United Kingdom Statutory Instruments

(a) construct and maintain such offices and other buildings, yards, machinery, plant, apparatus and other works and conveniences as Network Rail thinks fit;

(b) make, provide and maintain all such approaches, bridges, subways, interchanges, roundabouts, turning places, lifts, stairs, escalators, ramps, passages, means of access, shafts and stagings as Network Rail thinks fit;

(c) make junctions and communications (including the provision of steps or ramps for the use of persons on foot) with any highway or access way intersected or interfered with by, or contiguous to, any of those works, and widen or alter any highway or access way for the purpose of connecting it with any of those works or another highway, or of crossing under or over the highway or access way;

(d) construct, provide and maintain all such embankments, aprons, abutments, retaining walls, wing walls, culverts and other works as may be necessary or convenient;

(e) alter or remove any structure erected upon any highway or adjoining land;

(f) alter the position of apparatus, including mains, sewers, drains and cables; and

(g) alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses.

    (2) Subject to paragraph (3), Network Rail may carry out and maintain such other works (of whatever nature) as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the authorised works.

    (3) Paragraphs (1) and (2) - 

(a) shall only authorise the carrying out or maintenance of works outside the limits of deviation for the scheduled works if the works are carried out on land specified in columns (1) and (2) of Parts I and II of Schedule 2 to this Order for the purpose specified in relation to that land in column (3) of those Parts of that Schedule; and

(b) shall not authorise the carrying out or maintenance of works to alter the course of, or otherwise interfere with, navigable rivers or watercourses.

    (4) Any power authorised by paragraph (1)(c) which affects a highway shall not be exercised without the written consent of the relevant highway authority, but such consent shall not be unreasonably withheld.

    (5) Network Rail may within the Order limits - 

(a) carry out and maintain landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised works; and

(b) carry out and maintain works for the benefit or protection of land affected by the authorised works.

(a) so much of the land shown on the deposited plans within the limits of deviation for the scheduled works shown on those plans and described in the book of reference as may be required for or in connection with the authorised works; and

(b) so much of the land specified in columns (1) and (2) of Parts I and II of Schedule 2 to this Order as may be required for the purpose specified in relation to that land in column (3) of those Parts of that Schedule,

and may use any land so acquired for those purposes or for any other purposes connected with or ancillary to its railway undertaking.

    (2) Network Rail shall not under the powers of this Order acquire compulsorily any interest in the lands delineated on the deposited plans and thereon numbered 10 in the borough of Dacorum.

    (3) Network Rail shall not under the powers of this Order acquire compulsorily any interest in the lands delineated on the deposited plans and thereon numbered 79b, 266b and 274b in the district of Lichfield except that Network Rail may enter upon and take temporary possession of the land in accordance with paragraph (4).

    (4) The provisions of article 30 shall apply in relation to the entering upon and taking possession of the lands mentioned in paragraph (3) as if - 

(a) the land numbered 79b were specified in columns (1) and (2) of Schedule 11 to this Order for the purpose of use as a working site and access in relation to Work Nos. 22, 24, 24A and 24B; and

(b) the lands numbered 266b and 274b were specified in columns (1) and (2) of Schedule 11 to this Order for the purpose of use as working sites and accesses in relation to Work No. 22.

(a) any interest in land, or

(b) any enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,

if the tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

    (2) In paragraph (1) "relevant land" means the land acquired from the person concerned or any other land with which he is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.

(a) a notice to treat is served on a person ("the owner") under the 1965 Act (as so applied) in respect of land forming only part of a house, building or factory or of land consisting of a house with a park or garden ("the land subject to the notice to treat"); and

(b) a copy of this article is served on the owner with the notice to treat.

    (2) In such a case, the owner may, within the period of 21 days beginning with the day on which the notice was served, serve on Network Rail a counter-notice objecting to the sale of the land subject to the notice to treat and stating that he is willing and able to sell the whole ("the land subject to the counter-notice").

    (3) If no such counter-notice is served within that period, the owner shall be required to sell the land subject to the notice to treat.

    (4) If such a counter-notice is served within that period, the question whether the owner shall be required to sell only the land subject to the notice to treat shall, unless Network Rail agrees to take the land subject to the counter-notice, be referred to the tribunal.

    (5) If on such a reference the tribunal determine that the land subject to the notice to treat can be taken - 

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the owner shall be required to sell the land subject to the notice to treat.

    (6) If on such a reference the tribunal determine that only part of the land subject to the notice to treat can be taken - 

(a) without material detriment to the remainder of the land subject to the counter-notice; or

(b) in the case of part of land consisting of a house with a park or garden, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house,

the notice to treat shall be deemed to be a notice to treat for that part.

