The Chester Guided Busway Order 2002

PART IPRELIMINARY

Citation and commencement

1.  This Order may be cited as the Chester Guided Busway Order 2002 and shall come into force on 14th March 2002.

Interpretation

2.—(1) In this Order—

“the 1965 Act” means the Compulsory Purchase Act 1965(1);

“the 1984 Act” means the Road Traffic Regulation Act 1984(2);

“the 1991 Act” means the New Roads and Street Works Act 1991(3);

“authorised guided busway” means any guided busway authorised by this Order;

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

“busway system” has the meaning given in article 24 of this Order;

“the book of reference” means the book of reference certified by the Secretary of State as the book of reference for the purposes of this Order;

“carriageway” has the same meaning as in the Highways Act 1980(4);

“the Council” means Cheshire County Council;

“the deposited sections” means the sections certified by the Secretary of State as the deposited sections for the purposes of this Order;

“guided bus” means a vehicle intended for the carriage of passengers guided by the mode of guidance prescribed for the purposes of section 1(1)(d) of the 1992 Act by article 2(h) of the Transport and Works (Guided Transport Modes) Order 1992(5) (track based with side guidance) (whether or not capable of being operated in some other way), and “guided busway” means a way providing the mode of guidance so prescribed;

“highway” and “highway authority” have the same meaning as in the Highways Act 1980;

“the land plans” means the plans certified by the Secretary of State as the land plans for the purposes of this Order;

“the limits of deviation” means the limits of deviation shown on the works plans;

“the limits of land to be acquired” means the limits of land to be acquired shown on the land plans;

“the limits of widening” means the limits of widening shown on the works plans;

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

“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;

“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 1991 Act;

“the tribunal” means the Lands Tribunal; and

“the works plans” means the plans certified by the Secretary of State as the works plans for the purposes of this Order.

(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, and references to the subsoil of any land include references to any cellar, basement, vault, arch or other construction forming part of any such land.

(3) All directions, distances, areas, lengths and points 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, area, length and point, and distances between points on the authorised guided busway shall be taken to be measured along the centre line of the busway.

(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.

(5) References in this Order to points identified by letters shall be construed as references to the points so marked on the works plans.

(6) For the purposes of any enactment applying, or operating by reference to, the definition of “public service vehicle” in section 1 of the Public Passenger Vehicles Act 1981(6), that definition shall be taken to include guided buses operating a service making use of the authorised guided busway.

Application of the New Roads and Street Works Act 1991

3.—(1) Works executed under this Order in relation to a highway which consists of or includes a carriageway shall be treated for the purposes of Part III of the 1991 Act (street works) as major highway works if—

(a)they are of a description mentioned in any of paragraphs (a) and (c) to (h) of section 86(3) of that Act (which defines what highway authority works are major highway works); or

(b)they are works which, had they been executed by the highway authority, might have been carried out in exercise of the powers conferred by section 64 of the Highways Act 1980 (dual carriageways and roundabouts).

(2) In Part III of the 1991 Act, references, in relation to major highway works, to the highway authority concerned shall, in relation to works which are major highway works by virtue of sub-paragraph (1), be construed as references to the Council.

PART IIWORKS PROVISIONS

Principal powers

Power to construct and maintain works

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

(2) Subject to article 5, the scheduled works shall be constructed in the lines or situations shown on the works plans and in accordance with the levels shown on the deposited sections.

(3) Subject to paragraph (6), the Council may carry out and maintain such of the following works 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)stopping places;

(b)works required for, or in connection with, the control of any vehicular and pedestrian traffic on the authorised guided busway;

(c)works for the alteration or demolition of any building or structure;

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

(e)works to alter the position of any street furniture or apparatus including mains, sewers, drains and cables; and

(f)landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised works, including works for the re-siting or protection of any footpath or cycle route which may (upon construction of the authorised works) have been constructed along the course of the former Mickle Trafford to Shotton railway, and other works for the benefit or protection of premises affected by the authorised works.

(4) Subject to paragraph (6), the Council may carry out 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 scheduled works.

(5) Where the Council lays down conduits for the accommodation of cables or other apparatus for the purposes of the authorised works or associated traffic control, it may provide in, or in connection with, such conduits accommodation for the apparatus of any other person, and manholes and other facilities for access to such accommodation, and may permit the use of such conduits and facilities on such terms and conditions as may be agreed between it and such other person.

