PART IPRELIMINARY

Citation and commencement

1.  This Order may be cited as the Railtrack (Shortlands Junction) Order 2001 and shall come into force on 18th July 2001.

Interpretation

2.—(1) In this Order—

“the 1961 Act” means the Land Compensation Act 1961(3);

“the 1965 Act” means the Compulsory Purchase Act 1965(4);

“the 1984 Act” means the Road Traffic Regulation Act 1984(5);

“the Applications Rules” means the Transport and Works (Applications and Objections Procedure) Rules 1992, and references in this Order to numbered rules are to the Applications Rules bearing those numbers;

“authorised works” means the scheduled works and any other works authorised by this Order;

“the book of reference” means the book of reference described in rule 7(5) certified by the Secretary of State as the book of reference for the purposes of this Order;

“the deposited plans” means the plans prepared in pursuance of rule 7(1) and (3) certified by the Secretary of State as the deposited plans for the purposes of this Order and references to land shown on those plans are references to land so shown in pursuance of rule 7(3);

“carriageway” and “footpath” have the same meaning as in the Highways Act 1980(6);

“the deposited sections” means the sections described in rule 7(2) certified by the Secretary of State as the deposited sections for the purposes of this Order;

“enactment” includes any order, byelaw, rule, regulation, scheme or other instrument having effect by virtue of an enactment;

“the limits of deviation”, in relation to a work, means the limits of deviation related to that work which are shown on the deposited plans;

“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace; and “maintenance” shall be construed accordingly;

“the Order limits” means any of the limits of deviation or the limits of land to be acquired or used under article 11, 15(3) or 16 below;

“owner”, in relation to land, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of land (whether in possession or reversion) and includes a person holding, or entitled to the rents and profits of, the land under a lease or tenancy having an unexpired term exceeding 3 years;

“Railtrack” means Railtrack PLC;

“the scheduled works” means the works specified in Schedule 1 to this Order;

“street” includes part of a street;

“street authority” in relation to a street has the same meaning as in Part III of the Street Works Act;

“the Street Works Act” means the New Roads and Street Works Act 1991(7); and

“the tribunal” means the Lands Tribunal.

(2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in or on land or in the air space over its surface.

(3) All directions, distances and lengths stated in any description of works, powers or lands shall be construed as if the words “or thereabouts” were inserted after each such direction, distance and length.

(4) Any reference in this Order to a work identified by the number of the work shall be construed as a reference to the work of that number authorised by this Order.

Incorporation of the Railways Clauses Consolidation Act 1845

3.—(1) The following provisions of the Railways Clauses Consolidation Act 1845(8) shall be incorporated in this Order—

• section 24 (obstructing construction of railway), subject to the modification in paragraph (3) below;

• section 58 (company to repair roads used by them), except for the words from “and if any question” to the end;

• section 68 (accommodation works by company);

• section 71 (additional accommodation works by owners), except for the words “or directed by such justices to be made by the company” and “or, in case of difference, as shall be authorised by two justices”;

• sections 72 and 73 (supplementary provisions relating to accommodation works);

• section 77 (presumption that minerals excepted from acquisition of land);

• sections 78 to 85E and Schedules 1 to 3 (minerals under railways), as respectively substituted and inserted by section 15 of the Mines (Working Facilities and Support) Act 1923(9);

• section 145 (recovery of penalties); and

• section 154 (transient offenders).

(2) In those provisions, as incorporated in this Order—

“the company” means Railtrack;

“prescribed”, in relation to any such provision, means prescribed by this Order for the purposes of that provision;

“the special Act” means this Order.

(3) Section 24 of the said Act of 1845, as incorporated in this Order, shall have effect as if the maximum fine which may be imposed on summary conviction of an offence under that section were instead of a fine not exceeding level 2 on the standard scale, a fine not exceeding level 3 on the standard scale.

PART IIWORKS

Principal powers

Power to construct and maintain scheduled works

4.—(1) Railtrack may construct and maintain the scheduled works.

(2) Subject to article 6 below, the scheduled works shall be constructed in the lines or situations shown on the deposited plans and in accordance with the levels shown on the deposited sections.

Power to construct and maintain ancillary works

5.—(1) Railtrack may, within the limits of deviation for the scheduled works, do such of the following as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the scheduled works, namely—

(a)make, provide and maintain all such approaches, bridges, ramps, means of access, shafts and stagings as Railtrack thinks fit;

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

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

(d)alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses; and

(e)carry out and maintain such other works, of whatever description, as may be necessary or expedient.

(2) Railtrack 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.

Power to deviate

6.—(1) In constructing or maintaining any scheduled work, Railtrack may—

(a)subject to paragraph (2) below deviate laterally from the lines or situations shown on the deposited plans within the limits of deviation for that work so shown; and

(b)deviate vertically from the levels shown on the deposited sections to any extent not exceeding—

(i)in relation to Work No. 5A and Work No. 5B, one metre upwards or downwards; and

(ii)in relation to any other work, one and a half metres upwards or downwards.

(2) The centre line of any track comprised in Work No. 3 shall not be located any closer to the houses on the southern side of the existing railway than the centre line for that work shown on the deposited plans.

Discharge of water

7.—(1) Railtrack may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land within the Order limits, make openings into, and connections with, the watercourse, sewer or drain.

(2) Railtrack shall not discharge any water into any watercourse, public sewer or drain except with the consent of the authority to which it belongs; and such consent may be given subject to such terms and conditions as the authority may reasonably impose but shall not be unreasonably withheld.

