1990 Act. This is primarily necessary because the compulsory purchase powers in the Bill are vested in the Secretary of State, not the nominated undertaker, and so the nominated undertaker will not have been the acquiring authority.
Clause 10: Planning: general
41. Clause 10(1) provides for deemed planning permission under Part 3 of the Town and Country Planning Act 1990, to be granted for the development authorised by the Bill, subject to subsection (2).
42. Clause 10(2), (3) and (8) provides that the deemed planning permission only applies to development comprising a specified work listed in Schedule 1 to the Bill (a "scheduled work") or, in the case of other ancillary development not comprising a scheduled work which is likely to have a significant effect on the environment or otherwise requires environmental assessment, if the ancillary development has been environmentally assessed in the environmental statement deposited with the Bill.
43. Clause 10(4) provides that where an application for planning permission is made to the local planning authority in respect of development excluded from the deemed planning permission conferred by clause 10(1) by virtue of clause (2), (3) and (8), the requirements for environmental assessment are to apply to the application even if the area of the development does not exceed the thresholds provided for in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
44. Clause 10(5) brings into effect Schedule 7. Schedule 7 establishes a planning regime that seeks to give local planning authorities an appropriate degree of control over the detailed planning aspects of Crossrail (and will be augmented by other arrangements outside the Bill, such as a Planning Memorandum and a Construction Code of Practice, designed to sit alongside the legislative provisions). These provisions, and the accompanying documents, are based on the framework established for the Channel Tunnel Rail Link.
Clause 11: Permitted development: time limit
45. Clause 11(1) provides that, for scheduled works, the deemed planning permission granted by clause 11 applies only to works begun within ten years of Royal Assent.
46. Clause 11(2) allows the Secretary of State to extend this time limit by means of an order.
47. Clause 11(3) provides for such an order to be subject to the negative resolution procedure.
48. Clause 11(4) disapplies section 91 of the Town and Country Planning Act 1990, which sets out the duration of normal planning permission, in respect of the planning permission granted by subsection (1).
Clause 12: Fees for planning applications
49. Clause 12(1) allows the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to issue regulations about the fees to be charged by local planning authorities for the requests for approval of details under Schedule 7 of the Bill to be submitted for Crossrail.
50. Clause 12(2) and (3) set out what those regulations may cover.
51. Clause 12(4) provides for the regulations to be issued in the form of a statutory instrument subject to negative resolution procedure.
52. Clause 12(5) disapplies any regulations issued under section 303 of the Town and Country Planning Act 1990, which set out the fees normally charged for planning applications, in respect of any planning application submitted pursuant to clause 10(1). This is necessary because the regulations issued under subsection (1) will cover requests for approval of details under Schedule 7 of the Bill.
Clause 13: Power to disapply section 10(1)
53. Clause 13(1) allows the Secretary of State, by means of an order, to disapply the deemed planning permission granted by clause 10(1) in respect of development consisting of operations for the maintenance or alteration of the Crossrail works, from the date specified in the order. In essence, this provision allows the Secretary of State to switch off the deemed planning permission granted by the Bill in respect of future Crossrail works, should he decide to do so (this is most likely to be used in the case of the electrification and signalling work done on sections of the existing railway network, and would ensure that a single planning regime covered works in relation to existing track after the Crossrail construction phase has been completed).
54. Clause 13(2) provides that, in the event of such a disapplication, any such development would be subject to the normal provisions of the Town and Country Planning (General Permitted Development) Order 1995 applying to development authorised by a local Act.
55. Clause 13(3), (4) and (5) provide for the order to make different provisions in different cases, and for it to be issued by means of a statutory instrument.
Clause 14: EIA regulations: replacement development
56. Clause 14(1), (2) and (3) provide that where a building is demolished or substantially demolished for the purposes of the Crossrail works, any later planning application for its replacement (for example, for building over a Crossrail station) must be accompanied by an environmental assessment if the building demolished or substantially demolished is listed in the table in the clause or it is not so listed but the provision of the replacement would be likely to have significant effects on the environment. This provision is intended to ensure that all the direct and indirect environmental effects of the development authorised by the Bill are properly assessed at the appropriate stage.
Clause 15: Disapplication and modification of controls
57. Clause 15 brings into effect Schedule 8, which contains provisions dealing with the heritage aspects of Crossrail.
Clause 16: Rights of entry
58. Clause 16 brings into effect Schedule 9, which contains provisions dealing with the rights of entry granted to the Historic Buildings and Monuments Commission for England, or English Heritage as it is more commonly known.
