House of Commons - Explanatory Note
Crossrail Bill - continued          House of Commons

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Clause 41: Arbitration under section 39(3): multiple proceedings

142.     Clause 41 sets out the arrangements to apply in the case of multiple arbitrations under clause 40, allowing those proceedings to be consolidated or held concurrently.

143.     Clause 41(2) means that any group of hearings to be consolidated must consist of section 39(3) proceedings and arbitral proceedings relating to one or more such set of proceedings.

Clause 42: Transfer of functions relating to works

144.     Clause 42(1) provides for the Secretary of State, if he acquires any land from a railway operator for the purposes of Crossrail and on that land there are works authorised by statute, to, by means of an order, transfer to him or to the nominated undertaker, any statutory power or duty relating to the works previously exercisable by the railway operator. This clause simply allows any statutory powers or duties to be transferred with the land acquired.

145.     Clause 42(2) allows the Secretary of State, by means of an order, to provide for the further transfer to himself or to a nominated undertaker of any power or duty transferred under this clause.

146.     Clause 42(3) allows the Secretary of State, if a railway operator acquires any land from the Secretary of State on which there are Crossrail works, to, with the consent of the railway operator concerned, by order transfer any duty under the Bill relating to the works.

Clause 43: Application of section 122 of the Railways Act 1993

147.     Clause 43 is designed to make the defence of statutory authority that is available under section 122 of the 1993 Act, and is relevant to actions for nuisance etc, available in circumstances where the licensing requirement under the 1993 Act does not apply because of clause 21. This is necessary because section 122 only applies where the operator of the relevant railway asset has a licence, or the benefit of a licence exemption, under the 1993 Act.

Clause 44: Application of other railway legislation

148.     Clause 44 brings into effect Schedule 10, which contains provisions dealing with the application of railway legislation to Crossrail.

Miscellaneous and general

Clause 45: Transfer schemes

149.     Clause 45 brings into effect Schedule 11, which sets out the power of the Secretary of State to make schemes to transfer property, rights and liabilities.

Clause 46: Holder of functions of nominated undertaker

150.     Clause 46(1) provides for the Secretary of State to nominate, by means of an order, one or more nominated undertakers for the purposes of the Bill.

151.     Clause 46(2) provides that, in the absence of a named nominated undertaker for any provision of the Bill, the Secretary of State is deemed to be the nominated undertaker for the purposes of that provision. This is to cover the situations that would arise should no nominated undertaker be appointed or where there is a delay between a nomination ceasing to have effect (for example because an agreement is terminated) and the Secretary of State's making another nomination in favour of some other person.

152.     Clause 46(3) allows the Secretary of State, by agreement with the Mayor of London or whoever is proposed to be named in a nomination order, to fetter his discretion as to the exercise of the power granted by subsection (1). This power is necessary to enable the Secretary of State to make contractual arrangements prior to the nomination of a person or body as the nominated undertaker.

153.     Clause 46(4) and (5) require the Secretary of State to consult the Mayor of London before making certain nomination orders or entering into an agreement with anyone, other than the Mayor, under which the Secretary of State fetters his nomination power.

154.     Clause 46(6) allows the Secretary of State, by means of an order, to make any modifications to the provisions of the Act resulting from the Bill that relate to the Secretary of State, where he has himself the functions of nominated undertaker.

155.     Clause 46(7), (8) and (9) provide that orders made under this clause are to be made by statutory instrument and enable the Secretary of State to include in such orders supplementary, incidental, consequential and transitional provisions. Orders made under subsection (6) are subject to the negative procedure.

Clause 47: Disapplication and modification of miscellaneous controls

156.     Clause 47 brings into effect Schedule 12, which contains provisions dealing with the disapplication and modification of miscellaneous controls in relation to Crossrail.

Clause 48: Burial grounds

157.     Clause 48(1) disapplies existing ecclesiastical and other law in relation to any disturbance of human remains that may be required as a result of the Crossrail works. This provision is included in case the Crossrail works require that any human remains be disturbed (some suggest that some London squares to be used for Crossrail were used as burial grounds during the period of the Black Death).

158.     Clause 48(2) provides that the disapplication in subsection (1) only applies in respect of human remains removed, reinterred or cremated in accordance with the provisions of Schedule 13, and if any monument (such as a headstone) of the deceased in question has also been dealt with in accordance with Schedule 13. Schedule 13 therefore sets out the regime that applies in order to ensure that any such remains and monuments are dealt with in an appropriate manner.

159.     Clause 48(3) provides that subsection (2) shall not apply where the use of land required by Crossrail does not involve disturbing the human remains interred in it.

