|
| |
| |
| 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. |
| |
(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 |
| 5 |
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 the claim |
| |
| |
9 | Nothing in paragraph 8 shall require the nominated undertaker to |
| 10 |
indemnify the Agency in respect of any claim, demand, proceedings or |
| |
damages which the Agency could reasonably make, take against or recover |
| |
| |
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 |
| 15 |
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, |
| |
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 |
| 20 |
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 |
| |
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 |
| 25 |
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 |
| |
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 |
| 30 |
similar works in respect of which a licence is not required). |
| |
12 (1) | Any dispute arising between the nominated undertaker and the Agency |
| |
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, |
| 35 |
| but shall otherwise by determined by a person appointed by the appropriate |
| |
| |
(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 |
| 40 |
| |
(3) | In this paragraph the reference to the appropriate Ministers is to the |
| |
Secretary of State for Transport and the Secretary of State for Environment, |
| |
Food and Rural Affairs acting jointly. |
| |
| |
| |
|
| |
| |
| |
Protection of electronic communications code networks |
| |
1 (1) | The following provisions of this Part shall, unless otherwise agreed in |
| |
writing between the nominated undertaker and an operator of an electronic |
| |
communications code network, have effect. |
| 5 |
| |
"the authorised works" means the works authorised by this Act; |
| |
"construction" includes installation and "construct" shall be construed |
| |
| |
"electronic communications code" means the electronic |
| 10 |
communications code contained in Schedule 2 to the |
| |
Telecommunications Act 1984 (c. 12); and |
| |
"operator", "electronic communications apparatus", and ”electronic |
| |
communications code network” have the meanings given by |
| |
paragraph 17(1) of Schedule 17 to the Communications Act 2003 |
| 15 |
| |
2 (1) | Subject to sub-paragraph (2), paragraph 23 of the electronic communications |
| |
code shall apply for the purposes of the authorised works. |
| |
(2) | Paragraphs 21 and 23 of the electronic communications code shall not apply |
| |
for the purposes of the authorised works, |
| 20 |
(a) | insofar as such works are regulated by the New Roads and Street |
| |
Works Act 1991 (c. 22) or any regulation made under that Act; |
| |
(b) | where the nominated undertaker exercises a right under subsection |
| |
(4)(b) of section 272 of the Town and Country Planning Act 1990 (c. 8) |
| |
or under an order made under that section to remove electronic |
| 25 |
communications apparatus; or |
| |
(c) | in respect of any matter regulated by sub-paragraphs (3) to (8) of |
| |
| |
3 | The temporary stopping up or diversion of any highway under paragraph 5 |
| |
of Schedule 3 shall not affect any right of an operator under paragraph 9 of |
| 30 |
the electronic communications code in respect of any apparatus which at the |
| |
time of the stopping up or diversion is in the highway. |
| |
4 (1) | Where a highway is stopped up under paragraph 1 or 2 of Schedule 3, any |
| |
operator of an electronic communications code network whose electronic |
| |
communications apparatus is under, over, in, on, along or across that |
| 35 |
highway may exercise the same rights of access in order to inspect, maintain, |
| |
adjust, repair or alter that apparatus as if this Act had not been passed, but |
| |
nothing in this sub-paragraph shall affect any right of the nominated |
| |
undertaker or the operator to require removal of that apparatus under this |
| |
Part or the power of the nominated undertaker to alter apparatus in |
| 40 |
accordance with paragraph 23 of the electronic communications code. |
| |
(2) | The nominated undertaker shall give not less than 28 days' notice in writing |
| |
of its intention to stop up any highway under paragraph 1 or 2 of Schedule |
| |
3 to any operator of an electronic communications code network whose |
| |
apparatus is under, over, in, on, along or across the highway. |
| 45 |
(3) | Where a notice under sub-paragraph (2) has been given, the operator, if it |
| |
reasonably considers that it is necessary for the safe and efficient operation |
| |
| |
| |
|
| |
| |
and maintenance of the apparatus, may, and if reasonably requested so to do |
| |
by the nominated undertaker in the notice, shall, as soon as reasonably |
| |
practicable after the service of the notice— |
| |
(a) | remove the apparatus and place it or other apparatus provided in |