(6) Paragraphs (3) and (4) shall only authorise the carrying out or maintenance of works within the limits of land to be acquired.

Power to deviate

5.  In constructing or maintaining any scheduled work, the Council may—

(a)except in relation to Work No. 1B, deviate laterally from the lines or situations shown on the works plans within the limits of deviation for that work;

(b)in relation to Work No. 1B, construct the works within the limits of widening for that work; and

(c)deviate vertically from the levels shown on the deposited sections to any extent not exceeding 3 metres upwards or downwards.

Streets

Power to alter layout of streets

6.—(1) The Council may alter the layout of any street in the City of Chester specified in column (1) of Schedule 3 to this Order in the manner specified in relation to that street in column (2) of that Schedule.

(2) Without prejudice to the powers conferred by article 4 or paragraph (1) but subject to paragraph (3), the Council may for the purpose of constructing, maintaining or using the authorised guided busway alter the layout of any street within the limits of land to be acquired; and, without prejudice to the generality of the foregoing, the Council may—

(a)increase the width of the carriageway of the street by reducing the width of any kerb, footpath, footway, cycle track or verge within the street;

(b)alter the level or increase the width of any kerb, footpath, footway, cycle track or verge;

(c)reduce the width of the carriageway of the street by forming a reserved area in the street as a stopping place for buses or by carrying out other works; and

(d)carry out works for the provision or alteration of parking places and bus lay-bys.

(3) The powers in paragraph (2) shall not be exercised without the consent of the street authority, but such consent shall not be unreasonably withheld.

Power to keep apparatus in streets

7.—(1) The Council may, for the purposes of or in connection with the construction, maintenance and use of the authorised works, place and maintain in any street within the limits of land to be acquired any work, equipment or apparatus.

(2) In this article—

(a)“apparatus” has the same meaning as in Part III of the 1991 Act, and

(b)the reference to any work, equipment or apparatus in a street includes a reference to any work, equipment or apparatus under, over, along or upon the street.

Power to execute street works

8.  The Council may, for the purpose of exercising the powers conferred by article 7 and the other provisions of this Order, enter upon any street within the limits of land to be acquired and execute any works required for or incidental to the exercise of those powers including, without prejudice to the generality of the foregoing, breaking up or opening the street, or any sewer, drain or tunnel under it, or tunnelling or boring under the street.

Temporary stopping up of streets

9.—(1) The Council may, during and for the purposes of the execution of the authorised works, temporarily stop up, alter or divert any street and may for any reasonable time—

(a)divert the traffic from the street, and

(b)subject to paragraph (2), prevent all persons from passing along the street.

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

(3) The Council shall not exercise the powers of this article in relation to any street without the consent of the street authority, but such consent shall not be unreasonably withheld.

(4) In relation to any stopping up, alteration or diversion of a street by the Council under the powers conferred by this article, the provisions of the 1991 Act mentioned in paragraph (5), and any regulations made, or code of practice issued or approved under those provisions, shall apply (with the necessary modifications) where no street works are executed in that street as they would apply if the stopping up, alteration or diversion were occasioned by street works executed in that street by the Council.

(5) The provisions of the 1991 Act referred to in paragraph (4) 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.

Maintenance of altered streets

10.—(1) Where a street is altered under this Order, the altered part of the street shall when completed to the reasonable satisfaction of the street authority, unless otherwise agreed, be maintained by and at the expense of the Council for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

(2) Nothing in this article shall prejudice the operation of section 87 of the 1991 Act (prospectively maintainable highways); and the Council shall not by reason of any duty under this article to maintain a street be taken to be the street authority in relation to that street for the purposes of Part III of that Act.

(3) Nothing in this article shall have effect in relation to the street works as respects which the provisions of Part III of the 1991 Act apply.

Agreements with street authorities

11.—(1) A street authority and the Council may enter into agreements with respect to—

(a)any stopping up, alteration or diversion of a street under the powers conferred by this Order; and

(b)the execution in the street of any of the works referred to in article 8.

(2) Such an agreement may, without prejudice to the generality of paragraph (1)—

(a)make provision for the street authority to carry out any function under this Order which relates to the street in question; and

(b)contain such terms as to payment and otherwise as the parties consider appropriate.