Clause 49: Application of landlord and tenant law

160.     Clause 49 disapplies the provisions of landlord and tenant law in relation to any leases granted by the Secretary of State pursuant to any agreement to take forward the development of Crossrail. This provision will permit the recovery of leased land where a development agreement is terminated and thus ensures that such land is not lost to the Crossrail project in such a case.

Clause 50: Compensation for injurious affection

161.     Clause 50 provides that section 10(1) of the Compulsory Purchase Act 1965, which deals with compensation for injurious affection, shall have effect, in respect of land injuriously affected by the Crossrail works, with the substitution of "nominated undertaker" for "acquiring authority". Again, this amendment is 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, who will be responsible for any injurious affection compensation, will not have been the acquiring authority.

Clause 51: Application of Act to extensions

162.     Clause 51 permits any Transport and Works Act ("TWA") 1992 order which relates to a proposed extension of Crossrail to apply any provision of the Bill, with any modifications necessary, to the order, or provide for any provision of the Bill to have effect as if the extension were part of Crossrail. Certain provisions of the Bill - those dealing with the extension of compulsory purchase powers and listed buildings, buildings in conservation areas and ancient monuments - are to be excluded from application in this way. The clause allows any such TWA order to make the provision needed to ensure that any extension is subject to the same regime as the Crossrail scheme covered by the Bill.

Clause 52: Protection of interests

163.     Clause 52 brings into effect Schedule 14, which contains provisions setting out the protections to be provided for various bodies affected by the works.

Clause 53: Power to devolve functions of Secretary of State

164.     Clause 53(1) allows the Secretary of State, by means of an order, to devolve certain provisions of the Bill to the Greater London Authority, Transport for London or to the Greater London Authority and Transport for London. This power is necessary to allow the flexibility for the Crossrail project to be taken forward by these bodies, should the Secretary of State consider this to be appropriate.

165.     Clause 53(2) allows the Secretary of State to fetter his discretion under subsection (1) by agreement with the Mayor of London or Transport for London.

166.     Clause 53(3) to (6) set out the arrangements to apply to an order under this clause. Such an order is to be made by statutory instrument and laid before Parliament.

167.     Clause 53(8) sets out provisions of the Bill which are to be capable of being devolved under this clause. These include land acquisition powers and the power to make orders in relation to nominated undertakers.

Clause 54: Correction of deposited plans

168.     Clause 54 sets out a mechanism whereby any inaccuracy in the deposited plans or in the "book of reference" (the list of all the properties affected by the Bill that is deposited with the Bill on introduction) that accompanied the Bill may be corrected. These provisions are normal in Hybrid Bills and local Acts.

Clause 55: Service of documents

169.     Clause 55 sets out how a document may be served on any person, where that is required or authorised under the Bill.

Clause 56: Arbitration

170.     Clause 56 sets out how disputes under the Bill will be dealt with unless otherwise provided for. Disputes will be settled by a single arbitrator agreed by both parties. If no agreement can be reached on the identity of that single arbitrator, either party may, having informed the other, ask the President of the Institution of Civil Engineers to appoint an arbitrator.

171.     If the President of the Institution of Civil Engineers notifies the parties that he is not going to appoint an arbitrator, and the parties are unable to agree on who should act as arbitrator, either party may, having informed the other, ask the ORR to appoint an arbitrator. That arbitrator may be someone from the ORR.

172.     The clause also allows the Secretary of State for Transport, and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to issue procedural rules governing arbitration.

COMMENTARY ON SCHEDULES

Schedule 1 - Scheduled works

173.     Schedule 1 sets out the Crossrail scheduled works, which are the main works authorised by the Bill. Each of these works has a centre line shown for it on the deposited plans, with a limit of lateral deviation, and a level shown on the deposited sections.

Schedule 2 - Works: further and supplementary provisions

174.     Paragraph 1 grants the nominated undertaker general powers to carry out ancillary works additional to the scheduled works.

175.     Paragraph 2 allows the nominated undertaker to provide highway accesses, whether permanent or temporary, at the points marked on the deposited plans or, with the consent of the highway authority, that consent not to be unreasonably withheld, at any other point within the Bill limits. Any disputes over the provision of highway accesses are to be determined by the Secretary of State unless the parties agree that the matter should be referred to arbitration.

176.     Paragraph 3 grants the nominated undertaker the power to divert the particular overhead electric lines listed, as these will need to be moved in connection with the carrying out of the Crossrail works. This is in addition to the general power conferred by paragraph 1(1)(f) of the Schedule.

177.     Paragraph 4 grants the nominated undertaker the power to carry out and maintain landscaping or other mitigation works necessary as a result of the Crossrail works.

