House of Commons portcullis
House of Commons
Session 2007 - 08
Internet Publications
Other Bills before Parliament

Crossrail Bill


Crossrail Bill
Schedule 16 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers

222

 

interference with any proposed works of the nominated undertaker

or the use of the same, and

(b)   

so far as it may be reasonable and practicable to do so in the

circumstances of the case, give effect to the terms and conditions (if

any) applicable to the apparatus for which the alternative apparatus

5

is to be substituted and have regard to the undertakers' ability to

fulfil their service obligations.

      (3)  

If the facilities and rights to be afforded by the nominated undertaker or the

Secretary of State in respect of any alternative apparatus, and the terms and

conditions subject to which those facilities and rights are to be granted are,

10

in the opinion of a person making a determination under paragraph 13,

more or less favourable on the whole to the undertakers than the facilities,

rights, terms and conditions applying to the apparatus to be removed, that

person shall make such provision for the payment of compensation to or by

the nominated undertaker or the Secretary of State to or by the undertakers

15

in respect of the difference as appears to him to be reasonable having regard

to all the circumstances of the case.

8     (1)  

Not less than 28 days before commencing to construct any work authorised

by this Act which is near to, or will or may affect, any apparatus the removal

of which has not been required by the nominated undertaker under

20

paragraph 3, the nominated undertaker shall submit to the undertakers a

plan and description of the work and of any protective measures which the

nominated undertaker proposes to take in respect of that apparatus,

together with a specification of such measures where appropriate.

      (2)  

The work shall be constructed only in accordance with the plan and

25

description submitted as aforesaid and in accordance with such reasonable

requirements as may be made by the undertakers for the alteration or

otherwise for the protection of the apparatus or for securing access thereto,

and the undertakers shall be entitled by their officer to watch and inspect the

construction of the work.

30

      (3)  

If the undertakers within 14 days after the submission to them of any such

plan and description shall, in consequence of the works proposed by the

nominated undertaker, reasonably require the removal of any apparatus

and give written notice to the nominated undertaker of that requirement,

this Part shall have effect as if the removal of such apparatus had been

35

required by the nominated undertaker under paragraph 3.

      (4)  

Nothing in sub-paragraphs (1) to (3) shall preclude the nominated

undertaker from submitting at any time, or from time to time, but in no case

less than 28 days before commencing the construction of the work, a new

plan and description of it in lieu of the plan and description previously

40

submitted, and thereupon the provisions of those sub-paragraphs shall

apply to and in respect of the new plan and description.

      (5)  

The nominated undertaker shall not be required to comply with sub-

paragraphs (1) to (3) in a case of emergency but in such a case it shall give

notice to the undertakers as soon as reasonably practicable and a plan and

45

description of those works as soon as reasonably practicable thereafter, and

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

50

 

 

Crossrail Bill
Schedule 16 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers

223

 

reasonably practicable, provide alternative means of access to such

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 2 as not to obstruct

5

or render less convenient the access to any apparatus.

      (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

10

the time of the stopping up or diversion was in that highway.

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

15

shall affect any right of the nominated undertaker or of the undertakers to

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

20

by the undertakers in, or in connection with—

(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

25

consequence of the exercise by the nominated undertaker of any

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.

30

      (2)  

There shall be deducted from any sum payable under sub-paragraph (1) the

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

35

dimensions is placed in substitution for existing apparatus of worse

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

40

apparatus was situated,

           

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

45

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

 

 

Crossrail Bill
Schedule 16 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers

224

 

undertakers by virtue of sub-paragraph (1) shall be reduced by the amount

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

5

greater dimensions than those of the existing apparatus except in a

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

10

be necessary, the consequential provision of a jointing chamber or of

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

15

works include the placing of apparatus provided in substitution for

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.

20

      (6)  

In any case where work is carried out by the nominated undertaker

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

25

the amount of that reduction.

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

30

removal for the purposes of those works) or property of the undertakers, or

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—

35

(a)   

make reasonable compensation to the undertakers for loss sustained

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,

40

           

by reason of any such damage or interruption.

      (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.

45

      (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

 

 

Crossrail Bill
Schedule 16 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries

225

 

of any settlement or compromise or of any proceedings necessary to resist

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

5

(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.

      (2)  

Any person appointed by the appropriate Ministers under sub-paragraph

(1) shall, in determining any dispute arising under this Part, have regard to

10

such matters as may be specified by the appropriate Ministers on making the

appointment.

      (3)  

In this paragraph “the appropriate Ministers” means the Secretary of State

for Transport acting jointly with either the Secretary of State for

Environment, Food and Rural Affairs or the Secretary of State for Business,

15

Enterprise and Regulatory Reform.

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

or operation 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 16 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries

226

 

(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;

           

and reference to protection of or damage to a drainage work includes

reference to the protection of or damage to the drainage work as a natural

resource or in respect of the effects of that drainage work on the

10

environment.

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

plans reasonably require.

15

      (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—

(a)   

shall not be unreasonably withheld;

20

(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 or where

further particulars are submitted under paragraph 2(1), within 28

days of the submission of those particulars; and

(c)   

may be given subject to such reasonable requirements as the Agency

25

may make for the protection of any drainage work or fishery or for

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

30

construct such protective works (including any new works as well as

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,

35

           

during the construction of the specified work.

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

40

the construction of such works.

      (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.

45

      (3)  

If any part of the works comprising a structure in, over or under a

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

 

 

Crossrail Bill
Schedule 16 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries

227

 

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

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.

5

      (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

10

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

15

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

20

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

25

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

30

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

35

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)

40

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

45

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

 

 

Crossrail Bill
Schedule 16 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries

228

 

former standard of efficiency or where necessary to construct some other

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

5

undertaker, the nominated undertaker has failed to begin taking steps to

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

10

undertaker.

      (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.

15

7     (1)  

The nominated undertaker shall take all such measures as may be

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

20

(b)   

the failure of any such work,

           

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

25

against such damage.

      (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

30

recover from the nominated undertaker the expense reasonably incurred by

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

35

recover from the nominated undertaker the reasonable cost of so doing

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,

40

demands, proceedings or damages, which may be made or taken against, or

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,

45

(c)   

any raising or lowering of the water table in land adjoining the works

authorised by this Act or any sewers, drains and watercourses, or

(d)   

any flooding or increased flooding of any such lands,

 

 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2007
Revised 9 November 2007