    (7) If on such a reference the tribunal determine that - 

(a) the land subject to the notice to treat cannot be taken without material detriment to the remainder of the land subject to the counter-notice; but

(b) the material detriment is confined to a part of the land subject to the counter-notice,

the notice to treat shall be deemed to be a notice to treat for the land to which the material detriment is confined in addition to the land already subject to the notice, whether or not the additional land is land which Network Rail is authorised to acquire compulsorily under this Order.

    (8) If Network Rail agrees to take the land subject to the counter-notice, or if the tribunal determine that - 

(a) none of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without material detriment to the remainder of the land subject to the counter-notice and without seriously affecting the amenity and convenience of the house; and

(b) the material detriment is not confined to a part of the land subject to the counter-notice,

(a) the date on which this Order comes into force,

(b) the date on which the special category land is vested in Network Rail, or

(c) the date on which the exchange land is vested in Network Rail,

the exchange land shall vest in the district of Lichfield.

    (2) Upon the vesting of the exchange land in the district of Lichfield - 

(a) the special category land shall be discharged from all rights, trusts and incidents to which it was previously subject; and

(b) the exchange land shall be subject to the like rights, trusts and incidents as attached to the special category land.

    (3) In this article - 

"the special category land" means the land delineated on the deposited plans and thereon numbered 79a and 197b in the district of Lichfield; and

"the exchange land" means the land delineated on the deposited plans and thereon numbered 75b, 197c and 197d in the district of Lichfield.

Work No. 1 - A road, being a realignment of Banbury Lane, commencing in Banbury Lane at a point 180 metres south west of Banbury Lane level crossing and terminating in that road at a point 277 metres north east of that level crossing including the construction of bridges over the London to Birmingham Section and the Grand Union Canal.

Work No. 1A - A spur road, commencing in Banbury Lane at a point 40 metres south west of Banbury Lane level crossing and terminating by a junction with Work No. 1 at a point 64 metres south of that level crossing.

Work No. 1B - A spur road, commencing in Banbury Lane at a point 90 metres north east of Banbury Lane level crossing and terminating by a junction with Work No. 1 at a point 162 metres north east of that level crossing.

In the City of Coventry - 

Work No. 3 - A combined cycle/footbridge over the London to Birmingham Section at Canley Road level crossing commencing in the footway of Canley Road at point F1, 26 metres south west of that level crossing and extending over the railway and terminating in the footway of Canley Road at point F7, 29 metres north east of that level crossing.

Work No. 4 - A road, being a realignment of Cromwell Lane and Station Avenue, commencing in Cromwell Lane at a point 200 metres south of Tile Hill level crossing and terminating in Station Avenue at a point 255 metres north of that level crossing, including the construction of bridges over the London to Birmingham Section, Work No. 6 and the private access to Station Avenue.

Work No. 4A - A road, being a vertical realignment of Duggins Lane, commencing in Duggins Lane at a point 54 metres west of the junction of Duggins Lane and Station Avenue and terminating by a junction with Work No. 4 at a point 4 metres east of the said junction of Duggins Lane and Station Avenue.

Work No. 5 - A spur road, being a partial diversion of Station Avenue, commencing in Station Avenue at a point 140 metres north of Tile Hill level crossing and terminating by a junction with Work No. 4A at a point 41 metres west of the junction of Duggins Lane and Station Avenue.

Work No. 6 - A road, commencing in Alan Higgs Way at a point 9 metres west of the junction of Alan Higgs Way and Cromwell Lane, passing beneath Work No. 4 and terminating by a junction with Work No. 4 at a point 91 metres south of Tile Hill level crossing, including the provision of car parking to be served by that work.

Work No. 7 - A station footbridge, at Tile Hill station on the London to Birmingham Section, commencing at point X, 59 metres west of Tile Hill level crossing abutting the southern platform of that station and terminating at point Y, 58 metres west of that level crossing on the northern platform of that station.

In the Metropolitan Borough of Solihull - 

Work No. 8 - A pedestrian and cycle underpass beneath the London to Birmingham Section, commencing in Station Road at a point 55 metres south west of Berkswell level crossing extending under that railway and terminating in Truggist Lane at a point 104 metres north east of that level crossing.

Work No. 9 - A footpath, including a footbridge over Station Road, commencing in Berkswell station car park at a point 52 metres south east of Berkswell level crossing and terminating at a point adjacent to that station, 11 metres west of that level crossing.

Work No. 10 - A road, being a vertical realignment of Truggist Lane, commencing in Truggist Lane at a point 13 metres north east of Berkswell level crossing and terminating in Truggist Lane at a point 137 metres north east of that level crossing including a vehicular turning area.

