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Schedule 11 - Transfer schemes
274. Parts 1, 2 and 3 set out the powers of the Secretary of State to make schemes for the transfer of property, rights and liabilities ("transfer schemes") from himself or certain other bodies to any person, including the Secretary of State.
Part 1 - Transfers from Cross London Rail Links Limited and its subsidiaries
275. Paragraph 1 allows for transfers from Cross London Rail Links Limited ("CLRL") or any of its subsidiaries. The Secretary of State is required to consult CLRL before making any such scheme.
Part 2 - Transfers from the Greater London Authority, Transport for London, the London Development Agency and their subsidiaries
276. Paragraph 2 allows for transfers from the Greater London Authority, the London Development Agency or Transport for London or any of their subsidiaries. The Secretary of State may exercise this power only for the purposes connected with Crossrail and only with the consent of the transferor.
Part 3 - Transfers from the Secretary of State and companies owned by Secretary of State
277. Paragraph 3 allows for transfers from the Secretary of State, or a company wholly owned by him, as defined, to anyone else. The transfer must be for purposes connected with Crossrail.
Part 4 - General provisions about transfer schemes
278. Paragraph 4 specifies certain types of property, rights and liabilities that may be included in a transfer scheme.
279. Paragraph 5 provides that where property is transferred by transfer scheme new interests, or rights may be created in relation to that property in favour of the person from whom it has been transferred. Conversely, new interests and rights may be created in favour of the person to whom property has been transferred in relation to property that has been retained or transferred to another party. Transfer schemes may also create rights and liabilities between parties affected by a transfer scheme.
280. Paragraph 6 provides that what is transferred by, or retained following, a transfer scheme may be named specifically or simply described.
281. Paragraph 7 allows for a transfer scheme to make provision for contraventions of any terms applicable to the things transferred to be treated as not occurring. This will allow for the transfer of property, rights or liabilities that would otherwise not be transferable.
282. Paragraph 8 provides for the transfer of shares in a subsidiary of the transferor not to be subject to any terms in relation to the transfer of those shares.
283. Paragraphs 9 and 10 provide that a transfer scheme may modify the interests, rights and liabilities of third parties in relation to the things to be transferred.
284. Paragraph 11 provides that a transfer scheme may impose obligations on the person to whom or from whom things are transferred to enter into agreements with and to execute instruments in favour of any other person specified in the scheme.
285. Paragraph 12 provides for transfer schemes to contain supplementary provisions.
286. Paragraph 13 provides for a transfer scheme to have effect at the time or times set out in the scheme.
287. Paragraph 14 allows for a transfer scheme to be modified if the parties to it, or certain other parties, agree. Modifications can have effect from the date of the scheme, or later.
288. Paragraph 15 provides for continuity of employment for employees who transfer as a part of any transfer scheme.
289. Paragraphs 16 and 17 allow the Secretary of State to issue a direction requiring information to be provided by the relevant parties to enable him to make a transfer scheme, require that a direction must set out the a timescale for responding of no more than 28 days and describe what happens if the parties to whom a direction is given do not respond.
Schedule 12: Disapplication and modification of miscellaneous controls
290. Schedule 12 disapplies or modifies a number of provisions in existing legislation where these are contradictory to the exercise of the powers sought for Crossrail or which require adjustment in consequence of land acquisition powers being vested in the Secretary of State and the power to carry out works being vested in the nominated undertaker.
291. Paragraph 1 provides that no obligation or restriction imposed under ecclesiastical law or in relation to consecrated land shall impose any restriction on the powers conferred by the Bill.
292. Paragraph 2 disapplies the London Overground Wires etc Act 1933 ("the 1933 Act") and any bye-law made under it, in respect of any wire or part of a wire erected or maintained as part of the Crossrail works.
293. Paragraph 3 essentially disapplies sections 3 and 9 of the London Squares Preservation Act 1931 ("the 1931 Act") in respect of the Crossrail works. Works are to be carried out under, and use is to be made of, Hanover Square and Finsbury Circus, and this requires disapplications of relevant restrictions in the 1931 Act.