| |
substitution for it in such other position as the operator may |
| 5 |
reasonably determine and have power to place it, or |
| |
(b) | provide other apparatus in substitution for the existing apparatus |
| |
and place it in such other position as aforesaid. |
| |
(4) | Subject to the following provisions of this paragraph the nominated |
| |
undertaker shall pay to any operator of an electronic communications code |
| 10 |
network an amount equal to the cost reasonably incurred by the operator in |
| |
| |
(a) | the execution of relocation works required in consequence of the |
| |
stopping up of the highway, and |
| |
(b) | the doing of any other work or thing rendered necessary by the |
| 15 |
execution of relocation works. |
| |
(5) | If in the course of the execution of relocation works under sub-paragraph |
| |
| |
(a) | apparatus of better type, greater capacity or greater dimensions is |
| |
placed in substitution for existing apparatus of worse type, smaller |
| 20 |
capacity or smaller dimensions, except where this has been solely |
| |
due to using the nearest currently available type, capacity or |
| |
| |
(b) | apparatus (whether existing apparatus or apparatus substituted for |
| |
existing apparatus) is placed at a depth greater than the depth at |
| 25 |
which existing apparatus was, |
| |
| 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 consequence of the construction of the authorised works |
| 30 |
in order to ensure the continued efficient operation of the electronic |
| |
communications code network of the operator then, if it involves cost in the |
| |
execution of the relocation works 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 |
| 35 |
apart from this paragraph would be payable to the operator by virtue of sub- |
| |
paragraph (4) shall be reduced by the amount of that excess. |
| |
(6) | For the purposes of sub-paragraph (5)— |
| |
(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 |
| 40 |
greater dimensions than those of the existing apparatus except in a |
| |
case where the apparatus as so extended provides more than an |
| |
| |
(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 |
| 45 |
a manhole (in either case of such type, capacity and dimensions as |
| |
shall reasonably be appropriate) shall be treated as if it also had been |
| |
agreed or had been so determined. |
| |
(7) | The amount which apart from this sub-paragraph would be payable to an |
| |
operator in respect of works by virtue of sub-paragraph (4) (and having |
| 50 |
regard, where relevant, to sub-paragraph (5)) shall, if the works include the |
| |
| |
| |
|
| |
| |
placing of apparatus provided in substitution for apparatus placed more |
| |
than 7½ years earlier so as to confer on the operator any financial benefit by |
| |
deferment of the time for renewal of the apparatus in the ordinary course, be |
| |
reduced by the amount which represents that benefit. |
| |
(8) | Sub-paragraphs (4) to (7) shall not apply where the authorised works |
| 5 |
constitute major transport works or major highway works for the purpose of |
| |
Part 3 of the New Roads and Street Works Act 1991 (c. 22) (including that |
| |
provision as applied by paragraph 8 of Schedule 3 to this Act), but instead— |
| |
(a) | the allowable costs of any relocation works shall be determined in |
| |
accordance with section 85 of that Act (sharing of costs of necessary |
| 10 |
measures) and any regulations for the time being having effect under |
| |
| |
(b) | the allowable costs shall be borne by the nominated undertaker and |
| |
the operator in such proportions as may be prescribed by any such |
| |
| 15 |
5 (1) | Subject to sub-paragraphs (2) to (4), if by reason of the construction of the |
| |
authorised works or any subsidence resulting from any of those works, any |
| |
damage is caused to any electronic communications 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 |
| 20 |
operator of an electronic communications code network, or there is any |
| |
interruption in the supply of the service provided by the operator, the |
| |
nominated undertaker shall bear and pay the cost reasonably incurred by |
| |
the operator in making good such damage or restoring the supply and |
| |
| 25 |
(a) | make reasonable compensation to the operator for loss sustained by |
| |
| |
(b) | indemnify the operator against all claims, demands, proceedings, or |
| |
damages which may be made or taken against, or recovered from, |
| |
the operator, by reason of any such damage or interruption. |
| 30 |
(2) | Sub-paragraph (1) shall not apply to any apparatus in respect of which the |
| |
relations between the nominated undertaker and the operator are regulated |
| |
by the provisions of Part 3 of the New Roads and Street Works Act 1991. |
| |
(3) | 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 |