178.     Paragraphs 5 to 7 allow the nominated undertaker to safeguard, by means of underpinning or strengthening, buildings and other structures.

179.     Paragraph 8 allows the nominated undertaker to make use of sewers and watercourses for removing water in connection with the construction or maintenance of Crossrail. Any disputes over making use of sewers and watercourses are to be determined by the Secretary of State unless the parties agree that the matter should be referred to arbitration.

180.     Paragraph 9 allows the nominated undertaker to carry out surveys and investigative works, and to protect or remove flora and fauna, in connection with the construction of Crossrail. Any disputes over entry to carry out surveys and investigative works are to be determined by the Secretary of State unless the parties agree that the matter should be referred to arbitration.

181.     Paragraph 10 provides for the temporary obstruction of rights of navigation over certain waterways occasioned by the Crossrail works. The nominated undertaker is also given the power to interfere with the waterways concerned (including its banks, bed and foreshore) at any point within the Bill limits, including the power to carry out temporary works and dredging works, temporarily to moor or anchor barges or other vessels and temporarily to close the relevant waterway or a part of its navigation.

Schedule 3 - Highways

182.     Paragraph 1 grants the nominated undertaker the power to stop up permanently certain specified highways. Some of the highways may be stopped up without providing a substitute, and some may be stopped up upon the provision of a substitute.

183.     Paragraph 2 grants the nominated undertaker the power to stop up any other bridleway or footpath situated within the Bill limits, subject to confirmation by the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly.

184.     Paragraph 3 provides that for any highway, bridleway or footpath stopped up under paragraphs 1 and 2, all rights of way over or along it shall be extinguished. Compensation may be payable to anyone who suffers loss as a result of the extinguishment of a private right of way.

185.     Paragraph 4 provides that the power to carry out associated works conferred by paragraphs 1 and 4 of Schedule 2 may be exercised in a way that permanently obstructs the highway, but only with the consent of the local highway authority. Such consent is not to be unreasonably withheld, and a request for consent is deemed to have been given if it has not been given or refused within 28 days. Any disputes over the granting of consent are to be determined by the Secretary of State unless the parties agree that the matter should be referred to arbitration.

186.     Paragraph 5 allows the nominated undertaker, for the purposes of constructing or maintaining Crossrail, temporarily to stop up, alter or divert any highway, to break up and interfere with the highway and to divert traffic from it. In respect of the highways listed in the paragraph, there is a requirement to consult the local highway authority with a view to ensuring public safety and, so far as reasonably practicable, to reduce public inconvenience. For highways not listed, there is a requirement to obtain the consent of the local highway authority, such consent not to be unreasonably withheld, but consent may be given subject to reasonable conditions in the interest of public safety or convenience. A request for consent is deemed to have been given if it has not been given or refused within 28 days. Any disputes over the granting of consent are to be determined by the Secretary of State unless the parties agree that the matter should be referred to arbitration.

187.     Paragraph 6 authorises the nominated undertaker to use any highway which is temporarily stopped up as a working site, provided that the part of the highway concerned is situated within the Bill limits.

188.     Paragraph 7 allows the nominated undertaker to place, maintain, reposition and remove apparatus from any highway within the Bill limits.

189.     Paragraph 8 deems certain highway works carried out under the Bill to be major highway works for the purposes of the New Roads and Street Works Act 1991. The effect of this is to apply, to highway works carried out by the nominated undertaker under the Bill, the same procedures and code for settling how changes to apparatus in a street are dealt with (and costs apportioned) where changes to the apparatus are necessitated by the highway works as applies to highway works carried out by the highway authority.

190.     Paragraph 9 requires any new or altered highway to be completed to the reasonable satisfaction of the highway authority, and for that to be certified by the highway authority, and paragraph 10 requires any realigned or new highway to be constructed in accordance with specifications approved by the highway authority.

191.     Paragraph 11 provides for a 12 month period after practical completion of any new or altered highway and it being open for public use during which the nominated undertaker is responsible for maintenance (following which the highway authority is responsible for maintenance), and for the issue of certificates. Disputes under those paragraphs are determined by the Secretary of State unless the parties agree to arbitration.

192.     Paragraph 12 provides that nothing in section 46 of the Railways Clauses Consolidation Act 1845 shall require the nominated undertaker to maintain the surface of a highway under or over which the schedule works are constructed, or the immediate approach to any such highway. That responsibility will continue to rest with the highway authority.

193.     Paragraph 13 applies sections 116 to 117 of the Transport Act 1968, which sets out duties in respect of bridges carrying highways over railways.

194.     Paragraph 14 allows the nominated undertaker to enter into agreements concerning the construction of a new highway, the alteration of an existing highway and related matters with those having the charge, management or control of that highway. This allows the nominated undertaker to enter into agreement with, for example, local highway authorities, so that they may, for example, carry out some of the works themselves.