294. Paragraph 4 disapplies parts of the London Buildings Acts (Amendment) Act 1939 ("the 1939 Act") with respect to anything held in connection with Crossrail by the Secretary of State or the nominated undertaker. The 1939 Act contains an exemption for certain buildings or structures belonging to a railway company and situated on a railway or within a railway or station premises. As land acquisition powers in the Bill are to be vested in the Secretary of State, this disapplication is required so that a similar exemption applies to Crossrail.
295. Paragraph 5 disapplies section 34(1) of the Coast Protection Act 1949 ("the 1949 Act") in respect of Crossrail works, as it would require the prior consent of the Secretary of State to be obtained before the carrying out of any works affecting navigable waters (which includes the River Thames).
296. Paragraph 6 modifies the application of various provisions of the Port of London Act 1968 in respect of the Crossrail works. These provisions would require licences to be obtained before certain works may be carried out and would preclude the carrying out of dredging operations or certain other operations affecting the bed or bank of the River Thames. The Port of London Authority will benefit from protective provisions set out in Part 6 of Schedule 14.
297. Paragraph 7 modifies the application of various pieces of highways legislation that would require consent to be obtained before certain works (such as erecting scaffolding, the planting of trees or shrub in or near a highway, or the placing of a retaining wall near a highway etc) can be carried out.
298. Paragraph 8 disapplies provisions of the Wildlife and Countryside Act 1981, as amended, that limit what may be done in, or affecting, a Site of Special Scientific Interest.
299. Paragraph 9 disapplies Part 1 of the Building Act 1984 ("the 1984 Act") with respect to building regulations, and building regulations in relation to certain buildings held in connection with Crossrail by the Secretary of State or the nominated undertaker. The 1984 Act contains an exemption for buildings belonging to a statutory undertaker. As land acquisition powers in the Bill are to be vested in the Secretary of State, this disapplication is required so that a similar exemption applies in relation to Crossrail.
300. Paragraph 10 disapplies section 5 of the Food and Environment Protection Act 1985 in respect of Crossrail works. That section would require a licence to be obtained from the Secretary of State before certain deposits in the sea (which includes the River Thames) are made.
301. Paragraphs 11 to 13 modify the application of the London Lorry Ban Order ("the Order") in respect of Crossrail works. Given that the routing of large goods vehicles is intended to be one of the areas of control that qualifying planning authorities will have under the planning regime established under the Bill, paragraphs 11 to13 restrict the right to refuse or condition a permit under the Order, with disputes to be settled by the Secretary of State. They also make provision for the grant of emergency permits, in the case where a permit is required within eight working days of application.
302. Paragraph 14 disapplies various provisions of the Greater London Council (General Powers) Act 1986 ("the 1986 Act") concerning the doing of things under a street in respect of the Crossrail works. This is because the 1986 Act would otherwise require the consent of the relevant London borough to the demolition of a building or other structure under a street, and to other associated works.
303. Paragraph 15 modifies the application of the New Roads and Street Works Act 1991 ("the 1991 Act") to the Crossrail works, as the 1991 Act contains a number of provisions which would otherwise restrict the ability of the nominated undertaker to carry out works in the street.
304. Paragraph 16 applies the national rules rather than Greater London rules to the making of connections to public sewers for the drainage of Crossrail.
305. Paragraph 17 disapplies various provisions of the Party Wall etc Act 1996 in respect of the Crossrail works. This removes the need for the nominated undertaker to issue a notice to an adjoining landowner before constructing certain walls and fences, or to secure the consent of that landowner before carrying out any excavation or erection, and ensures that an adjoining landowner has no right over any Crossrail works.
Schedule 13: Burial grounds: removal of human remains and monuments
306. Paragraph 1 requires the nominated undertaker to publish and display notice of his intent to remove any human remains or monument before any such removal, and sets out what such a notice should include. No notice is to be required in cases where the Secretary of State has notified the nominated undertaker that he is satisfied that the remains are more than a hundred years old, and that no relative or representative of the deceased is likely to object. Nor is a notice to be required in cases where the nominated undertaker already holds a licence to remove human remains under section 25 of the Burial Act 1857 ("the 1857 Act").
307. Paragraph 2 sets out the circumstances in which the nominated undertaker may issue a licence, allowing for the removal and reinterment or cremation of human remains, to a relative or representative of the deceased, upon written request. The reasonable costs of removal and reinterment or cremation will be paid by the nominated undertaker.