Work No. 11 - A new cut, being a realignment of a brook beneath Truggist Lane, commencing in that brook at a point 68 metres north east of Berkswell level crossing on the south side of Truggist Lane extending under Work Nos. 10 and 8 and terminating in that brook at a point 56 metres north of that level crossing on the north side of Truggist Lane.

Rugby to Stafford Section
In the County of Warwickshire, Borough of Rugby - 

Work No. 12 - A railway (7,555 metres in length) on the course of the existing railway commencing by a junction with the London to Birmingham Section at a point 183 metres east of Bridge 281 and terminating by a junction with the Rugby to Stafford Section at a point 135 metres east of the bridge carrying Fosse Way over that railway including the partial reconstruction of Bridge 5, Bridge 6 (Little Lawford Lane), Bridge No. 9 (Oxford Canal), Bridge 9a (Footpath FP 117), Bridge 10 (Bridleway BR 86), Bridge 12 and the provision of a drainage outfall into the Oxford Canal.

Work No. 13 - A reconstruction of Bridge No. 8 carrying the Little Lawford to Harborough Magna road over the Rugby to Stafford Section commencing at a point 108 metres south west of that bridge and terminating at a point 118 metres north of that bridge including a realignment of that road.

Work No. 14 - A footbridge over the Rugby to Stafford Section being a replacement of a footbridge, Bridge No. 11a over that railway, commencing at point F9, 15 metres north of that bridge and terminating at point F13, 17 metres south west of that bridge.

In the County of Warwickshire, Borough of Nuneaton and Bedworth - 

Work No. 15 - A railway (1,015 metres in length) on the course of the existing railway, commencing by a junction with the Rugby to Stafford Section at a point 10 metres north of the bridge carrying Gipsy Lane over that railway and terminating by a junction with that railway at a point 9 metres west of the bridge carrying Lutterworth Road over that railway.

Work No. 16 - A railway (1,185 metres in length), commencing by a junction with the Nuneaton to Leicester Railway at a point 114 metres east of the termination of Whiteacre Road and terminating by a junction with the Rugby to Stafford Section at a point 15 metres south west of the bridge carrying Leicester Road over that railway, including an underbridge beneath the Rugby to Stafford Section, a junction with Work No. 16B and retaining walls.

Work No. 16A - A new cut, being a diversion of the river Anker, commencing in that river at a point 130 metres south west of the termination of Whiteacre Road and terminating in that river at a point 242 metres south west of that road.

Work No. 16B - A railway (547 metres in length) being a realignment of the Nuneaton to Coventry Railway commencing at a point 8 metres north east of the bridge carrying Attleborough Road under that railway and terminating by a junction with Work No. 16 at a point 166 metres south east of the bridge carrying Leicester Road over the Rugby to Stafford Section including retaining walls.

Work No. 16C - A lowering of the underpass beneath the Rugby to Stafford Section and the Nuneaton to Leicester and Coventry Railways and a diversion of the footway between Oaston Road and Wheat Street commencing at point F2, 29 metres north west of the termination of Oaston Road and terminating at point F7, 7 metres north west of the junction of Wheat Street and Glebe Road.

Work No. 17 - A railway (1,545 metres in length) commencing by a junction with the Nuneaton to Leicester Railway at a point 17 metres north of the bridge carrying Leicester Road over that railway and terminating by a junction with the Nuneaton to Birmingham Railway at a point 29 metres north east of the bridge carrying Midland Road over that railway, including the provision of an island platform and station footbridge at Nuneaton station and a maintenance depot and retaining walls.

Work No. 17A - A road, being a realignment of Weddington Terrace, commencing in Weddington Terrace at a point 19 metres west of the junction of Weddington Road and Weddington Terrace at the Graziers Arms Public House and terminating in Weddington Terrace at a point 67 metres north west of that junction.

In the County of Staffordshire, District of Lichfield - 

Work No. 21A - A railway (422 metres in length) on the course of the existing railway, commencing by a junction with the southern track of the Rugby to Stafford Section at a point 36 metres west of the bridge carrying the A38 trunk road over that railway and terminating at a point 80 metres north west of the bridge carrying Burton Old Road over that railway.

Work No. 21B - A railway (420 metres in length) on the course of the existing railway, commencing by a junction with the northern track of the Rugby to Stafford Section at a point 36 metres west of the bridge carrying the A38 trunk road over that railway and terminating at a point 81 metres north west of the bridge carrying Burton Old Road over that railway.

Work No. 22 - A railway (8,525 metres in length) on the course of the existing railway, commencing by a junction with the Rugby to Stafford Section at a point 145 metres north west of the bridge carrying Burton Road (A5127) over that railway and terminating by a junction with that railway at a point 8 metres east of the bridge carrying that railway over footpath FP 17 including the demolition, reconstruction and extension of bridges and the underbridge extension of the bridge over the Trent and Mersey Canal.