| 35 |
attributable to the act, neglect or default of the operator, its officers, servants, |
| |
| |
(4) | The operator 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 |
| 40 |
which, if it withholds such consent, shall have the sole conduct of any |
| |
settlement or compromise or of any proceedings necessary to resist the claim |
| |
| |
6 (1) | Any dispute arising between the nominated undertaker and an operator |
| |
under this Part shall be determined by arbitration if— |
| 45 |
(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 |
| |
| |
| |
| |
|
| |
| |
(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 |
| |
| |
(3) | In this paragraph the reference to the appropriate Ministers is a reference to |
| 5 |
the Secretary of State for Transport and the Secretary of State for Business, |
| |
Enterprise and Regulatory Reform acting jointly. |
| |
| |
Protection of British Waterways Board |
| |
1 (1) | The following provisions of this Part shall, unless otherwise agreed in |
| 10 |
writing between the nominated undertaker, or the Secretary of State as the |
| |
case may be, and the Board, have effect. |
| |
| |
“the Board” means the British Waterways Board; |
| |
“the canal” means any canal or waterway owned or managed by the |
| 15 |
Board, and includes any works connected therewith for the |
| |
maintenance of which the Board is responsible and any lands held or |
| |
used by the Board for the purposes of the canal; |
| |
“construction” includes execution, placing, altering, replacing and |
| |
relaying and includes removal; |
| 20 |
“plans” includes sections, drawings, specifications and method |
| |
| |
“specified work” means so much of any permanent or temporary work |
| |
authorised by this Act as is in, across, under, or within 15 metres of, |
| |
or may in any way affect, the canal. |
| 25 |
2 | The Secretary of State shall not under the powers of section 6 acquire |
| |
compulsorily any land of the Board or any easement or other right over such |
| |
land other than such land, or easements or other rights thereover, as is |
| |
reasonably necessary for, or in connection with, the construction, |
| |
maintenance or operation of works authorised by this Act. |
| 30 |
3 (1) | Before beginning to construct any specified work, the nominated undertaker |
| |
shall submit to the Board plans of the work and such further particulars |
| |
available to it as the Board may within 14 days of the submission of the plans |
| |
| |
(2) | Any specified work shall not be constructed except in accordance with such |
| 35 |
plans as may be approved in writing by the Board or determined under |
| |
| |
(3) | Any approval of the Board required under this paragraph shall not be |
| |
unreasonably withheld and— |
| |
(a) | shall be deemed to have been given if it is neither given nor refused |
| 40 |
(with an indication of the grounds for refusal) within 28 days of the |
| |
submission of the plans for approval or where further particulars are |
| |
submitted under paragraph 3(1), within 28 days of the submission of |
| |
| |
(b) | may be given subject to such reasonable requirements as the Board |
| 45 |
may make for the purpose of ensuring the safety or stability of the |
| |
| |
| |
|
| |
| |
canal, including requirements as to the construction of protective |
| |
| |
4 (1) | Any specified work, and any protective works required by the Board under |
| |
paragraph 3(3)(b), shall be constructed with all reasonable despatch to the |
| |
reasonable satisfaction of the Board, and in such manner as to cause as little |
| 5 |
damage to the canal as may be reasonably practicable and as little |
| |
interference as may be reasonably practicable with the passage of vessels |
| |
using the canal, and the Board 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 work or works. |
| 10 |
(2) | The nominated undertaker shall give to the Board not less than 28 days' |
| |
notice in writing of its intention to commence construction of any specified |
| |
work or any protective works and also, except in emergency (when the |
| |
nominated undertaker shall give such notice as may be reasonably |
| |
practicable), of its intention to carry out any works for the repair or |
| 15 |
maintenance of any specified work insofar as such works of repair or |
| |
maintenance affect or interfere with the canal. |
| |
5 (1) | The nominated undertaker shall not deposit any polluting material on, in or |
| |
over the canal and shall not without the consent of the Board— |
| |
(a) | deposit any other materials on, in or over the canal (other than |
| 20 |
materials comprised in a specified work); or |
| |
(b) | notwithstanding anything in this Act, discharge any water directly |
| |
or indirectly into the canal. |
| |
(2) | Any consent of the Board required under this paragraph shall not be |
| |
unreasonably withheld and— |