308. Paragraph 3 allows the nominated undertaker to remove human remains where no written request by a relative or representative is received, or where a licence has been issued but the remains have not been removed after 28 days. Such remains are to be reinterred in a burial ground or cremated in a crematorium.
309. Paragraph 4 sets out the arrangements to apply to the removal of any monument associated with any human remains removed under the Schedule. Where a licence has been issued, the relative or representative of the deceased may also remove the monument associated with it, to re-erect it elsewhere or to dispose of it. The reasonable costs of so doing will be paid by the nominated undertaker.
310. Paragraph 5 allows the nominated undertaker to remove any monument associated with any human remains he removes, or, where a licence has been granted, a monument has not been removed within 28 days. The nominated undertaker can also remove any monument associated with any human remains the subject of a licence held under the 1857 Act. Monuments removed may be re-erected where the remains are re-interred, or at some other appropriate place, or, failing that, are to broken up and defaced.
311. Paragraph 6 sets out the records required to be kept by the nominated undertaker in respect of any human remains or monuments removed under the Schedule.
Schedule 14 - Protective provisions
312. Schedule 14 contains provisions setting out the protections to be provided for various bodies likely to be affected by the works.
Part 1 - Protection for highways and traffic
313. Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker and the highway authority concerned agree to vary them. The bodies for which this protection applies include all the highway authorities for highways in which the powers of the Bill can be exercised (ie both the local highway authorities (local authorities and Transport for London) and, in respect of trunk roads, the Secretary of State). The arrangements set out here are in addition to the protection given to such authorities in Schedules 2 and 3 to the Bill (for example, the right to approve temporary closures, the creation of new accesses, and the construction of new or altered streets).
314. These arrangements will apply instead of arrangements which normally govern street works under Part 3 of the New Roads and Street Works Act 1991 (except that by virtue of paragraph 14(2) the regulations which govern reinstatement of streets under that Act will apply to reinstatement of highways under the powers of this Bill).
315. Paragraph 3 imposes a general obligation to minimise disruption to traffic. This will apply to the nominated undertaker in relation to powers to stop up streets and to construct works.
316. Paragraphs 4, 5 and 7 address works constructed under highways. Approval of plans by the highway authorities is required for works within 8 metres of the surface, and their consent is required for works which interfere with drainage or are within 2 metres of the surface. By virtue of paragraph 2 any consent or approval under these or any other provisions of this Part is not to be unreasonably withheld. In addition such works must be designed, constructed and maintained to carry the appropriate loading recommended for highway bridges.
317. Paragraph 6 applies to works involving bridges. Approval of plans is required if there is any interference with a highway and controls are imposed over the way that the works are constructed.
318. Paragraph 8 gives the highway authorities a right of access to inspect the construction of the works and paragraphs 9 to15 contain miscellaneous provisions governing the way that works are constructed in highways, together with provision for reinstating streets after completion of the work, making good damage caused to highways and street furniture, and providing for reimbursement of costs incurred by highways authorities in connection with road diversions required for the works.
319. Paragraph 17 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of clause 56 of the Bill). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the Secretary of State who must have regard to any matters specified by the Secretary of State on making the appointment. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for the Secretary of State to be involved in the resolution of such disputes.
Part 2 - Protection for electricity, gas, water and sewerage undertakers
320. Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker (or the Secretary of State, in relation to those provisions concerning the Secretary of State's powers under the Bill to acquire land) and the undertakers concerned agree to vary them. The undertakers which enjoy the benefit of these provisions are bodies holding licences under the Electricity Act 1989, licensed gas transporters under the Gas Act 1989, and licensed water and sewerage undertakers under the Water Industry Act 1991. Local authorities exercising sewerage functions under arrangements with the local sewerage undertaker under section 97 of the Water Industry Act are also protected.
321. The protection extends to the bodies in relation to apparatus belonging to or maintained by them for the purpose of their undertaking. However the arrangements will not generally apply to apparatus governed by Part 3 of the New Roads and Street Works Act 1991 (which establishes a nation-wide regime governing street works). Accordingly that Act and the regulations and codes of practice made under it (in particular the Street Works (Sharing of Costs of Works) (England) Regulations 2000 and the Code of Practice "Measures necessary where apparatus is affected by major works (diversionary works)") will apply to the undertakers' apparatus in streets.