195.     Paragraph 15 allows the nominated undertaker to enter upon, take and use for Crossrail the subsoil of any highway where the subsoil concerned is subject to compulsory purchase under the Bill, without being required to acquire that subsoil or any right in it, except in respect of the areas listed in the table in the paragraph.

Schedule 4 - Overhead lines: consent

196.     Schedule 4 sets out the alternative consents regime that will apply to the installation of overhead electric lines within the Bill limits, given the disapplication of section 37 of the Electricity Act 1989 ("the 1989 Act") in clause 4.

197.     Paragraph 2 requires any installation to be made in accordance with the consent granted by the appropriate Ministers (defined in paragraph 12 for these purposes as the Secretary of State for Transport and the Secretary of State for Trade and Industry, acting jointly).

198.     Paragraph 3 sets out what an application for consent should contain.

199.     Paragraph 4 allows the appropriate Ministers to request in writing that the application be supplemented by specified additional information.

200.     Paragraph 5 sets out the publicity requirements that must be complied with in respect of certain applications.

201.     Paragraph 6 allows the appropriate Ministers, within 14 days of receiving an application for consent, to invite the local planning authority to comment on the application. The local planning authority have 28 days to comment on the application.

202.     Paragraph 7 requires the appropriate Ministers, within 14 days of receiving an application for consent, if they consider that the application relates to certain matters, to invite certain other bodies to comment on the application. Those bodies -English Nature, the Countryside Commission, and the Historic Buildings and Monuments Commission for England (more commonly known as English Heritage) - will have 14 days to comment on the application.

203.     Paragraph 8 sets out the grounds on which an application for consent by the nominated undertaker may be refused.

204.     Paragraph 9 allows the appropriate Ministers to make the grant of consent subject to any conditions they deem appropriate.

205.     Paragraph 10 allows the Secretary of State to vary or revoke the consent granted, after the period specified in the consent, which will not be less than ten years from the date of installation.

206.     Paragraph 11 provides that subject to paragraph 10, the consent granted will continue in force for the period specified in the consent.

Schedule 5 - Temporary possession and use of land

207.     Schedule 5 allows the nominated undertaker temporarily to take over possession of, and make use of, land in connection with carrying out the Crossrail works. The land in question is shown in the table in paragraph 1, together with the purposes for which the land may be used. This table therefore gives an indication of the purposes for which certain parcels of land may be temporarily used (for example, for mitigation works, utility diversions, means of access, the provision of working space, for highway access purposes, or for a worksite). The paragraph requires at least 28 days notice to be given to the owners and occupiers of the land before possession is taken, and the possession is time-limited to one year after completion of the works unless the owners agree otherwise. Compensation may be payable for such possession, with any disputes about such compensation to be determined under the Land Compensation Act 1961 ("the 1961 Act").

208.     Paragraph 2 requires the nominated undertaker, before giving up possession of any land used under paragraph 2, to put the land in question back into such condition as may be agreed in a scheme between him, the owners of the land and the local planning authority, or determined by the appropriate Ministers (for these purposes defined as the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly). The paragraph also sets out what such a scheme may and may not require.

209.     Paragraph 3 allows the nominated undertaker to use any road situated on land specified in paragraph 8 of Schedule 6 for the passage of persons or vehicles. Compensation may be payable for any loss suffered as a result of such use, with any disputes about such compensation to be determined under the 1961 Act.

210.     Paragraph 4 allows the nominated undertaker, during the maintenance period of any work (which is defined as being up to five years from the date on which the work is brought into general use), to enter upon and take possession of land within the Bill limits and within 20 metres of any scheduled work, if such possession is necessary for maintaining the work. The power granted by the paragraph does not apply to any house or garden, or land not subject to compulsory purchase under the Bill, and the nominated undertaker must give at least 28 days notice to the owners and occupiers of the land before possession is taken. The nominated undertaker may only remain in possession of such land as long as is reasonably necessary, and must, before giving up possession, restore the land in question to the reasonable satisfaction of the owners of the land. Compensation may be payable for any loss suffered as a result of such use, with any disputes about such compensation to be determined under the 1961 Act.

211.     Paragraph 5 allows for private rights of way to be temporarily suspended and provides 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 1961 Act.

212.     Paragraph 6 sets out the arrangements for the enforcement of any possession required under the paragraph, should the owner or occupier of the land in question refuse to give up possession of it or hinder the taking of possession. It makes similar provision to that applying to the taking of possession following notice of entry on a compulsory purchase.

 
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Prepared: 16 November 2006