Part 4 - Protection of electronic communications code networks

360.     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.

361.     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, (i.e. 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.

362.     The protection conferred by this Part applies to any works authorised by the Bill ("the authorised works").

363.     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).

364.     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 (i.e. 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.

365.     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.

366.     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.

367.     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).

368.     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 1991 (i.e. works in streets).

369.     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 62 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 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 Ministers to be involved in the resolution of such disputes.

Part 5 - Protection of British Waterways Board

370.     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 British Waterways Board ("the Board") agree to vary them. The Board is a public corporation established under the Transport Act 1962 which owns and manages a network of waterways, comprising canal and river navigations, reservoirs and docks. A number of its waterways may be affected by the powers of the Bill, including in particular, the river Lea, the Grand Union and Regents Canals and the West India Dock. These arrangements apply to "canals" which means any canal or waterway owned or managed by the Board, including land held or used for the canal (such as towing paths). The nominated undertaker's works to which the provisions apply are any "specified works" defined as works in, across, under or within 15 metres of, or which may affect, any canal.

371.     Paragraph 2 makes clear that in relation to land of the Board, the compulsory powers of the Secretary of State to acquire land will be limited to "what is reasonably necessary for, or in connection with, the construction, maintenance or operation of the works" authorised by the Bill.

372.     Paragraph 3 provides for the Board to approve plans of the specified works and in approving plans to be able to make reasonable requirements in relation to its canals. Such approval is not to be unreasonably withheld.

373.     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 Board's reasonable satisfaction and with minimum disruption to traffic on the canals, for the Board to have advance notice of commencement of construction and the right to inspect the construction work.

374.     Paragraphs 5 and 6 deal with deposits of materials on, in or over canals and discharge of water into canals. These operations will require the Board's consent (which is not to be unreasonably withheld). The exercise of the powers of paragraph 8 of Schedule 2 to the Bill to discharge water into watercourses is made subject, in relation to canals, to the terms of any consent given under these provisions.

375.     Paragraph 7 provides protection for access to or along towing paths. If this is temporarily obstructed and there is no alternative means of access, the nominated undertaker is required (so far as is reasonably practicable) to provide a substitute. These requirements are in addition to the obligation in paragraph 5(2) and (5) of Schedule 3 to ensure reasonable pedestrian access to premises adjoining a highway which has been temporarily stopped up and to obtain the consent of the highway authority for such closures.

376.     Paragraph 8 contains provision empowering the Board to give the nominated undertaker notice to act in circumstances where canal work is abandoned or is in such a condition that it does or may constitute a danger or interference with navigation. The Board may carry out remedial works at the nominated undertaker's expense in the event of default by the nominated undertaker.

377.     Paragraph 9 contains a general indemnity for the Board in respect of claims against it arising from damage to canals covered by the works and for the costs of making good such damage.

378.     Paragraph 11 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 62 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 6 - Protection of Port of London Authority

379.     Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker and the Port of London Authority ("the PLA") agree to vary them. The PLA is the statutory harbour authority for the Port of London under the Port of London Act 1968. The nominated undertaker's works to which the provisions apply are any "specified works" defined as works on, in, under or over the surface of land below the river (defined as the level of mean high water springs forming part of waters within the PLA's jurisdiction) or any land owned, occupied or used by the PLA for operational purposes.

380.     Paragraph 2 provides for the PLA to approve plans of the specified works, and in approving the plans to be able to make reasonable requirements in relation to the protection of the river or the use of its operational land for the purpose of performing its statutory functions. PLA's approval is not to be unreasonably withheld, and the paragraph also makes clear that the requirement for approval of plans does not reintroduce the controls under Part 5 of the Port of London Act 1968 (relating to works and dredging in the Thames) which are disapplied by Schedule 13 to the Bill.

381.     Paragraph 3 deals with the construction of the specified works. It provides in particular for these to be constructed with all reasonable dispatch and to the PLA's reasonable satisfaction and with minimum interference to navigation in the river and the PLA's statutory functions. The PLA is entitled, on notice to the nominated undertaker, to inspect and survey the construction of the specified works.

382.     Paragraph 4 deals with the deposit of gravel, soil or other material into the river, including allowing any such material to fall, or be washed into the river. Any such deposit will require the PLA's consent (which is not to be unreasonably withheld). The exercise of the powers of paragraph 8 of Schedule 2 to the Bill to discharge water into watercourses is made subject, in relation to the river, to the terms of any consent given under these provisions. This paragraph also spells out that it is not to be taken as authorising anything which would be an offence under the legislation dealing with the pollution of water.