| 25 |
(a) | shall be deemed to have been given if it is neither given nor refused |
| |
within 28 days of the submission of the request for it; and |
| |
(b) | may be given subject to such reasonable requirements as the Board |
| |
| |
(i) | in the case of a deposit, so as to ensure that the use of the |
| 30 |
canal is not obstructed or rendered less safe, and |
| |
(ii) | in the case of a discharge, concerning the reimbursement by |
| |
the nominated undertaker of expenses incurred by the Board |
| |
in disposing of the water so discharged, being expenses |
| |
which the Board would not have incurred but for the |
| 35 |
| |
6 | In its application to the discharge of water into the canal, paragraph 8(5) of |
| |
Schedule 2 shall have effect subject to the terms of any conditions attached |
| |
to the consent under paragraph 5(2) above and, where such discharge |
| |
includes a deposit to which consent has been given under paragraph 5(1) |
| 40 |
above, to any conditions attached to that consent. |
| |
7 (1) | If as a result of the construction of any specified work any part of the towing |
| |
path or access way beside the canal, or any public right of way giving access |
| |
thereto, is temporarily closed to pedestrians or cyclists and there is no way |
| |
which provides a reasonable alternative, the nominated undertaker shall, so |
| 45 |
far as reasonably practicable and to the extent that it is consistent with safety, |
| |
provide a substitute path or paths for such time as the closure continues. |
| |
(2) | This paragraph is without prejudice to the requirements of paragraph 5(2) |
| |
| |
| |
| |
|
| |
| |
8 (1) | If any canal work is abandoned, the Board may by notice in writing require |
| |
the nominated undertaker to take such reasonable steps as may be specified |
| |
in the notice to remove the work and (to such extent as the Board reasonably |
| |
requires) to restore the site to its former condition. |
| |
(2) | If any canal work is in such condition that it is, or is likely to become, a |
| 5 |
danger to or to interfere with navigation, the Board may by notice in writing |
| |
require the nominated undertaker to take such reasonable steps as may be |
| |
| |
(a) | to repair and restore the work or part of it, or |
| |
(b) | if the nominated undertaker so elects, to remove the work and (to |
| 10 |
such extent as the Board reasonably requires) to restore the site to its |
| |
| |
| |
(a) | a work which consists of a canal work and a non-canal work is |
| |
abandoned or falls into decay; and |
| 15 |
(b) | the non-canal work is in such a condition as to interfere with the right |
| |
of navigation in the relevant canal or as to interfere with the rights of |
| |
access or use of land adjacent to the relevant canal; |
| |
| the Board may include the non-canal work, or any part of it, in any notice |
| |
| 20 |
(4) | If after such reasonable period as may be specified in a notice under this |
| |
paragraph the nominated undertaker has failed to begin taking steps to |
| |
comply with the requirements of the notice or after beginning has failed to |
| |
make reasonably expeditious progress towards their implementation, the |
| |
Board may carry out the works specified in the notice and any expenditure |
| 25 |
reasonably incurred by it in so doing shall be recoverable from the |
| |
| |
(5) | In this paragraph “canal work” means so much of any specified work or any |
| |
other work of which the nominated undertaker is in possession under the |
| |
powers of this Act as is in or over a canal owned or managed by the Board |
| 30 |
and “non-canal work” means so much of any such work as is not in or over |
| |
| |
9 (1) | The nominated undertaker shall indemnify the Board from all claims, |
| |
demands, proceedings or damages, which may be made or given against, or |
| |
recovered from the Board by reason of any damage to the canal which is |
| 35 |
caused by the construction of any specified work or protective work or any |
| |
act or omission of the nominated undertaker, its contractors, agents or |
| |
employees whilst engaged upon the work and from any costs reasonably |
| |
incurred in making good such damage. |
| |
(2) | The Board shall give to the nominated undertaker reasonable notice of any |
| 40 |
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 notifies the Board that it desires to do so, shall have the sole |
| |
conduct of any settlement or compromise or of any proceedings necessary to |
| |
resist the claim or demand. |
| 45 |
10 | Nothing in paragraph 9 shall impose any liability on the nominated |
| |
undertaker with respect to any damage to the extent that it is attributable to |
| |
the act, neglect or default of the Board, its officers, servants, contractors or |
| |
agents but 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 Board, |
| 50 |
| |
| |
|