Work No. 23 - A footbridge over the Rugby to Stafford Section being a replacement of a footbridge carrying footpath FP 10/FP 1 over that railway, commencing at point F3, 26 metres south west of the existing footbridge over that railway and terminating at point F4, 35 metres north east of that existing footbridge.

Work No. 24 - A road, being a realignment of Netherstowe Lane, commencing in Netherstowe Lane at a point 53 metres south west of the bridge carrying that road over the Rugby to Stafford Section and terminating in that road at a point 215 metres north of that bridge, including the construction of a bridge over that railway and an accommodation road.

Work No. 24A - A road, being a realignment of Netherstowe Lane, commencing in Netherstowe Lane at a point 54 metres south of the bridge carrying that road over the Rugby to Stafford Section and terminating in that road by a junction with Work No. 24 at a point 38 metres south west of that bridge.

Work No. 24B - A road, being a realignment of Spring Road, commencing in Spring Road at a point 57 metres north west of the junction of that road and Netherstowe Lane and terminating with Work No. 24 at that junction.

Work No. 25 - A footbridge over the Rugby to Stafford Section being a replacement of a footbridge carrying footpath FP 8 over that railway, commencing in that footpath at point F9, 16 metres south west of the existing footbridge over that railway and terminating at point F11, 27 metres north east of that existing footbridge.

Work No. 28 - A road, being a realignment of Fog Lane, commencing in Fog Lane at a point 147 metres south of the junction of Wood End Lane and Fog Lane and terminating at a point 31 metres north east of the termination of Fog Lane.

Work No. 28A - An accommodation road commencing by a junction with the termination of Work No. 28 and terminating in a private road at a point 129 metres west of Tomhay Wood Farm.

Work No. 29 - A road, being a realignment of Tewnals Lane (A515), commencing in Tewnals Lane at a point 225 metres south of the bridge carrying that road over the Rugby to Stafford Section and terminating in that road at a point 210 metres north of that bridge, including the construction of a bridge over that railway.

Work No. 29A - A road, being a realignment of Wood End Lane, commencing in Wood End Lane at a point 52 metres east of the junction of that road and Tewnals Lane (A515) and terminating with Work No. 29 at that junction.

Work No. 30 - A road, being a realignment of Shaw Lane, commencing in Shaw Lane at a point 182 metres south west of the bridge carrying that road over the Rugby to Stafford Section and terminating in that road at a point 196 metres north east of that bridge including the construction of a bridge over that railway and an accommodation road.

Work No. 31 - A road, being a realignment of Lichfield Road (B5015), commencing in Lichfield Road at a point 119 metres south of the bridge carrying that road over the Rugby to Stafford Section and terminating in that road at a point 162 metres north west of that bridge including the construction of a bridge over that railway.

Work No. 31A - A spur road, being a partial diversion of Uttoxeter Road (B5014), commencing in Uttoxeter Road at a point 119 metres north of the bridge carrying Lichfield Road over the Rugby to Stafford Section and terminating with Work No. 31 at a point 83 metres north of that bridge.

(a) the owner or occupier of premises the drains of which communicated with that sewer, or

(b) the owner of a private sewer which communicated with that sewer,

shall be entitled to recover from Network Rail compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of making his drain or sewer communicate with any other public sewer or with a private sewage disposal plant.

    (5) The provisions of the 1990 Act mentioned in sub-paragraph (1), as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which paragraph 2 or Part III of the Street Works Act applies.

    (6) In this paragraph - 

"the 1990 Act" means the Town and Country Planning Act 1990;

"public telecommunications operator" means - 

"adequate alternative apparatus" means alternative apparatus adequate to enable the undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

"apparatus" means - 

(a) make reasonable compensation to BT for loss sustained by it, and

(b) indemnify BT against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, BT, by reason or in consequence of any such damage or interruption.

    (2) Sub-paragraph (1) shall not apply to any apparatus in respect of which the relations between Network Rail and BT are regulated by the provisions of Part III of the Street Works Act or to any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised works.

    (3) Nothing in sub-paragraph (1) shall impose any liability on Network Rail with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of BT, its officers, servants, contractors or agents.

    (4) BT shall give Network Rail reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent of Network Rail 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.

     17. Any difference arising between Network Rail and a telecommunications operator under this Part of this Schedule shall be referred to and settled by arbitration under article 46 of this Order.