Supplemental powers

Discharge of water

12.—(1) The Council 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 on any land within the limits of land to be acquired lay down, take up and alter pipes and make openings into, and connections with, the watercourse, sewer or drain.

(2) The Council 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) The Council 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) The Council shall take such steps as are reasonably practicable to secure that any water discharged 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.

(5) 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(7).

(6) 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 or a local authority;

(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.

Power to survey and investigate land

13.—(1) The Council may for the purposes of this Order—

(a)survey or investigate any land within the limits of land to be acquired;

(b)without prejudice to the generality of sub-paragraph (a), make trial holes in such positions as the Council thinks fit on the land described in sub-paragraph (a) (in this particular article referred to as “the 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), carry out archaeological investigations on the land;

(d)place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of the land and making of trial holes under sub-paragraphs (a) to (c); and

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

(2) No land may be entered, or equipment placed or left on or removed from the land under paragraph (1), 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 the Council—

(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) The Council 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 Land Compensation Act 1961(8).

Planning permission : supplementary matters

14.—(1) In relation to the application of paragraph (3)(c) of the Second Schedule of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Tree Preservation Order) Regulations 1969(9) (including that paragraph as applied by regulation 3(ii) of the Town and Country Planning (Tree Preservation Order) (Amendment) and (Trees in Conservation Areas) (Exempted Cases) Regulations 1975(10), or as incorporated in any tree preservation order), any direction under section 90(2A) of the Town and Country Planning Act 1990(11) 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.

(2) In relation to the application of article 5(1)(d) of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Trees) Regulations 1999(12) as incorporated in any tree preservation order or as having effect by virtue of regulation 10(1)(a) of those Regulations, 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 not be treated as an outline planning permission.

(3) 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).

PART IIIACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land

15.—(1) Subject to paragraph (2) of this article and paragraph 3 of Part VII of Schedule 6 to this Order, the Council may acquire compulsorily—

(a)so much of the land within the limits of land to be acquired and described in the book of reference as may be required for or in connection with the authorised works; and

(b)without prejudice to the generality of sub-paragraph (a), so much of the land specified in column (1) of Schedule 2 to this Order (being land shown on the land plans and described in the book of reference) as may be required for the purpose specified in relation to that land in column (2) of that Schedule,

and may use any land so acquired for those purposes or for any other purposes connected with or ancillary to the busway system.

(2) This article does not authorise the acquisition of the land in the City of Chester comprising plot nos. 14 and 23 on the land plans.

Application of Compulsory Purchase (Vesting Declarations) Act 1981

16.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(13) shall apply as if this Order were a compulsory purchase order.

(2) In its application by virtue of paragraph (1), the Compulsory Purchase (Vesting Declarations) Act 1981 shall have effect with the following modifications.

(3) In section 3 (preliminary notices), for subsection (1) there shall be substituted—

“(1) Before making a declaration under section 4 below with respect to any land which is subject to a compulsory purchase order the acquiring authority shall include the particulars specified in subsection (3) below in a notice which is—

(a)given to every person with a relevant interest in the land with respect to which the declaration is to be made (other than a mortgagee who is not in possession), and

(b)published in the London Gazette and in one or more local newspapers circulating in the locality of the authorised works.”

(4) In that section, in subsection (2), for “(1)(b)” there shall be substituted “(1)” and after “given” there shall be inserted “and published”.

(5) In that section, subsections (5) and (6) shall be omitted and at the end there shall be inserted—

“(5) For the purposes of this section, a person has a relevant interest in land if—

(a)he is for the time being entitled to dispose of the fee simple of the land, whether in possession or reversion; or

(b)he holds, or is entitled to the rents and profits of, the land under a lease or agreement, the unexpired term of which exceeds one month.”

(6) In section 5 (earliest date for execution of declaration)—

(a)in subsection (1), after “publication” there shall be inserted “in the London Gazette and in one or more local newspapers circulating in the locality of the authorised works”; and

(b)subsection (2) shall be omitted.

(7) In section 7 (constructive notice to treat) in subsection (1)(a), the words “(as modified by section 4 of the Acquisition of Land Act 1981)”(14) shall be omitted.

(8) References to the Compulsory Purchase Act 1965 shall be construed as references to that Act as applied to the acquisition of land under article 17.

