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Clause 40: Duty to co-operate

140.     Clause 40(1) provides a mechanism for the nominated undertaker to require others to co-operate with him during the construction, maintenance and operation of Crossrail, by entering into an agreement to deal with a problem relating to a railway asset. This provision reflects the fact that Crossrail will interact with the existing railways, both overland and underground.

141.     Clause 40(2) provides a reciprocal mechanism for the benefit of any controller of a railway asset (most likely an owner or operator of track) affected by the construction, maintenance or operation of Crossrail.

142.     Clause 40(3) provides for the terms of any such agreements to be agreed between the parties, or else referred to arbitration (for which arbitration clause 41 makes provision).

Clause 41: Arbitration after referral under section 40(3)

143.     Clause 41 sets out a mechanism for the arbitration of any disputes under clause 40(3).

144.     Clause 41(3) allows the Secretary of State, who is required to be notified that a dispute has been referred to arbitration, to direct the arbitrator as to the results that are to be achieved, so far as reasonably practicable, by the agreement to be determined under the arbitration. In doing so the Secretary of State is confining the arbitrator's jurisdiction.

145.     Clause 41(6) clarifies what the arbitrator must do: clause 41(7) clarifies how he must carry out his functions.

Clause 42: Arbitration under section 40(3): multiple proceedings

146.     Clause 42 sets out the arrangements to apply in the case of multiple arbitrations under clause 40, allowing those proceedings to be consolidated or held concurrently.

147.     Clause 42(2) means that any group of hearings to be consolidated must consist of section 40(3) proceedings and arbitral proceedings relating to one or more such set of proceedings.

Clause 43: Transfer of functions relating to works

148.     Clause 43(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.

149.     Clause 43(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.

150.     Clause 43(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 44: Application of section 122 of the Railways Act 1993

151.     Clause 44 is designed to make the defence of statutory authority that is available under section 122 of the Railways Act 1993, 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 22. 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 45: Application of other railway legislation

152.     Clause 45 brings into effect Schedule 11, which contains provisions dealing with the application of railway legislation to Crossrail.

Miscellaneous and general

Clause 46: Transfer schemes

153.     Clause 46 brings into effect Schedule 12, which sets out the power of the Secretary of State to make schemes to transfer property, rights and liabilities.

Clause 47: Holder of functions of nominated undertaker

154.     Clause 47(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.

155.     Clause 47(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.

156.     Clause 47(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.

157.     Clause 47(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.

158.     Clause 47(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.

159.     Clause 47(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 48: Disapplication and modification of miscellaneous controls

160.     Clause 48 brings into effect Schedule 13, which contains provisions dealing with the disapplication and modification of miscellaneous controls in relation to Crossrail.

Clause 49: Burial grounds

161.     Clause 49(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).

162.     Clause 49(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 14. Schedule 14 therefore sets out the regime that applies in order to ensure that any such remains and monuments are dealt with in an appropriate manner.

163.     Clause 49(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 50: Application of landlord and tenant law

164.     Clause 50 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 51: Disposal of Crown land

165.     Clause 51 provides for additional flexibility as to the terms of agreements about land acquisition and use to be entered into with each of the Royal Parks Agency and the Crown Estate Commissioners. Each body has responsibilities for the management of land vesting in the Crown, and the functions of each are governed by statute.

166.     Clause 51(1) and (2) would allow the Secretary of State (the legal personality of the Royal Parks Agency) to grant leases and rights of way over the Royal Parks without statutory constraint as to their duration or financial terms.

167.     Clause 51(3) similarly gives greater flexibility to the Crown Estate Commissioners in their dealings with land by disapplying relevant statutory constraints.

Clause 52: Prohibition or restrictions on land use imposed for Crossrail purposes

168.     Clause 52 enables covenants between the Secretary of State and persons with an interest in land to bind successors in title to such interests even though they are not direct parties to the original covenant. In order for covenants concerning land to be enforceable against successors in title to such land, the person claiming the benefit should usually have a neighbouring interest in land. The Secretary of State will not have such an interest until the compulsory purchase powers of the Bill are exercised, and so in order to allow such covenants to be entered into before then, this clause dispenses with the requirement of a neighbouring interest in land.