"construction" includes placing or altering; and "constructed" shall be construed accordingly;

"plan" includes sections and method statements;

"sewer" means a public sewer within the meaning of the Water Industry Act 1991 and includes a disposal main within the meaning of that Act;

"specified work" means so much of the authorised works as will or may be situated over or within 15 metres measured in any direction of, or (wherever situated) impose any load directly upon, any sewer; and

"the undertaker" means the sewerage undertaker for the area of the works or whose sewers are affected.

    (3) The provisions of Schedule 12 to this Order shall not apply in relation to apparatus to which this Part of this Schedule applies.

     19.  - (1) Before commencing the construction or renewal of any specified work and in the case of any temporary work its removal, Network Rail shall submit to the undertaker plans of the work as described in sub-paragraph (3) (in this Part of this Schedule referred to as "the plans") and shall not commence that work until the undertaker has signified in writing its approval of those plans.

    (2) Any approval of the undertaker required under this paragraph - 

(a) may be given subject to reasonable conditions,

(b) shall not be unreasonably withheld, and

(c) shall be deemed to have been given if it is neither given nor refused within 56 days of the submission of plans for approval.

    (3) The plans to be submitted to the undertaker shall be detailed plans, drawings, sections and specifications describing the position and manner in which, and the level at which, any specified work is proposed to be constructed and the position of all sewers of the undertaker within 15 metres of that work or upon which the specified work will impose a load and shall include detailed drawings of every alteration which Network Rail may propose to any such sewers.

    (4) For the purpose of the preparation of the plans the undertaker shall permit Network Rail to have access to plans in its possession and to any of its sewers.

    (5) The undertaker may require such modifications to be made to the plans as may be reasonably necessary to secure the sewerage system of the undertaker against interference or risk of damage and to provide and secure proper and convenient means of access to any sewer.

     20.  - (1) The specified work shall be constructed and in the case of any temporary work removed, in accordance with the plans approved, or deemed to have been approved under paragraph 19 or settled by arbitration, as the same may be amended from time to time by agreement between Network Rail and the undertaker, and in the construction or removal of any specified work Network Rail shall comply with all reasonable requirements of the undertaker and shall provide new, altered or substituted sewers or works for the protection of any sewers of the undertaker, in such manner as the undertaker may reasonably require by way of replacement provision for or for the proper protection of, and for preventing injury or impediment to, any such sewer by reason of any specified work.

    (2) All works under sub-paragraph (1) for the provision of new, altered or substituted sewers or the protection of any sewers of the undertaker shall, where so required by the undertaker, be constructed by the undertaker or under the supervision (if given) of an officer of the undertaker duly appointed for the purpose, and all costs, charges and expenses reasonably incurred by the undertaker in the construction of such works, or in the preparation or examination of plans or designs for such works, or in such supervision, shall be paid to the undertaker by Network Rail.

    (3) When works for the provision of any such new, altered or substituted sewer, or any such protective work forming part of any such new, altered or substituted sewer or any existing sewer of the undertaker, have been completed under this Part of this Schedule to the reasonable satisfaction of the undertaker, they shall be vested in and become maintainable by the undertaker.

     21.  - (1) Subject to the following provisions of this Part of this Schedule, Network Rail shall be liable to make good, or, if the undertaker so decides, to repay to the undertaker any expense reasonably incurred by the undertaker in making good, all injury or damage to any sewers, drains or works vested in the undertaker (except in so far as such sewer, drain or work is intended for alteration or removal for the purposes of the specified work) caused by or resulting from the construction of any specified work or any investigation undertaken in respect of any specified work and the provision of any new, altered or substituted sewer or any protective work under this Part of this Schedule and shall pay to the undertaker any additional expense to which it may be put in the maintenance, management or renewal of any new, altered or substituted sewer which may be necessary in consequence of the construction of any specified work.

    (2) Network Rail shall indemnify the undertaker against all actions, claims, demands, costs, expenses, damages or loss which may be made on or against the undertaker, which the undertaker may incur or have to pay or which it may sustain in consequence of the construction of any specified work or of the failure or want of repair of any specified work or any subsidence caused by the construction of any specified work or in consequence of any act or omission of Network Rail, its contractors, agents, workmen or servants, whilst engaged upon any specified work and any new, altered or substituted sewer or any protective work.

    (3) The undertaker shall give to Network Rail reasonable notice of any such claim or demand as is mentioned in sub-paragraph (2) and no settlement or compromise of the claim or demand shall be made without the agreement in writing of Network Rail.

    (4) Nothing in sub-paragraph (1) or (2) shall impose any liability on Network Rail in respect of any damage to the extent that it is attributable to the act, neglect or default of the undertaker, its officers, servants, or, if not Network Rail, its contractors or agents.