(3) Railtrack shall not make any opening into any public sewer or drain except in accordance with plans approved by, and under the superintendence (if provided) of, the authority to which the sewer or drain belongs, but such approval shall not be unreasonably withheld.

(4) Railtrack shall not, in the exercise of the powers conferred by this article, damage or interfere with the bed or banks of any watercourse forming part of a main river.

(5) Railtrack shall take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance or oil or matter in suspension.

(6) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by section 85(1), (2) or (3) of the Water Resources Act 1991(10).

(7) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board, a local authority or a joint planning board;

(b)“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer or drain; and

(c)other expressions used both in this article and in the Water Resources Act 1991 have the same meaning as in that Act.

Safeguarding works to buildings

8.—(1) Subject to the following provisions of this article, Railtrack may at its own expense and from time to time carry out such safeguarding works to any building within the Order limits as Railtrack considers to be necessary or expedient.

(2) Safeguarding works may be carried out—

(a)at any time before or during the construction in the vicinity of the building of any part of the authorised works; or

(b)after the completion of the construction of that part of the authorised works, at any time up to the end of the period of 5 years beginning with the day on which that part of the authorised works is first opened to use.

(3) For the purpose of determining how the functions under this article are to be exercised Railtrack may enter and survey any building falling within paragraph (1) above and any land belonging to it.

(4) For the purpose of carrying out safeguarding works under this article to a building Railtrack may (subject to paragraphs (5) and (6) below)—

(a)enter the building and any land belonging to it, and

(b)where the works cannot be carried out reasonably conveniently without entering land adjacent to the building, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a)a right under paragraph (1) above to carry out safeguarding works to a building;

(b)a right under paragraph (3) above to enter a building;

(c)a right under paragraph (4)(a) above to enter a building or land; or

(d)a right under paragraph (4)(b) above to enter land,

Railtrack shall, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days' notice of its intention to exercise that right and, in a case within sub-paragraph (a) or (c) above, specifying the safeguarding works proposed to be carried out.

(6) Where notice is served under paragraph (5)(a), (c) or (d) above, the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the safeguarding works or to enter the building or land to be referred to arbitration under article 31 below.

(7) Railtrack shall compensate the owners and occupiers of any building or land in relation to which the powers of this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

(8) Where—

(a)safeguarding works are carried out under this article to a building, and

(b)within the period of 5 years beginning with the day on which the part of the authorised works constructed within the vicinity of the building is first opened for use it appears that the safeguarding works are inadequate to protect the building against damage caused by the construction or operation or that part of the works,

Railtrack shall compensate the owners and occupiers of the building for any damage sustained by them.

(9) Nothing in this article shall relieve Railtrack from any liability to pay compensation under section 10(2) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) above shall be determined, in case of dispute, under Part I of the 1961 Act.

(11) In this article—

(a)“building” includes any structure or erection or any part of a building, structure or erection; and

(b)“safeguarding works”, in relation to a building, means—

(i)underpinning, strengthening and any other works the purpose of which is to prevent damage which may be caused to the building by the construction, maintenance or operation of the authorised works; and

(ii)any works the purpose of which is to remedy any damage which has been caused to the building by the construction, maintenance or operation of the authorised works.

Power to survey and investigate land

9.—(1) Railtrack may for the purposes of this Order—

(a)survey or investigate any land within the Order limits;

(b)without prejudice to the generality of sub-paragraph (a) above, make trial holes in such positions as it thinks fit on any such land to investigate the nature of the surface layer and subsoil and remove soil samples;

(c)without prejudice to the generality of sub-paragraph (a) above, carry out ecological or archaeological investigations on any such land;

(d)place on, leave on and remove from the land apparatus for use in connection with the exercise of any of the powers conferred by sub-paragraphs (a) to (c) above; and

(e)enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (d) above.

(2) No land may be entered, or equipment placed or left on or removed from the land under paragraph (1) above, unless at least 7 days' notice has been served on every owner and occupier of the land.

(3) Any person entering land under this article on behalf of Railtrack—

(a)shall, if so required, before or after entering the land produce written evidence of his authority to do so; and

(b)may take with him such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.

(4) No trial holes shall be made under this article in a carriageway or footway without the consent of the street authority, but such consent shall not be unreasonably withheld.

(5) Railtrack shall make compensation for any damage occasioned, by the exercise of the powers conferred by this article, to the owners and occupiers of the land, such compensation to be determined, in case of dispute, under Part I of the 1961 Act.

(6) Nothing in this article shall obviate any need to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979(11).

Temporary stopping up of streets

10.—(1) Railtrack, during and for the purposes of the execution of the authorised works, may temporarily stop up, alter or divert so much of Downs Hill (“the street”) as falls within the limits of deviation for Work No. 5A and may for any reasonable time—

(a)divert the traffic from the street, and

(b)subject to paragraph (3) below, prevent all persons from passing along the street.

(2) Railtrack may use the street stopped up under the powers of this article as a temporary working site.

(3) Railtrack shall provide reasonable access for pedestrians going to or from premises abutting on the street affected by the exercise of the powers conferred by this article, if there would otherwise be no such access.

(4) Railtrack shall not exercise the powers of this article without first consulting the street authority.

(5) The provisions of the Street Works Act mentioned in paragraph (6) below and any regulations made, or code of practice issued or approved under, those provisions shall apply (with the necessary modifications) in relation to the stopping up, alteration or diversion of the street by Railtrack under the powers conferred by this article where no street works are executed in the street as they would apply if the stopping up, alteration or diversion were occasioned by street works executed in the street by Railtrack.