Application of Part I of the Compulsory Purchase Act 1965

17.—(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 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—

(a)section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provision as to the giving of bonds) were omitted; and

(b)in section 11(1) (which confers power to enter on and to take possession of land subject to a notice to treat on giving not less than 14 days' notice) for the reference to 14 days' notice there were substituted—

(i)in a case where the notice to treat relates only to the acquisition of subsoil or the acquisition of an easement or other right over the land, a reference to notice of one month; or

(ii)in any other case, a reference to notice of 3 months.

Powers to acquire new rights

18.—(1) The Council may compulsorily acquire such easements or other rights over any land referred to in paragraph (1) of article 15 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) Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 4 to this Order), where the Council acquires a right over land under paragraph (1) the Council shall not be required to acquire a greater interest in it.

(3) Schedule 4 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.

Rights in streets

19.—(1) The Council may enter upon and appropriate so much of the subsoil of, or air-space over, any street within the limits of land to be acquired as may be required for the purposes of the authorised works and may use the subsoil or air-space for those purposes or any other purpose connected with or ancillary to the busway system.

(2) The power under paragraph (1) may be exercised in relation to a street without the Council being required to acquire any part of the street or any easement or right in the street.

(3) Any person, who is an owner or occupier of land in respect of which the power of appropriation conferred by paragraph (1) is exercised without the Council acquiring any part of that person’s interest in the land and who suffers loss by the exercise of that power, shall be entitled to compensation to be determined, in case of dispute, under Part I of the Land Compensation Act 1961.

(4) Paragraph (2) shall not apply in relation to—

(a)any subway or underground building, or

(b)any cellar, vault, arch or other construction in or on a street which forms part of a building fronting onto the street.

(5) For the avoidance of doubt, the powers given by articles 6, 7 and 8 shall, where their exercise requires appropriation and use of sub-soil or air-space under this article or the acquisition of land or a right in land, be limited to the limits of land to be acquired.

Compensation

Disregard of certain interests and improvements

20.—(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) “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 of certain properties

21.—(1) This article shall apply instead of section 8(1) of the 1965 Act (as applied by article 17) 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 the Council 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 the Council agrees to take the land subject to the counter-notice, be referred to the tribunal.

(5) If on such a reference the tribunal determines 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 determines 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 determines 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 the Council is authorised to acquire compulsorily under this Order.

(8) If the Council agrees to take the land subject to the counter-notice, or if the tribunal determines 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 the Council 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, the Council 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 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, the Council 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 of private rights of way

22.—(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 the Council, whether compulsorily or by agreement; or

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

whichever is sooner.

(2) Any person who suffers loss by the extinguishment 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 Land Compensation Act 1961.

(3) 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 (extinguishment of rights of statutory undertakers etc.) applies.

Time limit for exercise of powers of acquisition

23.  After the end of the period of 5 years beginning with the day on which this Order comes into force—

(a)no notice to treat shall be served under Part I of the 1965 Act, as applied to the acquisition of land by article 17; and

(b)no declaration shall be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981, as applied by article 16.

PART IVOPERATION OF BUSWAY SYSTEM

Power to operate and use busway system

24.—(1) The Council may operate and use the authorised guided busway and the other authorised works as a system, or part of a system, of transport for the carriage of passengers and goods (which system is in this Order referred to as “the busway system”).

(2) Subject to paragraph (4) and to article 32, the Council shall, for the purpose of operating the authorised guided busway, have the exclusive right to use the authorised guided busway and any apparatus used for the operation of that busway.

(3) Any person who, without the consent of the Council or other reasonable excuse, uses the authorised guided busway or the apparatus mentioned in paragraph (2) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(4) Nothing in this article shall restrict the exercise of any public right of way over any part of a street in which apparatus is situated in pursuance of paragraph (2) except to the extent that the exercise of the right is constrained by the presence of the apparatus.

Maintenance of approved works etc.

25.—(1) Where pursuant to regulations made under section 41 of the 1992 Act (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 authorised guided busway, 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 authorised guided busway.

(2) If without reasonable cause the provisions of paragraph (1) are contravened, the Council 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.

Power to charge fares

26.  The Council may demand, take and recover or waive such charges for carrying passengers or goods on the busway system, or for any other services or facilities provided in connection with the operation of that system, as it thinks fit.