    (5) If in pursuance of the provisions of this Part of this Schedule - 

(a) a sewer of better type, of greater capacity or of greater dimensions is placed in substitution for an existing sewer of worse type, of smaller capacity or of smaller dimensions except where this has been solely due to using the nearest currently available type; or

(b) a sewer (whether an existing sewer or a sewer substituted for an existing sewer) is placed at a depth greater than the depth at which the existing sewer was,

and the placing of a sewer of that type or capacity or of those dimensions or the placing of a sewer at that depth, as the case may be, is not agreed by Network Rail or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves costs in the construction of works under this Part of this Schedule exceeding that which would have been involved if the sewer 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 paragraph would be payable to the undertaker by virtue of sub-paragraph (1) shall be reduced by the amount of that excess.

    (6) For the purposes of sub-paragraph (5) an extension of a sewer to a length greater than the length of an existing sewer shall not be treated as a placing of a sewer of greater dimensions than those of the existing sewer.

    (7) An amount which apart from this sub-paragraph would be payable to the undertaker in respect of works by virtue of sub-paragraph (1) (and having regard, where relevant, to sub-paragraph (5)) shall, if the works include the placing of a sewer provided in substitution for a sewer placed more than 7 years and 6 months earlier so as to confer on the undertaker any financial benefit by deferment of the time for renewal of the sewer in the ordinary course, be reduced by the amount which represents that benefit.

    (8) Sub-paragraphs (1) and (5) to (7) shall not apply where the authorised works constitute major transport works for the purposes of Part III of the Street Works Act, but instead - 

(a) the allowable costs of the construction of works under this Part of this Schedule shall be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) and any regulations for the time being having effect under that section; and

(b) the allowable costs shall be borne by Network Rail and the undertaker in such proportions as may be prescribed by any such regulations.

     22.  - (1) An officer of the undertaker duly appointed for the purpose may, at any reasonable time and, if required by Network Rail, under its supervision and control, enter upon and inspect any specified work or any other works constructed under this Part of this Schedule.

    (2) The approval by the undertaker of any plans, drawings, sections or specifications or the supervision by it of any work under this Part of this Schedule shall not (if it was done without negligence on the part of the undertaker, its officers, servants, or, if not Network Rail, its contractors or agents) exonerate Network Rail from any liability or affect any claim for damages by the undertaker.

     23.  - (1) Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 13 of this Order, the undertaker shall be at liberty at all times to construct and do all such works and things in, upon or under any such highway as may be reasonably necessary to enable it to maintain, renew, protect or use any sewer which at the time of the stopping up or diversion was in that highway.

    (2) Where, in consequence of this Order, any part of any street, bridleway or footpath in which any sewer is situated ceases to be part of the street, bridleway or footpath, the undertaker may exercise the same rights of access to such sewer as it enjoyed immediately before the coming into force of this Order, but nothing in this paragraph shall affect any right of Network Rail or of the undertaker to require alteration of such sewer under this Part of this Schedule.

     24. Network Rail shall, so far as is reasonably practicable, so exercise the powers conferred by article 22 of this Order as not to obstruct or render less convenient the access to any sewer.

     25. As soon as reasonably practicable after the completion of the construction of any specified work Network Rail shall deliver to the undertaker a plan and section showing the position and level of that work as constructed and all new, altered or substituted works provided under this Part of this Schedule.

     26. Nothing in this Part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between Network Rail and the undertaker in respect of any sewer or other apparatus constructed, laid or erected in land belonging to Network Rail before the coming into force of this Order.

     27. Any difference arising between Network Rail and the undertaker under this Part of this Schedule shall be referred to and settled by arbitration under article 46 of this Order.

"the Agency" means the Environment Agency;

"construction" includes execution, placing, altering, replacing, relaying and removal; and "construct" and "constructed" shall be construed accordingly;

"drainage work" means any watercourse and includes any land which provides or is expected to provide flood storage capacity for a flood event with an annual probability of occurrence of 0.01 or greater for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

"fishery" means any waters containing fish and fish in, or migrating to or from such waters and the spawn, habitat or food of such fish;

"plans" includes sections, drawings, specifications and method statements;

"specified work" means so much of any work or operation authorised by this Order as is in, on, under, over or within 16 metres of a drainage work or is otherwise 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 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

"watercourse" includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows (whether or not the flow is intermittent) except a public sewer within the meaning of the Water Industry Act 1991.

     29.  - (1) Before beginning to construct any specified work, Network Rail shall submit to the Agency plans of the work and such further particulars available to it as the Agency may within 28 days of the submission of the 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 40.

    (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 two months of the submission of the plans for approval; 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 and in the discharge of its environmental and recreational duties.