(6) The provisions of the Street Works Act referred to in paragraph (5) above are—

• section 54 (advance notice of certain works),

• section 55 (notice of starting date of works),

• section 59 (general duty of street authority to co-ordinate works),

• section 60 (general duty of undertakers to co-operate),

• section 69 (works likely to affect other apparatus in the street),

• section 76 (liability for cost of temporary traffic regulation),

• section 77 (liability for cost of use of alternative route), and

all such other provisions as apply for the purposes of the provisions mentioned above.

(7) Any person who suffers loss by the suspension of a private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.

Temporary widening of carriageways

11.—(1) Railtrack may, for the purpose of providing an improved access to the working site, temporarily increase the width of the carriageways of the relevant streets by incorporating within those carriageways so much of the footways of the relevant streets and of Bromley Road as lies within the limits marked “Limit of temporary widening of access” on the deposited plans.

(2) On giving up possession of the working site Railtrack shall restore the footways referred to in paragraph (1) above to the reasonable satisfaction of the street authority.

(3) For the duration of a period commencing with the completion of the widening of the carriageways of the relevant streets in accordance with paragraph (1) above and terminating on the restoration of the footways of those streets in accordance with paragraph (2) above, the relevant streets, as so widened, shall be maintained by and at the expense of Railtrack.

(4) In this article—

“the relevant streets” means the streets shown numbered 19 and 20 on the deposited plans; and

“the working site” means so much of the land shown numbered 18b on the deposited plans as is occupied under article 16 below.

Traffic restrictions

12.—(1) Subject to the provisions of this article Railtrack may during and for the purposes of the authorised works from the commencement of this Order and with the consent of the traffic authority in whose area the relevant street is situated (such consent not to be unreasonably withheld)—

(a)prohibit or restrict the parking, stopping, waiting or the loading or unloading of vehicles, at any time, in the relevant streets;

(b)revoke any traffic regulation order in so far as it is inconsistent with any prohibition or restriction made by Railtrack under this paragraph.

(2) Railtrack shall not exercise the powers of this article unless it has—

(a)given not less than 2 weeks' notice in writing of its intention to do so to the chief officer of police and the traffic authority in whose area the relevant streets are situated, and

(b)for a period of not less than 2 weeks displayed a notice of its intention to do so at, or as near as possible to, the relevant streets.

(3) Any prohibition or restriction made by Railtrack under paragraph (1) above shall have effect as if duly made by the traffic authority in whose area the relevant street is situated as a traffic regulation order under the 1984 Act.

(4) Any prohibition or restriction made by Railtrack under paragraph (1) above shall not apply to any vehicle of a statutory utility for so long as it is engaged in connection with the laying, erection, alteration, repair or inspection of any apparatus of that utility.

(5) In this article—

“the relevant streets” means the carriageway of the streets shown numbered 19 and 20 on the deposited plans as widened in accordance with article 11 above; and

“statutory utility” means a statutory undertaker for the purposes of the Highways Act 1980 or a public telecommunications operator as defined in paragraph 1(6) of Schedule 4 to this Order.

PART IIIACQUISITION AND POSSESSION OF LAND

Power of acquisition

Power to acquire land

13.—(1) Railtrack may acquire compulsorily 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 may use any land so acquired for those purpose or for any other purposes connected with or ancillary to its railway undertaking.

(2) This article is subject to article 16(8) below.

Application of Part I of the Compulsory Purchase Act 1965

14.—(1) Part I of the 1965 Act, in so far as not modified by or inconsistent with the provisions of this Order, shall apply to the acquisition of land under this Order—

(a)as it applies to a compulsory purchase to which the Acquisition of Land Act 1981(12) applies, and

(b)as if this Order were a compulsory purchase order under that Act.

(2) Part I of the 1965 Act, as so applied, shall have effect as if section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provisions as to the giving of bonds) were omitted.

Power to acquire new rights

15.—(1) Railtrack may compulsorily acquire such easements or other rights over any land referred to in article 13 above as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.

(2) Railtrack may compulsorily acquire a permanent right of access for the purpose of maintaining the authorised works along such route (limited to 5 metres in width) as it may reasonably require over the land shown numbered 18b on the deposited plans.

(3) Railtrack may compulsorily acquire such soil nailing rights in the subsoil of the land shown numbered 2 on the deposited plans as it considers necessary or expedient in connection with the construction of the authorised works.

(4) Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 2 to this Order), where Railtrack acquires a right over land under this article it shall not be required to acquire a greater interest in it.

(5) Paragraph (1) above shall be treated as also authorising acquisition of easements or other rights by a statutory utility in any case where the Secretary of State gives his consent in writing.

(6) Paragraph (5) above applies to land within the limits of deviation which is or will be required for use in relocating any apparatus which it is expedient to divert or replace in consequence of the carrying out of the works authorised by this Order; and in that paragraph “statutory utility” means a licence holder within the meaning of Part I of the Electricity Act 1989(13), a public gas transporter within the meaning of Part I of the Gas Act 1986(14), a water undertaker within the meaning of the Water Industry Act 1991(15), a sewerage undertaker within Part I of that Act and any local authority which is a relevant authority for the purposes of section 97 of that Act.

(7) Schedule 2 to this Order shall have effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.

(8) In this article “soil nailing rights” means rights to insert soil nails into the subsoil or to carry out other subsoil works for the purposes of strengthening and stabilising the railway cutting.