Traffic signs

27.—(1) The Council may, for the purposes of, or in connection with the operation of, the busway system, place or maintain traffic signs of a type prescribed by regulations made under section 64(1)(a) of the 1984 Act or of a character authorised by the Secretary of State on or near any street along which guided buses using the busway system are run.

(2) Unless in any case it is the traffic authority, the Council—

(a)shall consult the traffic authority as to the placing of signs, and

(b)unless the traffic authority are unwilling to do so and subject to any directions given under section 65 of the 1984 Act, shall enter into arrangements with the traffic authority for the signs to be placed and maintained by the traffic authority.

(3) Any power conferred by section 65 of the 1984 Act to give directions to a traffic authority or local traffic authority as to traffic signs shall include a power to give directions to the Council as to traffic signs under this article; and, accordingly, the powers conferred by paragraph (1) shall be exercisable subject to and in conformity with any directions given under that section.

(4) A traffic authority or other authority having power under or by virtue of the 1984 Act to place and maintain, or cause to be placed and maintained, traffic signs on or near any street along which the busway system is run shall consult with the Council as to the placing of any traffic sign which would affect the operation of the busway system.

(5) Expressions used in this article and in the 1984 Act shall have the same meaning in this article as in that Act.

Power to fell or lop trees

28.—(1) The council may fell or lop any tree or shrub near any part of the authorised guided busway (or land proposed to be used for that busway), or cut back its roots, if it reasonably believes it to be necessary to do so to prevent the tree or shrub—

(a)from obstructing or interfering with the construction, maintenance or operation of the authorised guided busway or any apparatus used for the purposes of the authorised guided busway; or

(b)from constituting a danger to passengers or other persons using the authorised guided busway.

(2) In exercising the powers in paragraph (1), the Council shall do no unnecessary damage to any tree or shrub and shall pay compensation to any person for any loss or damage arising from the exercise of those powers.

(3) Any dispute as to a person’s entitlement to compensation under paragraph (2), or as to the amount of the compensation, shall be determined under Part I of the Land Compensation Act 1961.

(4) The following, namely—

(a)an order under section 198(1) of the Town and Country Planning Act 1990 (tree preservation orders); and

(b)section 211(1) of that Act (which prohibits the doing in a conservation area of any act which might be prohibited by a tree preservation order),

shall not apply to any exercise of the powers in paragraph (1).

Obstruction of construction of busway

29.  Any person who, without reasonable excuse, obstructs another person from constructing the authorised guided busway or any other authorised work under the powers conferred by this Order shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

Power to make byelaws

30.—(1) The Council may make byelaws regulating the use and operation of, and travel on, the busway system, the maintenance of order on the busway system (including busway premises or other facilities provided in connection with the busway system) and the conduct of all persons including employees of the Council on busway premises.

(2) Without prejudice to the generality of paragraph (1), byelaws under this article may make provision—

(a)with respect to tickets issued for travel on the busway system, the payment of fares and charges and the evasion of payment of fares and charges;

(b)with respect to interference with, or obstruction of, the operation of the busway system or other facilities provided in connection with the busway system including provision for the recovery of the costs involved in removing such an obstruction or interference;

(c)with respect to the prevention of nuisances or trespass on the busway system;

(d)for regulating the passage of bicycles and other vehicles on ways and other places intended for the use of persons on foot within busway premises;

(e)for the safe custody and re-delivery or disposal of any property left on busway premises and for fixing the charges made in respect of any such property; and

(f)for prohibiting or restricting the placing or leaving of any vehicle without its driver on any part of the authorised guided busway or on busway premises.

(3) In paragraphs (1) and (2) references to “busway premises” are references to premises of the Council used for or in connection with the operation of the busway system and include car parks intended to be used in connection with the busway system but do not include references to the inside of a guided bus or premises within the boundary of a highway.

(4) Byelaws under this article may provide for it to be an offence for a person to contravene, or to fail to comply with, a provision of the byelaws and for such a person to be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) Without prejudice to the taking of proceedings for an offence included in byelaws by virtue of paragraph (4), if the contravention of, or failure to comply with, any byelaw under this article is attended with danger or annoyance to the public, or hindrance to the Council in the operation of the busway system, the Council may summarily take action to obviate or remove the danger, annoyance or hindrance.

(6) Byelaws under this article shall not come into operation until they have been confirmed by the Secretary of State.