322. Paragraph 2 sets out the general principle that apparatus is not to be moved under the powers of the Bill until replacement apparatus has been provided and is in operation. This principle applies except in exceptional circumstances where a certificate is issued by the appropriate Ministers allowing this requirement to be dispensed with. The appropriate Ministers are the Secretary for State for Transport acting jointly with the Secretary of State for Environment, Food and Rural Affairs in relation to water and sewerage undertakers and the Secretary of State for Trade and Industry in relation to other undertakers.
323. Paragraphs 3 to 7 set out a procedure for dealing with diversion of apparatus (which can be required by either the nominated undertaker or the undertaker concerned) in consequence of the Crossrail works. This requires the nominated undertaker or the Secretary of State to provide rights and facilities for the replacement apparatus when it is able to do so, but otherwise the undertaker is required to use its best endeavours to obtain these. The terms relating to any such replacement apparatus are to be agreed or otherwise determined in accordance with the disputes procedure under paragraph 13.
324. Paragraph 8 applies to apparatus which is not proposed to be removed: the nominated undertaker is to provide plans of the proposed works near to the apparatus and the undertaker can require protective measures to be undertaken, or require its removal (in which case the procedures under paragraphs 3 to 7 are to apply).
325. Paragraphs 9 and 10 are intended to protect continued access to apparatus. In particular they provide that the undertaker is to continue to enjoy the same rights for the purpose of maintaining apparatus in streets which have been permanently stopped up under the powers of the Bill.
326. Paragraph 11 provides for reimbursement of the undertakers' cost in connection with the diversion or protection of its apparatus (or arising from the cutting off of apparatus) and paragraph 12 provides an indemnity in respect of damage to apparatus or interruption to the undertakers service, caused by the construction of the works. This indemnity includes provision for reasonable compensation for any losses suffered by the undertaker.
327. Paragraph 13 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of clause 56 of the Bill). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the Secretary of State who must have regard to any matters specified by the Secretary of State on making the appointment. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for the Secretary of State to be involved in the resolution of such disputes.
Part 3 - Protection of land drainage, flood defence, water resources and fisheries
328. Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker and the Environment Agency ("the Agency") agree to vary them. The Agency is the body established under the Environment Act 1995 which has statutory responsibility for flood defence and land drainage, water resources and fisheries. By virtue of the definitions in this paragraph these arrangements apply to protect watercourses (except public sewers) and any drainage work, which is defined as a watercourse, including any flood plain, or any land drainage, flood defence or tidal monitoring work. The provisions apply to any specified work, defined as any work authorised by the Bill which is likely to affect any drainage work or the flow, purity or quality of water in a watercourse or other surface waters or ground water to cause obstruction to fish or damage to any fishery, or affect conservation, distribution or use of water resources.
329. Paragraphs 2 and 3 provide for the Agency to approve plans of any specified works and in approving plans to be able to make reasonable requirements (including requiring the nominated undertaker to construct protective works at its own cost). Approval of plans under these provisions is not to be unreasonably withheld.
330. Paragraph 4 deals with the construction of the specified works (and any protective works). It provides in particular for these to be constructed to the Agency's reasonable satisfaction, for the Agency to have the right to inspect the construction and to require alteration or removal of the works where they have not been constructed in accordance with the requirements of this Part.
331. Paragraph 5 provides for the flood defence works constructed under the powers of the Bill to be maintained to the reasonable satisfaction of the Agency and paragraph 6 requires the nominated undertaker to make good any impairment to the efficiency of drainage works for flood defence purposes or any other damage.
332. Paragraph 7 requires the nominated undertaker to take all reasonably practicable measures to prevent interruption of the free passage of fish in any fishery and contains provision for the nominated undertaker to prevent or make good damage to fisheries (a fishery is defined as any waters containing fish and the fish within or migrating to or from such waters and the spawn, spawning grounds or food of such fish).
