|
| |
| |
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 |
| |
| |
(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 |
| |
| 30 |
(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 |
| 35 |
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. |
| |
| |
| |
|
| |
| |
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 |
| |
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 |
| 40 |
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 |
| |
| |
| |
|
| |
| |
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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 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 |
| |
| 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 |
| |
(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 |
| |
| |
|
| |
| |
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 |
| |
| 20 |
(b) | indemnify the undertakers against claims, demands, proceedings, |
| |
and damages which may be made or taken against, or recovered |
| |
| |
| 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 |
| |
| |
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 |
| |
| 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 |
| |
| |
(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. |
| |
| |
| |
|
| |
| |
| |
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. |
| |
| 5 |
"the Agency" means the Environment Agency; |
| |
"construction" includes execution, placing, altering, replacing, relaying |
| |
| |
"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 |
| |
| |
(a) | in the case of areas providing fluvial flood storage, once in |
| 15 |
| |
(b) | in the case of areas providing tidal or coastal flood storage, |
| |
| |
"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 |
| |
"plans" includes sections, drawings, specifications and method |
| |
| |
"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 |
| |
| |
(d) | affect the conservation, distribution or use of water |
| |
| 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 |
| |
| |
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 |
| |
| |
| |
| |
|
| |
| |
(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 |
| |
| 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 |
| |
| |
| 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 |
| |
| |
(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 |
| |
| 50 |
| |
| |
|
| |
| |
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 |
| |
| |
(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 |
| |
(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. |
| |
| |
| |
| |
|