(7) At least 28 days before applying for any byelaw to be confirmed under this article, the Council shall publish in such manner as may be approved by the Secretary of State a notice of its intention to apply for the byelaws to be confirmed and of the place at which and the time during which a copy of the byelaws will be open to public inspection; and any person affected by any of the byelaws may make representations on them to the Secretary of State within a period specified in the notice, being a period of not less than 28 days.

(8) For at least 24 days before an application is made under this article for byelaws to be confirmed, a copy of the byelaws shall be kept at the principal office of the Council and shall at all reasonable hours be open to public inspection without payment.

(9) The Council shall, at the request of any person, supply him with a copy of any such byelaws on payment of such reasonable sum as the Council may determine.

(10) The Secretary of State may confirm with or without modification, or may refuse to confirm, any of the byelaws submitted under this article for confirmation and, as regards any byelaws so confirmed, may fix a date on which the byelaws shall come into operation; and if no date is so fixed the byelaws shall come into operation after the expiry of 28 days after the date on which they were confirmed.

(11) The Secretary of State may charge the Council such fees in respect of any byelaws submitted for confirmation under this article as he may consider appropriate for the purpose of defraying any administrative expenses incurred by him in connection therewith.

(12) A copy of the byelaws when confirmed shall be printed and deposited at the principal office of the Council and shall at all reasonable hours be open to public inspection without payment, and the Council shall, at the request of any person, supply him with a copy of any such byelaws on payment of such reasonable sum as the Council shall determine.

(13) The production of a printed copy of byelaws confirmed under this article on which is endorsed a certificate purporting to be signed by a person duly authorised by the Council stating—

(a)that the byelaws were made by the Council,

(b)that the copy is a true copy of the byelaws,

(c)that on a specified date the byelaws were confirmed by the Secretary of State, and

(d)the date when the byelaws came into operation,

shall be prima facie evidence of the facts stated in the certificate.

Power to contract for police services

31.—(1) Agreements may be made—

(a)between the Council and the chief officer of police of any police force and the police authority; or

(b)between the Council and the Strategic Rail Authority,

for making available to the Council for the purposes of the operation of its busway system the services of members of the police force or, as the case may be, members of the British Transport Police Force on such terms as to payment or otherwise, and subject to such conditions, as the parties to them think fit.

(2) In this article—

(a)“chief officer of police”, “police authority” and “police force” have the same meaning as in the Police Act 1964(15), and

(b)“the British Transport Police Force” means the force organised under the British Transport Police Scheme 1963(16).

Powers of disposal, agreements for operation, etc.

32.—(1) The Council may, with the consent of the Secretary of State, sell, lease, charge or otherwise dispose of, on such terms and conditions as it thinks fit, the whole or any part of the busway system or the right to operate the busway system under this Order.

(2) Without prejudice to the generality of paragraph (1), the Council may enter into and carry into effect agreements with respect to any of the following matters, namely, the construction, maintenance, use and operation of the busway system, or any part or parts of that system or of any works comprised in it, by any other person, and other matters incidental or subsidiary thereto or consequential thereon, and the defraying of, or the making of contributions towards, the cost of the matters aforesaid by the Council or any other person.

(3) Any agreement under this article may provide (inter alia) for the exercise of the powers of the Council under this Order by any other person and for the transfer to any person of the busway system or any part or parts thereof together with the rights and obligations of the Council in relation thereto.

(4) The exercise of the powers of any enactment (including this Order) by any person in pursuance of any sale, lease, charge or disposal under paragraph (1), or any agreement under this article, shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those powers were exercised by the Council.

(5) For the avoidance of doubt it is hereby declared that nothing in section 15(2) of the Transport Act 1968(17) (restriction on alteration of charges) shall apply in relation to the operation of the busway system by any person other than the Council, but this paragraph is without prejudice to any provision with respect to charges that may be made in an agreement under this article.

Application of Landlord and Tenant law

33.—(1) This article applies to any agreement for leasing to any person the whole or any part of the busway system or the right to operate the same, and any agreement entered into by the Council with any person for the construction, maintenance, use or operation of the busway system, or any part of that system, so far as any such agreement relates to the terms on which any land which is the subject of a lease granted by or under that agreement is to be provided for that person’s use.

(2) No enactment or rule of law regulating the rights and obligations of landlords and tenants shall prejudice the operation of any agreement to which this article applies.