Clause 17: Power to deal with trees on neighbouring land
59. Clause 17(1) allows the nominated undertaker, by notice, to require the occupier of land on which a tree is situated which overhangs the Crossrail works to remove, top or lop that tree where is it necessary to allow the Crossrail works to be maintained, or for the safe operation of Crossrail.
60. Clause 17(2) and (3) allow the occupier of the land to serve a counter-notice objecting within 28 days, in which case the matter is referred to the County Court to determine whether the notice should be confirmed.
61. Clause 17(4), (5) and (6) allow the nominated undertaker, in default of a notice being complied with, to do himself the things required to be done by the notice, subject to doing any topping or lopping work in a husband-like manner and in such a way as to cause the minimum of damage to the tree.
62. Clause 17(7) allows the occupier of the land on which the tree concerned is growing to apply to the County Court for compensation for loss or damage suffered, or for any expenses in complying with the notice.
Clause 18: Disapplication of controls
63. Clause 18(1) and (2) disapply tree preservation orders made under section 198(1) of the Town and Country Planning Act 1990 and the provisions of section 211 of the Act, dealing with trees in conservation areas, from any tree works that are carried out under clause 17, or as a consequence of the construction or maintenance of Crossrail works, or to enable the safe operation of Crossrail.
Clause 19: Control of construction sites: appeals
64. Clause 19(1), (2) and (3) modify the operation of sections 60 and 61 of the Control of Pollution Act 1974, so that appeals under those provisions are determined by the Secretary of State or if the parties' agree by arbitration, rather than by a magistrates' court.
65. Clause 19(4) enables the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to make regulations about procedure in relation to such arbitrations. Such regulations would be made by statutory instrument.
Clause 20: Proceedings in respect of statutory nuisance: defence
66. Clause 20 provides that an order under section 82(2) of the Environmental Protection Act 1990 may not be made by a magistrates' court in connection with noise emitted from premises, or from a vehicle, machinery and equipment in a street, where the nominated undertaker can show that they are used for Crossrail purposes and the Crossrail works concerned are being carried out in accordance with a notice or consent issued by the local authority under section 60, 61 or 65 of the Control of Pollution Act 1974. These provisions of the 1974 Act address control of noise on construction sites (section 60), consent for work on construction sites (section 61) and consent to exceed noise limits (section 65).
Clause 21: Licensing
67. Clause 21 temporarily disapplies the requirement for either a licence, or a licence exemption, under the Railways Act 1993 ("the 1993 Act") which would otherwise exist in respect of any network constructed using Bill powers, and in respect of any train being used on such a network. This disapplication lasts until the Secretary of State gives notice of his determination that the network is ready for commercial use. Before newly constructed track is open for commercial use, it is possible that use will be made of it for construction purposes or for testing, and this clause removes the need for a licence in respect of such operations.
Clause 22: Overriding duty of Office of Rail Regulation before Crossrail operational
68. Clause 22(1) provides that in the period between Royal Assent and the start of Crossrail passenger services, the Office of Rail Regulation ("ORR") shall exercise its functions, so far as they relate to access contracts, in a manner so as to facilitate the operation of the principal Crossrail passenger service on or after a date specified by the Secretary of State. This clause ensures that, in regulating access contracts entered into after Royal Assent, the ORR will take into account prospective principal Crossrail passenger services.
69. Clause 22(2) identifies those functions exercised by the ORR which will be subject to the overriding duty. They are functions relating to the control of terms in access contracts. Access contracts are agreements in which permission is given by the owner of a railway facility for a person to make use of that facility.
70. Clause 22(3) ensures that the overriding duty does not affect, and hence bias, certain economic aspects of the ORR's functions.
71. Clause 22(4) makes the overriding duty in the above subsection subject to the ORR's general duty as regards railway safety under the Railways Act 1995.
72. Clause 22(5) allows the ORR, with the consent of the Secretary of State, to contravene the duty set out in subsection (1).
73. Clause 22(6) provides that the interim period in subsection (1) is between Royal Assent and the first use of the central London tunnel by any passenger service.
74. Clause 22(7) and (8) provides that the Secretary of State may extend the interim period. If he does so he must specify the new end date, inform the ORR and publish the direction. He can may different provision for different purposes and the direction may be varied or revoked.
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