     30. Without prejudice to the generality of paragraph 29, the requirements which the Agency may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified work (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary - 

(a) to safeguard any drainage work against damage; or

(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,

by reason of any specified work.

     31.  - (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the Agency under paragraph 30, shall be constructed - 

(a) within three years of the Agency's approval under paragraph 29 or such longer period as the Agency may consent to at the time of the approval or upon an application by Network Rail thereafter (such consent not to be unreasonably withheld);

(b) in accordance with the plans approved or deemed to have been approved or settled under this Part of this Schedule; and

(c) to the reasonable satisfaction of the Agency,

and the Agency shall be entitled by its officer to watch and inspect the construction of such works.

    (2) Without prejudice to any reasonable requirements of the Agency under paragraph 30 relating to protective works, if any specified work or protective work is not constructed within the period required under sub-paragraph (1)(a), Network Rail may submit to the Agency new plans of the work for further approval and the provisions of this Part of this Schedule shall apply accordingly.

    (3) Network Rail shall give to the Agency not less than 14 days' notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

    (4) If any part of a specified work or any protective work required by the Agency is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the Agency may by notice in writing require Network Rail, at Network Rail's own expense, to comply with the requirements of this Part of this Schedule or (if Network Rail 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 and within such limits as the Agency reasonably requires.

    (5) Subject to sub-paragraph (6) and paragraph 35, if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (4) is served upon Network Rail, it has failed to begin taking steps to comply with the requirements of the notice and thereafter to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from Network Rail.

    (6) In the event of any dispute as to whether sub-paragraph (4) is 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 emergency, exercise the powers conferred by sub-paragraph (5) until the dispute has been fully determined.

     32.  - (1) Subject to the provisions of this Part of this Schedule and except to the extent that the Agency or another person is liable to maintain any such work and is not precluded by the exercise of the powers of the Order from so doing, Network Rail shall from the commencement of the construction of the specified work maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation or on land held by Network Rail for the purposes of or in connection with the specified work, whether or not the drainage work is constructed under the powers of the Order or is already in existence.

    (2) If any such drainage work which Network Rail is liable to maintain is not maintained to the reasonable satisfaction of the Agency, the Agency may by notice in writing require Network Rail to repair and restore the work, or any part thereof, or (if Network Rail so elects and the Agency in writing consents, such consent not to be unreasonably withheld), to remove the work and restore the site (including sea defences) to its former condition, to such extent and within such limits as the Agency reasonably requires.

    (3) Subject to paragraph 35, 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 Network Rail, Network Rail 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 implementation, the Agency may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from Network Rail.

    (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 emergency, exercise the powers of sub-paragraph (3) until the dispute has been finally determined.

     33. Subject to paragraph 35, 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, such impairment or damage shall be made good by Network Rail to the reasonable satisfaction of the Agency and, if Network Rail fails to do so, the Agency may make good the same and recover from Network Rail the expense reasonably incurred by it in so doing.

     34.  - (1) Network Rail 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 - 

(a) the construction of any specified work, or

(b) the failure of any such work,

damage to a fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on Network Rail requiring it to take such steps as may be reasonably practicable to make good the damage, or, as the case may be, to protect that fishery against such damage.

    (3) Subject to paragraph 35, if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, Network Rail fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from Network Rail the expense reasonably incurred by it in doing so.

    (4) Subject to paragraph 35, in any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to a fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from Network Rail the reasonable cost of so doing provided that notice specifying those steps is served on Network Rail as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.

     35. Nothing in paragraphs 31 to 34 shall authorise the Agency to execute works on or affecting an operational railway forming part of Network Rail's network without the written consent of Network Rail, such consent not to be unreasonably withheld.

     36. Network Rail shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain - 

(a) in the examination or approval of plans under this Part of this Schedule; and

(b) in the inspection of the construction of any specified work or any protective works required by the Agency under this Part of this Schedule.

     37.  - (1) Without prejudice to the other provisions of this Part of this Schedule, Network Rail shall indemnify the Agency from all claims, demands, proceedings, costs, damages or expenses or loss, which may be made or taken against, or recovered from or incurred by, the Agency by reason of - 

(a) any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

(b) any damage to a fishery;

(c) any raising or lowering of the water table in land adjoining the authorised works or any sewers, drains or watercourses;

(d) any flooding or increased flooding of any such land; or

(e) inadequate water quality in any watercourse or other surface waters or in any groundwater,

"BW" means the British Waterways Board;

"BW's network" means BW's network of waterways;

"construction", in relation to any specified work or protective work, includes - 

(a) the execution and placing of that work; and

(b) any such replacing, relaying, removal, alteration, maintenance, repair or reconstruction of that work as may be carried out during the period of 12 months from the completion of that work,

and "construct" and "constructed" have corresponding meanings;