(9) References in this article to the subsoil of land are references to the subsoil lying more than one metre beneath the level of the surface of the land; and for this purpose “the level of the surface of the land” means—

(a)in the case of any land on which a building is erected, the level of the surface of the ground adjoining the building; or

(b)in any other case, ground surface level.

Temporary possession of land

Temporary use of land for construction of works

16.—(1) Railtrack may, in connection with the carrying out of the authorised works—

(a)enter upon and take temporary possession of the land specified in columns (1) and (2) of Schedule 3 to this Order for the purpose specified in relation to that land in column (3) of that Schedule relating to the authorised work so specified in column (4) of that Schedule,

(b)remove any buildings and vegetation from that land, and

(c)construct temporary works (including the provision of means of access) and buildings on the land.

(2) Not less than 14 days before entering upon and taking temporary possession of land under this article Railtrack shall serve notice of the intended entry on the owners and occupiers of the land.

(3) Railtrack may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the work specified in relation to that land in column (4) of Schedule 3 to this Order.

(4) Before giving up possession of land of which temporary possession has been taken under this article, Railtrack shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but Railtrack shall not be required to replace a building removed under this article.

(5) Railtrack shall pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.

(6) Any dispute as to a person’s entitlement to compensation under paragraph (5) above, or as to the amount of the compensation, shall be determined under Part I of the 1961 Act.

(7) Without prejudice to article 30 below, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5) above.

(8) The powers of compulsory acquisition of land conferred by this Order shall not apply in relation to the land referred to in paragraph (1) above except that Railtrack shall not be precluded from acquiring new rights under paragraph (2) of article 15 above over the land referred to in that paragraph.

(9) Where Railtrack takes possession of land under this article, it shall not be required to acquire the land or any interest in it.

(10) In this article “building” includes structure or any other erection.

Compensation

Disregard of certain interests and improvements

17.—(1) In assessing the compensation (if any) payable to any person on the acquisition from him of any land under this Order, the tribunal shall not take into account—

(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) above “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.

Supplementary

Acquisition of part only of certain properties

18.—(1) This article shall apply instead of section 8(1) of the 1965 Act (as applied by article 14 above) in any case where—

(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 Railtrack 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 Railtrack 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 Railtrack is authorised to acquire compulsorily under this Order.

(8) If Railtrack 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)that the material detriment is not 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 subject to the counter-notice whether or not the whole of that land is land which Railtrack is authorised to acquire compulsorily under this Order.

(9) In any case where by virtue of a determination by the tribunal under this article a notice to treat is deemed to be a notice to treat for less land or more land than that specified in the notice, Railtrack may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and if it does so shall pay to the owner compensation for any loss or expense occasioned to him by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

(10) Where the owner is required under this article to sell only part of a house, building or factory or of land consisting of a house with a park or garden, Railtrack shall pay him compensation for any loss sustained by him due to the severance of that part in addition to the value of the interest acquired.

Extinction or suspension of private rights of way

19.—(1) All private rights of way over land subject to compulsory acquisition under this Order shall be extinguished—

(a)as from the acquisition of the land by Railtrack, whether compulsorily or by agreement, or

(b)on the entry on the land by Railtrack under section 11(1) of the 1965 Act,

whichever is sooner.

(2) All private rights of way over land of which Railtrack takes temporary possession under article 16 above shall be suspended and unenforceable for as long as Railtrack remains in lawful possession of the land.

(3) Any person who suffers loss by the extinguishment or suspension of any private right of way under this article shall be entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.

(4) This article does not apply in relation to any right of way to which section 271 or 272 of the Town and Country Planning Act 1990(16) (extinguishment of rights of statutory undertakers etc.) applies.

Time limit for exercise of power of acquisition

20.—(1) The powers conferred by this Order to acquire land or rights over land compulsorily, and the power conferred by article 16 above to enter upon and take temporary possession of land, shall cease at the end of the period of one year beginning on the day on which this Order comes into force.

(2) Paragraph (1) above shall not prevent Railtrack remaining in possession of land in accordance with article 16 above after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART IVMISCELLANEOUS AND GENERAL

Noise

Control of construction sites: appeals

21.  Sections 60 (control of noise on construction sites) and 61 (prior consent for work on construction sites) of the Control of Pollution Act 1974(17) shall have effect, in relation to works carried out in exercise of the powers conferred by this Order, as if in subsection (7) of each section (appeal against failure to give consent or the giving of qualified consent) for the words “a magistrates' court” there were substituted the words “the Secretary of State”.

Defence to proceedings in respect of statutory nuisance

22.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(18) (summary proceedings by person aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows—

(a)that the nuisance relates to premises used by Railtrack for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works; and

(b)that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60 of the Control of Pollution Act 1974 or a consent given under section 61 or 65 of that Act.

(2) The following provisions of the Control of Pollution Act 1974, namely—

(a)section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990), and

(b)section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded),

shall not apply where the consent relates to the use of premises by Railtrack for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.

Miscellaneous

Planning permission: supplementary matters

23.—(1) Planning permission which is deemed by a direction under section 90(2A) of the Town and Country Planning Act 1990 to be granted in relation to works authorised by this Order shall be treated as specific planning permission for the purposes of section 264(3)(a) of that Act (cases in which land is to be treated as operational land for the purposes of that Act).

(2) In relation to the application of paragraph (3)(c) of the Schedule of the Form of Tree Preservation Order set out in the Second Schedule to the Town and Country Planning (Tree Preservation Order) Regulations 1969(19) as incorporated in any tree preservation order, any direction under section 90(2A) of the Town and Country Planning Act 1990 deeming planning permission to be granted in relation to works authorised by this Order shall be treated as deeming the permission to have been granted on application made under Part III of that Act for the purposes of that Part.