169.     Clause 52(3) has the effect of enabling such covenants to be categorised as local land charges. If registered as such, a future acquirer should become aware of the prohibitions or restrictions concerned.

Clause 53: Compensation for injurious affection

170.     Clause 53 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". 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 54: Compensation for water abstraction

171.     Clause 54(1) disapplies provisions of the Water Resources Act 1991 which otherwise would impose an absolute prohibition on abstracting water if this causes loss or damage to another person. Such a restriction could prevent or delay Crossrail works being constructed.

172.     Clause 54(2) provides that where water abstraction has caused loss or damage, the person suffering loss or damage must be compensated. The overall effect of clause 54 is that the duty to avoid damage by water abstraction creates the possibility of compensation for damage but not the possibility of a court injunction. The practical protection for property owners arises from the requirement that the Environment Agency pre-approve abstraction, for which see Part 3 of Schedule 16.

Clause 55: Temporary possession agreements

173.     Clause 55 makes special provision in respect of certain agreements reached between the Secretary of State and landowners which are intended to reduce the power to acquire land outright to a power only to take temporary possession, or make temporary use, of land. Clause 55(1) achieves this by providing, where it is agreed, that land shall be treated as if it were subject to the temporary (as opposed to permanent) acquisition regime set out in Schedule 5.

174.     Clause 55(3) to (9) make related provision, including allowing the effect of the temporary possessions regime to be modified by agreement between the landowner and the Secretary of State.

175.     Clause 55(10) provides that any such agreement shall be a local land charge, meaning that it should come to the attention of any intending purchaser of the land concerned.

Clause 56: Application of Act to extensions

176.     Clause 56 permits any Transport and Works Act ("TWA") 1992 order which relates to a proposed extension of Crossrail, or to the provision of a facility connected with 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 57: Reinstatement of discontinued facilities

177.     Clause 57 brings into effect Schedule 15, which contains provision concerning the reinstatement of facilities which have been discontinued as a consequence of Crossrail construction, and for planning conditions to be imposed in relation to such development.

Clause 58: Protection of interests

178.     Clause 58 brings into effect Schedule 16, which contains provisions setting out the protections to be provided for various bodies affected by the works.

Clause 59: Power to devolve functions of Secretary of State

179.     Clause 59(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.

180.     Clause 59(2) allows the Secretary of State to fetter his discretion under subsection (1) by agreement with the Mayor of London or Transport for London.

181.     Clause 59(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.

182.     Clause 59(7) 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 60: Correction of deposited plans

183.     Clause 60 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 was deposited with the Crossrail Bill when first introduced and which was updated during the passage of the Crossrail Bill in previous Parliamentary sessions) that accompanies the Bill may be corrected. These provisions are normal in Hybrid Bills and local Acts.

Clause 61: Service of documents

184.     Clause 61 sets out how a document may be served on any person, where that is required or authorised under the Bill.

Clause 62: Arbitration

185.     Clause 62 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.

186.     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.

187.     The clause also allows the Secretary of State for Transport, and the Secretary of State for Communities and Local Government, acting jointly, to issue procedural rules governing arbitration.

Clause 63: "Deposited plans", "deposited sections"

188.     Clause 63 defines and identifies those plans and sections, as updated during earlier consideration of the Crossrail Bill, which establish the location and nature of Crossrail works.

COMMENTARY ON SCHEDULES

Schedule 1 - Scheduled works

189.     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

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

191.     Paragraph 2 allows the nominated undertaker to provide highway accesses, whether permanent or temporary, at the points marked on the deposited plans (save where the highway authority objects on the specific grounds provided). Such access may be similarly provided with the consent of the highway authority, such 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.

192.     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.

193.     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.

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

195.     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.

196.     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.

197.     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

198.     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.

199.     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.

200.     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.

201.     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.

202.     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, or within 42 days in respect of certain important roads. 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.

203.     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.

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

205.     Paragraph 8 deems certain highway works carried out under the Bill to be major transport 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.

206.     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.

207.     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.

208.     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.

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

210.     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.

211.     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.

 
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Prepared: 9 November 2007