333. Paragraph 8 contains a general indemnity for the Agency in respect of claims against it arising from the construction of the specified works in respect of the Agency's functions protected by this Part.
334. Paragraph 11 avoids duplication of consents by providing that an approval or consent given under this Part is to be treated as a consent for the purpose of the various provisions listed in that paragraph. Section 5 of the Metropolis Management (Thames River Prevention of Floods) Amendment Act 1879 would otherwise require consent for the execution of flood works in River Thames, section 109 of the Water Resources Act 1991 would require approval of structures in, over or under watercourses and Part 2 of the Water Resources Act would require a licence for impounding of water. It also disapplies the requirement under section 30 of that Act to give notice of proposals to construct boreholes for abstraction of water in connection with underground works.
335. Paragraph 12 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of clause 56 of the Bill). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the appropriate Ministers who must have regard to any matters specified by the appropriate Ministers on making the appointment. The appropriate Ministers for this purpose are the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs acting jointly. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for the appropriate Ministers to be involved in the resolution of such disputes.
Part 4 - Protection of electronic communications code networks
336. Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker and the operators concerned agree to vary them. The operators to whom these provisions apply are operators of an electric communications code network as defined in the Communications Act 2003.
337. The electronic communications code is the code set out in Schedule 2 to the Telecommunications Act 1984, and an electric communications code network is so much of an electric communications network or conduit system provided by an electronic communications code operator, (ie a person to whom the code is applied by a direction of the Secretary of State under the Communications Act) as is not excluded from the application of the code by such a direction.
338. The protection conferred by this Part applies to any works authorised by the Bill ("the authorised works").
339. Paragraph 2 clarifies the relation between the operation of the electronic communications code, Part 3 of the New Roads and Street Works Act 1991 (which regulates street works) and section 272 of the Town and Planning Act 1990 (which addresses removal of apparatus in land which has been compulsorily acquired).
340. Paragraph 23 of the electronic communications code (which imposes a procedure for the alteration of telecommunications apparatus by statutory undertakers) is to apply for the purpose of the authorised works excepted where those purposes are regulated by or under the New Roads and Streets Works Act 1991 (ie where the apparatus is in a street), or where the nominated undertaker has a right to remove telecommunications apparatus by virtue of the default powers contained in section 272 of the Town and Country Planning Act 1990 or in relation to removal of apparatus in streets stopped up under the powers of the Bill (which is addressed in paragraphs (3) to (8) of paragraph 4 of this Part). Paragraph 21 of the electronic communications code (which restricts other persons' rights to require the removal of electronic communications apparatus) is excluded in the same circumstances.
341. Paragraph 3 provides that the powers of Part 1 of the Bill for the temporary stopping up or diversion of highways are not to affect the statutory rights of operators to use that street for the purpose of installing or maintaining apparatus.
342. Paragraph 4 protects operators' rights of access to apparatus in streets which have been permanently stopped up under the powers of the Bill, but this protection is subject to the nominated undertaker's rights to require the removal of that apparatus or to alter it.
343. The nominated undertaker is required to give notice of the proposed stopping up and the operator has a right, and where reasonably requested by the nominated undertaker, an obligation, to move its apparatus. There is provision for the undertaker to recover its costs but sub-paragraph (8) provides that the provisions of this part dealing with the recovery of costs for relocation works are not to apply where the relocation is required as a result of works which are major transport works or major highway works for the purpose of Part 3 of the New Roads and Street Works Act 1991. In such a case the cost sharing regime provided for under that Act will govern recovery of costs and consequently the amount recoverable will be discounted by such amount as is prescribed from time to time under the cost-sharing regulations made under section 85 of that Act (the amount is currently 18% or 7.5% depending on the nature of the works).
344. Paragraph 5 provides an indemnity for operators in respect of damage to apparatus or interruptions to the supply of its services caused by the construction of the authorised works (or by subsidence resulting from those works). This does not apply to apparatus governed by Part 3 of the New Roads and Street Works Act (ie works in streets).
345. Paragraph 6 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of clause 56 of the Bill). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the Secretary of State who must have regard to any matters specified by the Secretary of State on making the appointment. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for the Secretary of State to be involved in the resolution of such disputes.
|© Parliamentary copyright 2006||Prepared: 16 November 2006|