Saving for regulated rights etc.

24.  Nothing in this Order shall affect any estate, right or interest granted by Railtrack in respect of a railway facility which is subject to an access contract within the meaning of Part I of the Railways Act 1993(20).

Statutory undertakers etc.

25.  The provisions of Schedule 4 to this Order shall have effect.

Protective provisions

26.  The provisions of Schedule 5 to this Order shall have effect.

Certification of plans etc.

27.  Railtrack shall, as soon as practicable after the making of this Order, submit copies of the book of reference, the deposited sections and the deposited plans to the Secretary of State for certification that they are true copies, respectively, of the book of reference, deposited sections and deposited plans, referred to in this Order; and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.

Maintenance of approved works etc.

28.—(1) Where pursuant to regulations made under section 41 of the Transport and Works Act 1992 (approval of works, plant and equipment) approval has been obtained from the Health and Safety Executive with respect to any works, plant or equipment (including vehicles) forming part of the railways authorised by this Order, such works, plant and equipment shall not be used in a state or condition other than that in which they were at the time that the approval was given unless any change thereto does not materially impair the safe operation of the railways so authorised.

(2) If without reasonable cause the provisions of paragraph (1) above are contravened, Railtrack shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) No proceedings shall be instituted in England and Wales in respect of an offence under this article except by or with the consent of the Health and Safety Executive or the Director of Public Prosecutions.

Service of notices

29.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served by post.

(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.

(3) For the purposes of section 7 of the Interpretation Act 1978(21) as it applies for the purposes of this article, the proper address of any person in relation to the service on him of a notice or document under paragraph (1) above is, if he has given an address for service, that address, and otherwise—

(a)in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and

(b)in any other case, his last known address at the time of service.

(4) Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and his name or address cannot be ascertained after reasonable enquiry, the notice may be served by—

(a)addressing it to him by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it), and

(b)either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.

(5) This article shall not be taken to exclude the employment of any method of service not expressly provided for by it.

No double recovery

30.  Compensation shall not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.

Arbitration

31.  Any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Civil Engineers.

SCHEDULES

Articles 2(1) and 4

SCHEDULE 1THE SCHEDULED WORKS

In this Schedule references to “the Catford Loop Lines” are to the railway between Nunhead and Shortlands and references to “the Chatham Main Lines”, “the Chatham Lines”, “the Chatham Fast Line” and “the Chatham Slow Line” are to the railway between London Victoria and Chatham.

In the London Borough of Bromley—

• Work No. 1—A railway (1,045 metres in length) commencing by a junction with the Catford Loop Lines at a point 343 metres north of the northern side of the bridge (number 490) carrying Downs Hill over that railway, passing southwards beneath that road, then passing through a reinforced concrete tunnel box under the Chatham Lines between Beckenham Junction and Shortlands Stations and terminating by a junction with the up Chatham Fast Line at Shortlands Station at a point 61 metres south-east of the southern side of the bridge (number 55) carrying that up fast line over Beckenham Lane, including the said tunnel box and the provision of a reinforced concrete box at the western end of the said bridge carrying Downs Hill so as to carry the railway under that road.

• Work No. 1A—A railway (302 metres in length), forming a connection between Work No. 1 and the down Chatham Fast Line, commencing by a junction with Work No.1 at a point 232 metres north-west of the western side of the bridge (number 55) carrying the said down fast line over Beckenham Lane, passing south-eastwards and terminating by a junction with that down fast line at Shortlands Station at a point 53 metres south-east of the southern side of the said bridge number 55.

• Work No. 2—A railway (442 metres in length), being a realignment of the Catford Loop Lines, commencing by a junction with Work No.1 at a point 10 metres south-east of its commencement, passing southwards beneath Downs Hill, and terminating by a junction with the Catford Loop Lines at a point 97 metres south-east of the southern side of the bridge (number 490) carrying Downs Hill over that railway.

• Work No. 3—A railway (690 metres in length), being a realignment of the Chatham Fast Lines between Beckenham Junction and Shortlands Stations, commencing by a junction with the Chatham Main Lines at a point 6 metres east of the eastern side of the bridge (number 54) carrying Downs Bridge Road over the said railway, passing eastwards then south-eastwards and terminating by a junction with Work No.1 at a point 4 metres north-west of the northern side of the bridge (number 55) carrying the up Chatham Fast Line over Beckenham Lane, including a subway under the railway to gain access for maintenance purposes.

• Work No. 4—A railway (401 metres in length), being a raising of the Chatham Slow Lines, commencing by a junction with the Chatham Main Lines at a point 6 metres east of the eastern side of the bridge (number 54) carrying Downs Bridge Road over the said railway, passing eastwards over the tunnel box comprised in Work No. 1 and terminating by a junction with the Chatham Slow Lines at a point 395 metres east of the eastern side of the said bridge number 54.

• Work No. 4A—A railway (357 metres in length), forming a connection between the up Chatham Slow Line and the down Chatham Fast Line, commencing by a junction with Work No. 4 at a point 359 metres east of the eastern side of the bridge (number 54) carrying Downs Bridge Road over the Chatham Lines, passing south-eastwards and terminating by a junction with Work No. 1A at a point 4 metres north-west of the bridge (number 55) carrying the down Chatham Fast Line over Beckenham Lane.

