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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;

 

 

 
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Revised 19 May 2005