383.     Paragraphs 5, 6 and 7 contain miscellaneous protection in relation to construction of the specified works including requirements for removing obstructions to navigation which are exposed in the course of the works, provision for reimbursement of costs incurred by the PLA in addressing impacts on existing moorings and a requirement to provide lights or buoys or take other steps as may be required by the PLA for the prevention of danger to navigation.

384.     Paragraph 8 is intended to secure navigational safety in a case where a specified work is abandoned or falls into disrepair. The PLA is entitled to require the nominated undertaker to remove the work, or repair it, and restore the site to its former condition.

385.     Paragraph 9 applies the prohibition in paragraph 8(4) of Schedule 2 against the damage of the bed or banks of watercourses forming parts of a main river to any discharge of any water in connection with a specified work and affecting part of the river that is not a main river.

386.     Paragraph 10 provides that the powers under the Bill to navigate or moor barges, vessels or craft are subject to such directions as the PLA's harbour master may make.

387.     Paragraphs 11 and 12 make provision for the indemnity of the PLA, by the nominated undertaker, for damage caused to the bed or banks of the river. This liability is limited where the damage is attributable to the PLA.

388.     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 62 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.

PUBLIC SECTOR FINANCIAL COST AND PUBLIC SECTOR MANPOWER IMPLICATIONS

389.     It is proposed that Crossrail construction will be funded from different sources; specifically, by the Government, via a grant from the Department for Transport of over £5 billion across the construction period, by Crossrail fare payers, by Transport for London, and by London business. The Mayor has indicated that, subject to enactment of the necessary legislation, he would propose to levy a supplementary business rate in London from April 2010. In addition, further contributions will be sought from certain businesses and developers directly benefiting from the project.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

390.     The Regulatory Impact Assessment demonstrates that the costs to business and the regulatory impact of the Bill will be low (consideration of, for example, any associated business rates supplement will take place in the context of the relevant legislation and any consequent proposal). Where impacts are expected to occur, they will be mitigated by appropriate measures and compensation.

391.     The full RIA can be obtained from Graham Stockbridge, Zone 2/19, Department for Transport, Great Minster House, 76 Marsham Street, London SW1P 4DR, or from graham.stockbridge@dft.gsi.gov.uk.

EUROPEAN CONVENTION ON HUMAN RIGHTS

392.     The Secretary of State has made a statement that in her view the Crossrail Bill is compatible with the Convention Rights. The following rights are considered to be particularly engaged in relation to the Bill, although careful consideration has been given to all aspects of human rights in relation to these proposals.

393.     As a Hybrid Bill, the Bill necessarily involves interference with the property rights and, potentially, the home and other rights of individuals. The potential for such effects particularly engages Article 1 of Protocol 1 (the right to peaceful enjoyment of possessions), article 8 (the right to respect for private and family life) and, to the extent that any places of assembly or used for religious purposes are affected, article 9 (the right to freedom of thought, conscience and religion). Mitigation of the impact of such interference is provided by the compensation arrangements provided both under the Bill and also by a range of policies that the Secretary of State is adopting in relation to the scheme, including policies relating to hardship, land acquisition, business relocation and to noise and vibration impacts of the scheme. Taking into account the public and other benefits that will arise from the Crossrail development and the mitigation provided by the arrangements that have been provided, the Secretary of State is of the view that a fair balance has been struck and that any remaining impact on property and other rights is proportionate and can be and, in all the circumstances, is justified in this case.

394.     The Bill contains provisions that provide for the determination of disputes by arbitration and, in some cases, permitting the Secretary of State to give directions in relation to matters under consideration. In the light of the applicability of standard procedures for arbitration and the availability of judicial review in relation to any decisions of the Secretary of State (or the Greater London Authority or Transport for London, should control of the project be devolved) the Secretary of State is of the view that the Bill is compliant with the requirements of Article 6 (the right to a fair trial).

TERRITORIAL EXTENT

395.     The Bill, like the Channel Tunnel Rail Link Act 1996 (and other Hybrid Bills), does not expressly limit the Bill's territorial extent. The land and works provisions are by nature local. The provisions under the heading "Railway matters", on the other hand, relate to matters which are the subject of a common regime under the law of England and Wales and Scotland and will extend accordingly.

396.     Because the Sewel Convention provides that Westminster does not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.

COMMENCEMENT

397.     The provisions of the Bill will come into force on Royal Assent.