• Work No. 5A—An access road, including a reconstruction of the existing access to 31 Downs Hill, commencing at the junction of that access with Downs Hill, passing south-eastwards and terminating at a point 133 metres south-east of its commencement.

• Work No. 5B—An access road for construction purposes, commencing by a junction with the access road (Work No. 5A) at its commencement, passing southwards and terminating at a point 83 metres south of its commencement.

Article 15

SCHEDULE 2MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW RIGHTS

Compensation enactments

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land shall apply with the necessary modifications as respects compensation in the case of a compulsory acquisition under this Order of a right by the creation of a new right as they apply as respects compensation on the compulsory purchase of land and interests in land.

2.—(1) Without prejudice to the generality of paragraph 1 above, the Land Compensation Act 1973(22) shall have effect subject to the modifications set out in sub-paragraphs (2) and (3) below.

(2) In section 44(1) (compensation for injurious affection), as it applies to compensation for injurious affection under section 7 of the 1965 Act as substituted by paragraph 4 below—

(a)for the words “land is acquired or taken” there shall be substituted the words “a right over land is purchased”; and

(b)for the words “acquired or taken from him” there shall be substituted the words “over which the right is exercisable”.

(3) In section 58(1) (determination of material detriment where part of house etc. proposed for compulsory acquisition), as it applies to determinations under section 8 of the 1965 Act as substituted by paragraph 5 below—

(a)for the word “part” in paragraphs (a) and (b) there shall be substituted the words “a right over land consisting”;

(b)for the word “severance” there shall be substituted the words “right over the whole of the house, building or manufactory or of the house and the park or garden”;

(c)for the words “part proposed” there shall be substituted the words “right proposed”; and

(d)for the words “part is” there shall be substituted the words “right is”.

Adaptation of the 1965 Act

3.—(1) The 1965 Act shall have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are to be read (according to the requirements of the particular context) as referring to, or as including references to—

(a)the right acquired or to be acquired; or

(b)the land over which the right is or is to be exercisable.

(2) Without prejudice to the generality of sub-paragraph (1) above, Part I of the 1965 Act shall apply in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

4.  For section 7 of the 1965 Act (measure of compensation) there shall be substituted the following section—

In assessing the compensation to be paid by the acquiring authority under this Order regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.

5.  For section 8 of the 1965 Act (which relates to cases in which a vendor cannot be required to sell part only of a building or garden) there shall be substituted the following—

(1) Where in consequence of the service on a person under section 5 of this Act of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)—

(a)a question of disputed compensation in respect of the purchase of the right would apart from this section fall to be determined by the Lands Tribunal (“the tribunal”); and

(b)before the tribunal has determined that question the person satisfies the tribunal that he has an interest which he is able and willing to sell in the whole of the relevant land and—

(i)where that land consists of a house, building or manufactory, that the right cannot be purchased without material detriment to that land, or

(ii)where that land consists of such a park or garden, that the right cannot be purchased without seriously affecting the amenity or convenience of the house to which that land belongs,

the Railtrack (Shortlands Junction) Order 2001 (“the Order”) shall, in relation to that person, cease to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice shall be deemed to have been served in respect of that interest on such date as the tribunal directs.

(2) Any question as to the extent of the land in which the Order is deemed to authorise the purchase of an interest by virtue of subsection (1) of this section shall be determined by the tribunal.

(3) Where in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of six weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of the authority to withdraw the notice.”.

6.  The following provisions of the 1965 Act (which state the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land), that is to say—

(a)section 9(4) (failure by owners to convey),

(b)paragraph 10(3) of Schedule 1 (owners under incapacity),

(c)paragraph 2(3) of Schedule 2 (absent and untraced owners), and

(d)paragraphs 2(3) and 7(2) of Schedule 4 (common land),

shall be so modified as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.

7.  Section 11 of the 1965 Act (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority have served notice to treat in respect of any right, they have power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on warrant in the event of obstruction) of the 1965 Act shall be modified correspondingly.

8.  Section 20 of the 1965 Act (protection for interests of tenants at will etc.) shall apply with the modifications necessary to secure that persons with such interests in land as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition under this Order of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.

9.  Section 22 of the 1965 Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) shall be so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue to be entitled to exercise the right acquired, subject to compliance with that section as respects compensation.

Article 16

SCHEDULE 3LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Article 25

SCHEDULE 4STATUTORY UNDERTAKERS ETC.

Apparatus of statutory undertakers etc. on land acquired

1.  Sections 271 to 274 of the 1990 Act (power to extinguish rights of statutory undertakers, etc. and power of statutory undertakers, etc. to remove or re-site apparatus) shall apply in relation to any land acquired or appropriated by Railtrack under this Order subject to the following provisions of this paragraph; and all such other provisions of that Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly.

2.  In the provisions of the 1990 Act, as applied by paragraph 1 above, references to the appropriate Minister are references to the Secretary of State.

3.  Where any apparatus of public utility undertakers or of a public telecommunications operator is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act, as applied by paragraph 1 above, any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from Railtrack compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

4.  Paragraph 3 above shall not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

(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 Railtrack 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 paragraph 1 above, as applied by that paragraph, shall not have effect in relation to apparatus as respects which Part III of the Street Works Act applies.

6.  In this Schedule—

“the 1990 Act” means the Town and Country Planning Act 1990(23);

“public telecommunications operator” means—

“public utility undertakers” has the same meaning as in the Highways Act 1980(25).