"detriment" means any permanent damage to a waterway or any other property of BW and, without prejudice to the generality of that meaning, includes - 

(a) the erosion of the bed or banks of a waterway or the impairment of the stability of any works, lands or premises forming part of a waterway;

(b) the siltation of a waterway or the deposit of materials in it so as to permanently damage the waterway;

(c) the pollution of a waterway;

(d) any permanent alteration in the water level of a waterway, or permanent interference with the supply of water thereto, or drainage of water therefrom; and

(e) any permanent harm to the ecology of a waterway (including any permanent adverse impact on any site of special scientific interest comprised in BW's network);

"the engineer" means an engineer appointed by BW for the purpose in question;

"plans" includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction) and programmes;

"protective work" means a work constructed under paragraph 46(3);

"specified work" means so much of any of the authorised works as is situated upon, across, under, over or within 15 metres of, or may directly and physically affect, the waterway;

"towing path" means the towing path forming part of the waterway; and

"waterway" means any canal, or inland navigation belonging to or under the management or control of BW, and includes any works, land or premises belonging to BW, or under its management or control, and held or used by BW in connection with any such canal or inland navigation.

    (3) Network Rail shall not under the powers conferred by this Order acquire compulsorily any land of BW, or any easement or other right over such land other than such land, or easements or other rights over such land, as is reasonably necessary for, or in connection with, the construction, maintenance or operation of works authorised by this Order.

(a) to discharge any water directly or indirectly into a waterway, or

(b) to carry out any works to, or make any opening in, or otherwise interfere with, a waterway (including the banks and bed thereof),

except with the consent of BW and in accordance with plans approved by, and under the supervision (if given) of, the engineer.

    (3) Network Rail shall not exercise the powers conferred by article 23 of this Order, or the powers conferred by section 11(3) of the 1965 Act, in relation to a waterway unless such exercise is with the consent of BW.

    (4) Network Rail shall not exercise the powers conferred by section 271 or 272 of the Town and Country Planning Act 1990, as applied by Schedule 12 to this Order, so as permanently to divert any right of access to a waterway, but such right of access may be permanently diverted with the consent of BW.

    (5) The consent of BW pursuant to any of sub-paragraphs (1) to (4) and the approval of plans under sub-paragraph (2) shall not be unreasonably withheld or delayed but may be given subject to reasonable conditions which in the case of article 21 may include conditions - 

(a) specifying the maximum volume of water which may be discharged in any period; and

(b) authorising BW on giving reasonable notice (except in an emergency when BW may require immediate suspension) to Network Rail to require Network Rail to suspend the discharge of water or reduce the flow thereof where this is necessary by reason of any operational requirement of BW and where a reasonable alternative is available to enable Network Rail to discharge the water in question during the period of the suspension.

Vehicles, plant and machinery

     43. Network Rail shall not use any land or property of BW forming part of a waterway for the passage or siting of vehicles, plant or machinery employed in the construction of the specified work other than - 

(a) with the consent in writing of the engineer whose consent shall not be unreasonably withheld; and

(b) subject to compliance with such reasonable requirements as the engineer may from time to time specify - 


(i) for the prevention of detriment, or

(ii) in order to avoid or reduce any inconvenience to BW, its officers and agents and all other persons lawfully on such land or property,



but nothing in this paragraph shall apply in relation to anything done in accordance with any approval given by BW under paragraph 46.



Closure of towing paths etc.

     44. If in consequence of or in connection with the exercise of the powers of this Order any part of a towing path or any public right of way giving access thereto ("the closed section") is temporarily closed to persons on foot or on cycles and there is no way which provides a reasonable alternative, Network Rail shall, to the reasonable satisfaction of BW, provide in substitution a sufficient and convenient way as is reasonably practicable between the points of commencement and termination of the closed section for such time as the closure continues.

(a) any protective work (whether temporary or permanent) which is reasonably necessary to be carried out before the commencement of any specified work to prevent detriment; and

(b) such other requirements as may be reasonably necessary to prevent detriment,

and such protective work shall be constructed by Network Rail with all reasonable dispatch and Network Rail shall not commence the construction of any specified work until the engineer has notified Network Rail that the protective work has been completed to his reasonable satisfaction.

(a) with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled as aforesaid and with any requirements made under paragraph 46(3)(b);

(b) under the supervision (if given) and, in the case of any specified work which directly and physically affects a waterway, to the reasonable satisfaction of the engineer;

(c) in such manner as to cause as little detriment as is reasonably practicable; and

(d) in such manner as to cause as little inconvenience as is reasonably practicable to BW, its officers and agents and all other persons lawfully using the waterways.