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Crossrail Bill


Crossrail Bill
Schedule 17 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers

238

 

6     (1)  

If the nominated undertaker gives notice in writing to the undertakers that

it desires to carry out any part of so much of the work necessary in

connection with the construction of the alternative apparatus, or the removal

of the apparatus required to be removed, as is or will be situate in any lands

held or used, or intended for use, by the nominated undertaker for the

5

purposes of its undertaking under this Act or held by the Secretary of State,

such work, instead of being carried out by the undertakers, shall be carried

out by the nominated undertaker in accordance with plans and

specifications and in a position agreed between the undertakers and the

nominated undertaker, or, in default of agreement, determined in

10

accordance with paragraph 13, with all reasonable despatch under the

superintendence (if given) and to the reasonable satisfaction of the

undertakers.

      (2)  

Nothing in this paragraph shall authorise the nominated undertaker to carry

out any connection to or disconnection of any existing apparatus or to carry

15

out any works associated with a connection or disconnection within 600

millimetres of the point of connection or disconnection.

7     (1)  

Where, in accordance with the provisions of this Part, the nominated

undertaker or the Secretary of State affords to the undertakers facilities and

rights for the construction, maintenance, repair, renewal and inspection on

20

land held or used, or intended for use, by the nominated undertaker for the

purposes of its undertaking under this Act or held by the Secretary of State

of alternative apparatus, those facilities and rights shall be granted upon

such terms and conditions as may be agreed between the nominated

undertaker or, as the case may be, the Secretary of State, and the undertakers

25

or, in default of agreement, determined in accordance with paragraph 13.

      (2)  

In determining such terms and conditions as aforesaid in respect of

alternative apparatus to be constructed across or along any works

authorised by this Act, a person making a determination under paragraph

13 shall—

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(a)   

give effect to all reasonable requirements of the nominated

undertaker for ensuring the safety and efficient operation of those

works and for securing any subsequent alterations or adaptations of

the alternative apparatus which may be required to prevent

interference with any proposed works of the nominated undertaker

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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

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

40

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,

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

45

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

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

50

to all the circumstances of the case.

 

 

Crossrail Bill
Schedule 17 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers

239

 

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

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

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

5

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

description submitted as aforesaid and in accordance with such reasonable

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

10

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.

      (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

15

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

required by the nominated undertaker under paragraph 3.

      (4)  

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

20

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

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

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

25

      (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

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

shall comply with those sub-paragraphs so far as reasonably practicable in

30

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

reasonably practicable, provide alternative means of access to such

apparatus which is no less convenient than the access enjoyed by the

35

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

or render less convenient the access to any apparatus.

      (3)  

Notwithstanding the temporary stopping up or diversion of any highway

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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

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

45

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

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

 

 

Crossrail Bill
Schedule 17 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers

240

 

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

by the undertakers in, or in connection with—

5

(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

consequence of the exercise by the nominated undertaker of any

10

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.

      (2)  

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

15

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

dimensions is placed in substitution for existing apparatus of worse

20

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

apparatus was situated,

25

           

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

the construction of works under paragraph 6 exceeding that which would

30

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

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

of that excess.

35

      (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

greater dimensions than those of the existing apparatus except in a

case where the apparatus as so extended serves a purpose (either

40

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

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

45

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

works include the placing of apparatus provided in substitution for

apparatus placed more than 7½ years earlier so as to confer on the

50

 

 

Crossrail Bill
Schedule 17 — Protective provisions
Part 2 — Protection for electricity, gas, water and sewerage undertakers

241

 

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.

      (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

5

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

the amount of that reduction.

12    (1)  

Subject to sub-paragraphs (2) and (3), if by reason of the construction of any

10

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

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

15

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—

(a)   

make reasonable compensation to the undertakers for loss sustained

by them, and

20

(b)   

indemnify the undertakers against claims, demands, proceedings,

and damages which may be made or taken against, or recovered

from the undertakers,

           

by reason of any such damage or interruption.

      (2)  

Nothing in sub-paragraph (1) shall impose any liability on the nominated

25

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.

      (3)  

The undertakers shall give the nominated undertaker reasonable notice of

any such claim or demand and no settlement or compromise of any such

30

claim 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 or demand.

13    (1)  

Any dispute arising between the nominated undertaker and the undertakers

35

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,

           

but shall otherwise by determined by a person appointed by the appropriate

Ministers.

40

      (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

appointment.

      (3)  

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

45

for Transport acting jointly with either the Secretary of State for

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

Enterprise and Regulatory Reform.

 

 

Crossrail Bill
Schedule 17 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries

242

 

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.

      (2)  

In this Part—

5

"the Agency" means the Environment Agency;

"construction" includes execution, placing, altering, replacing, relaying

and removal;

"drainage work" means any watercourse and any bank, wall,

embankment or other structure, or any appliance, constructed or

10

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—

(a)   

in the case of areas providing fluvial flood storage, once in

15

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

or from such waters and the spawn, spawning grounds or food of

20

such fish;

"plans" includes sections, drawings, specifications and method

statements;

"specified work" means so much of any permanent or temporary work

or operation authorised by this Act (which includes, for the

25

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;

(b)   

affect the flow, purity or quality of water in any watercourse

30

or other surface waters or ground water;

(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

35

"watercourse" includes all rivers, streams, ditches, drains, cuts,

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

40

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

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

45

plans reasonably require.

      (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.

 

 

Crossrail Bill
Schedule 17 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries

243

 

      (3)  

Any approval of the Agency required under this paragraph—

(a)   

shall not be unreasonably withheld;

(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

5

days of the submission of those particulars; and

(c)   

may be given subject to such reasonable requirements as the Agency

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.

10

3          

The requirements which the Agency may make under paragraph 2 include

conditions requiring the nominated undertaker at its own expense to

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

15

(b)   

to secure that its efficiency for flood defence purposes is not

impaired,

           

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

20

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

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

25

work and notice in writing of its completion not later than 7 days after the

date on which it is brought into use.

      (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

30

nominated undertaker at the nominated undertaker's own expense to

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

35

and within such limits as the Agency reasonably requires.

      (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

40

expeditious progress towards their implementation, the Agency may

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

45

applicable to any work in respect of which notice has been served under that

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.

50

 

 

Crossrail Bill
Schedule 17 — Protective provisions
Part 3 — Protection of land drainage, flood defence, water resources and fisheries

244

 

5     (1)  

Any work constructed under this Act for the purpose of providing a flood

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

5

and restore the work, or any part of it, or (if the person having control of the

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.

10

      (3)  

If, within a reasonable period being not less than 28 days beginning with the

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

15

implementation, the Agency may do what is necessary for such compliance

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

20

of immediate foreseeable need exercise the powers of sub-paragraph (3)

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

25

action, such impairment or damage shall be made good by the nominated

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

30

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

35

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

40

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.

45

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—

 

 

 
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