Article 26

SCHEDULE 5PROTECTIVE PROVISIONS

Part IProtection for electricity, gas and water undertakers

1.—(1) For the protection of the undertakers referred to in this Part of this Schedule the following provisions shall, unless otherwise agreed in writing between Railtrack and the undertaker concerned, have effect.

(2) In this Part of this Schedule—

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

“apparatus” means—

• (not being apparatus in respect of which the relations between Railtrack and the undertakers are regulated by the provisions of Part III of the Street Works Act) and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

• “functions” includes powers and duties;

• “in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land; and

• “undertaker” means any licence holder within the meaning of Part I of the Electricity Act 1989, public gas transporter within the meaning of Part I of the Gas Act 1986(27) and water undertaker within the meaning of the Water Industry Act 1991(28); and, in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.

(3) The provisions of Schedule 4 to this Order shall not apply in relation to apparatus to which this Part of this Schedule applies.

2.  Notwithstanding the temporary stopping up or diversion of any highway pursuant to article 10 of this Order, an undertaker shall be at liberty at all times to execute and do all such works and things in, upon or under any such highway as may be reasonably necessary or desirable to enable it to maintain or use any apparatus which at the time of the stopping up or diversion was in that highway.

3.  Notwithstanding anything in this Order or shown on the deposited plans Railtrack shall not acquire any apparatus otherwise than by agreement.

4.—(1) If, in the exercise of the powers of this Order, Railtrack acquire any interest in any land in which any apparatus is placed, that apparatus shall not be removed under this Part of this Schedule and any right of an undertaker to maintain that apparatus in that land shall not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker in question.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, Railtrack require the removal of any apparatus placed in that land, they shall give to the undertaker in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers of this Order an undertaker reasonably needs to remove any of its apparatus) Railtrack shall, subject to sub-paragraph (3) below, afford to the undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of Railtrack and thereafter for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of Railtrack, or Railtrack are unable to afford such facilities and rights as are mentioned in sub-paragraph (2) above, in the land in which the alternative apparatus or part of such apparatus is to be constructed, the undertaker in question shall, on receipt of a written notice to that effect from Railtrack, forthwith use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of Railtrack under this Part of this Schedule shall be constructed in such manner and in such line or situation as may be agreed between the undertaker in question and Railtrack or in default of agreement settled by arbitration pursuant to article 31.

(5) The undertaker in question shall, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 31 above, and after the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3) above, proceed with all reasonable dispatch to construct and bring into operation the alternative apparatus and thereafter to remove any apparatus required by Railtrack to be removed under the provisions of this Part of this Schedule.

(6) Notwithstanding anything in sub-paragraph (5) above, if Railtrack give notice in writing to the undertaker in question that they desire themselves to execute 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 will take place in any land of Railtrack, that work, in lieu of being executed by the undertaker, shall be executed by Railtrack with all reasonable dispatch under the superintendence, if given, and to the reasonable satisfaction of the undertaker.

(7) Nothing in sub-paragraph (6) above shall authorise Railtrack to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

5.—(1) Where, in accordance with the provisions of this Part of this Schedule, Railtrack afford to an undertaker facilities and rights for the construction, and maintenance, in land of Railtrack of alternative apparatus in substitution for apparatus to be removed, those facilities and rights shall be granted upon such terms and conditions as may be agreed between Railtrack and the undertaker in question or in default of agreement settled by arbitration in accordance with article 31 above.

(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along any railway of Railtrack, the arbitrator shall—

(a)give effect to all reasonable requirements of Railtrack for ensuring the safety and efficient operation of the railway and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of Railtrack or the traffic on the railway; and

(b)so far as it may be reasonable and practicable to do so in the circumstances of the particular case, give effect to the terms and conditions applicable to the apparatus, if any, constructed in or along the railway for which the alternative apparatus is to be substituted.

(3) If the facilities and rights to be afforded by Railtrack 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 the arbitrator less favourable on the whole to the undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator shall make such provision for the payment of compensation by Railtrack to that undertaker as appears to him to be reasonable having regard to all the circumstances of the particular case.

6.—(1) Not less than 28 days before commencing the execution of any works of the type referred to in paragraph 4(2) above that are near to, or will or may affect, any apparatus the removal of which has not been required by Railtrack under paragraph 4(2), Railtrack shall submit to the undertaker in question a plan, section and description of the works to be executed.

(2) Those works shall be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) above and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) below by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access thereto, and the undertaker shall be entitled by its officer to watch and inspect the execution of those works.

(3) Any requirements made by an undertaker under paragraph (2) above shall be made within a period of 21 days beginning with the date on which a plan, section and description under paragraph (1) above are submitted to it.

(4) If an undertaker in accordance with sub-paragraph (3) above and in consequence of the works proposed by Railtrack, reasonably require the removal of any apparatus and give written notice to Railtrack of that requirement, the foregoing provisions of this Part of this Schedule shall apply as if the removal of the apparatus had been required by Railtrack under paragraph 4(2) above.

(5) Nothing in this paragraph shall preclude Railtrack from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description in lieu of the plan, section and description previously submitted, and thereupon the provisions of this paragraph shall apply to and in respect of the new plan, section and description.

(6) Railtrack shall not be required to comply with sub-paragraph (1) above in a case of emergency but in that case it shall give to the undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable thereafter and shall comply with sub-paragraph (2) above in so far as is reasonably practicable in the circumstances.

7.—(1) Subject to the following provisions of this paragraph, Railtrack shall repay to an undertaker the reasonable expenses incurred by that undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus which may be required in consequence of the execution of any such works as are referred to in paragraph 4(2) above.