(3) Accordingly no such enactment or rule of law shall apply in relation to the rights and obligations of the parties to any lease granted by or under any agreement so as to—

(a)exclude or in any respect modify any of the rights and obligations of those parties under the terms of the lease, whether with respect to the termination of the tenancy or any other matter;

(b)confer or impose on any such party any right or obligation arising out of or connected with anything done or omitted on or in relation to land which is the subject of the lease, in addition to any such right or obligation provided for by the terms of the lease; or

(c)restrict the enforcement (whether by action for damages or otherwise) by any party to the lease of any obligation of any other party under the lease.

Town and country planning

34.  The busway system shall be regarded as a road transport undertaking for the purposes of section 262(1) of the Town and Country Planning Act 1990 (meaning of “statutory undertakers”).

PART VMISCELLANEOUS AND GENERAL

Statutory undertakers etc.

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

Protection of interests

36.  The provisions of Schedule 6 to this Order shall have effect.

Application of existing enactments

37.—(1) In this article—

“the Board” means the British Railways Board;

“the former railway” means so much of the former Mickle Trafford to Shotton railway as is situated within the limits of deviation or the limits of land to be acquired;

“the relevant date” means—

(2) Except as may be otherwise provided in this Order, as from the relevant date the former railway or any part thereof shall continue to be subject to all statutory and other provisions applicable to the former railway, or any part thereof, at that date (in so far as the same are still subsisting and capable of taking effect) and the Council shall to the exclusion of the Board be entitled to the benefit of, and to exercise, all rights, powers and privileges and be subject to all obligations statutory or otherwise relating to the former railway (in so far as the same are still subsisting and capable of taking effect) to the intent that the Board as the case may be, shall be released from all such obligations.

(3) Section 31 (Provisions in relation to certain works within the City of Chester) of the Chester and West Cheshire Junction Railway Act 1865(18) shall cease to apply to the former railway.

(4) Any enactment by which the former railway was authorised shall have effect subject to the provisions of this Order.

Crown rights

38.—(1) Nothing in this Order affects prejudicially any estate, right, power, privilege or exemption of the Crown and in particular, and without prejudice to the generality of the foregoing, nothing in this Order shall authorise the Council or any other person to take, use, enter upon or in any manner interfere with any land or hereditament or any rights of whatsoever description belonging to Her Majesty in right of the Crown and under the management of the Crown Estate Commissioners without the consent in writing of those Commissioners.

(2) Consent under this article may be given unconditionally or subject to such terms or conditions as shall be considered necessary or appropriate.

Minerals

39.—(1) Parts II and III of Schedule 2 to the Acquisition of Land Act 1981 (exception of minerals from compulsory purchase and regulation of the working of mines or minerals underlying an authorised undertaking) shall have effect in relation to land to which article 15 applies as if it were comprised in a compulsory purchase order providing for the incorporation with that order of those parts of that Schedule.

(2) In their application by virtue of paragraph (1), Parts II and III of Schedule 2 to the Acquisition of Land Act 1981 shall have effect with the following modifications—

(a)references to the acquiring authority shall be construed as references to the Council; and

(b)references to the undertaking shall be construed as references to the undertaking which the Council is authorised by this Order to carry on.

Certification of plans etc.

40.  The Council shall, as soon as practicable after the making of this Order, submit one or more copies of the book of reference, the deposited sections and the land and works plans to the Secretary of State for certification that they are true copies of, respectively, the book of reference, the deposited sections and the land and works 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.

Service of notices

41.—(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 is 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(19) 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) 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

42.  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.

Disclosure of confidential information

43.  A person who—

(a)enters a factory, workshop or workplace in pursuance of the provisions of article 13; and

(b)discloses to any person any information obtained by him relating to any manufacturing process or trade secret,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale unless the disclosure is made in the course of performing his duty in connection with the purposes for which he was authorised to enter the land.

Arbitration

44.  Where under this Order any difference (other than a difference to which the provisions of the 1965 Act apply) is to be determined by or referred to arbitration, then, unless otherwise provided, the difference 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.

Withholding of consent

45.  Where it is provided in this Order that any consent or approval is not to be unreasonably withheld, any dispute as to whether it is unreasonably withheld or as to any conditions subject to which it is given shall be determined by arbitration.