(2) There shall be deducted from any sum payable under sub-paragraph (1) above the value of any apparatus removed under the provisions of this Part of this Schedule, that value being calculated after removal.

(3) If in pursuance of the provisions of this Part of this Schedule—

(a)apparatus of better type, of greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, or

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

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 Railtrack or, in default of agreement, is not determined by arbitration to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule exceeding that which would 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 paragraph would be payable to the undertaker in question by virtue of sub-paragraph (1) above, shall be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph (3) above—

(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; 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 so determined.

(5) An amount which apart from this sub-paragraph would be payable to an undertaker in respect of works by virtue of sub-paragraph (1) above shall, if the works include the placing of apparatus provided in substitution for apparatus 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 apparatus in the ordinary course, be reduced by the amount which represents that benefit.

8.—(1) Subject to sub-paragraphs (2) and (3) below, if by reason or in consequence of the construction of any such works as are referred to in paragraph 4(2) above, 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 an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, Railtrack shall—

(a)bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply, and

(b)make reasonable compensation to that undertaker for any other expenses, loss, damages, penalty or costs incurred by, the undertaker,

by reason or in consequence of any such damage or interruption.

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

(3) An undertaker shall give Railtrack reasonable notice of any such claim or demand and no settlement or compromise shall be made without the consent of the 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.

9.  Nothing in this Part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between Railtrack and an undertaker in respect of any apparatus laid or erected in land belonging to Railtrack on the date on which this Order is made.

Part IIProtection for telecommunications operators

1.—(1) For the protection of telecommunications operators the following provisions shall, unless otherwise agreed in writing between Railtrack and the telecommunications operators concerned, have effect.

(2) In this Part of this Schedule expressions defined in the Telecommunications Act 1984(29) have the same meanings as in that Act.

2.  The temporary stopping up or diversion of any highway under article 10 of this Order shall not affect any right of a telecommunications operator under paragraph 9 of the telecommunications code to inspect or maintain any apparatus which, at the time of the stopping up or diversion, is in that highway.

Part IIIProtection for sewerage undertakers

1.—(1) For the protection of sewerage undertakers the following provisions shall, unless otherwise agreed in writing between Railtrack and the sewerage undertaker concerned, have effect.

(2) In this Part of this Schedule—

• “construction” includes placing or altering; and “constructed” shall be construed accordingly;

• “sewer” means a public sewer within the meaning of the Water Industry Act 1991(30) and includes a disposal main within the meaning of that Act and any manholes, ventilating shafts, pumps or accessories forming part of any such sewer;

• “specified work” means so much of the 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 4 to this Order shall not apply in relation to apparatus to which this Part of this Schedule applies.

2.—(1) Before commencing the construction or renewal of any specified work, and in the case of any temporary work its removal, Railtrack shall submit to the undertaker plans for those works as described in sub-paragraph (2) below (“the plans”) and shall not commence that work until the undertaker has signified in writing its approval of those plans.

(2) 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 Railtrack may propose to any such sewers.

(3) For the purpose of the preparation of the plans and subject to such reasonable requirements as it may specify, the undertaker shall permit Railtrack to have access to plans in its possession and to any of its sewers.

(4) Any approval of the undertaker required under this paragraph—

(a)may be given subject to reasonable conditions,

(b)shall not be unreasonably withheld,

(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.

(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.

3.—(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, or settled by arbitration, as the same may be amended from time to time by agreement between Railtrack and the undertaker, and in the construction or removal of the specified work Railtrack 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) above, 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 of such works, or in such supervision, shall be paid to the undertaker by Railtrack.

(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.

4.—(1) Subject to the following provisions of this Part of this Schedule, Railtrack 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 relation to any specified works 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 or any new, altered or substituted sewer which may be necessary in consequence of the construction of any specified work.

(2) Railtrack 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 a specified work or of the failure or want of repair of a specified work or any subsidence cause by the construction of any specified work or in consequence of any act or omission of Railtrack, their contractors, agents, workmen or servants, whilst engaged upon the specified work and any new, altered or substituted sewer or any protective work.

(3) The undertaker shall give to Railtrack reasonable notice of any such claim or demand as aforesaid and no settlement or comprise thereof shall be made without the agreement in writing of Railtrack.

(4) Nothing in sub-paragraph (1) or (2) above shall impose any liability on Railtrack 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 Railtrack, 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 is 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 Railtrack or, in default of agreement, is not determined by arbitration to be necessary, then, if it involves cost 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) above shall be reduced by the amount of that excess.

(6) For the purposes of sub-paragraph (5) above 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) above (and having regard, where relevant, to sub-paragraph (5) above) 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) above 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 Railtrack and the undertaker in such proportions as may be prescribed by any such regulations.

5.—(1) An officer of the undertaker duly appointed for the purpose may, at any reasonable time and, if required by Railtrack, under their 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 Railtrack, its contractors or agents) exonerate Railtrack from any liability or affect any claim for damages by the undertaker.

6.  Notwithstanding the temporary stopping up or diversion of any highway under the powers of article 10 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, protect, or use any sewer which at the time of the stopping up or diversion was in that highway.

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

Explanatory Note

(This note is not part of the Order)

This Order makes provision for the construction of railways and other works, and acquisition of land and rights, in connection with the Shortlands Junction Grade Separation scheme in the London Borough of Bromley.

A copy of the deposited plans, the deposited sections and the book of reference referred to in this Order may be inspected at the offices of the Company Secretary & Solicitor to Railtrack PLC, Railtrack House, Euston Square, London NW1 3EE.