The Leicestershire County Council (Ashby de la Zouch Canal Extension) Order 2005

PART 1PRELIMINARY

Citation and commencement

1.  This Order may be cited as the Leicestershire County Council (Ashby de la Zouch Canal Extension) Order 2005, and shall come into force on the day after the day on which it is made.

Interpretation

2.—(1) In this Order—

“the 1961 Act” means the Land Compensation Act 1961(1);

“the 1965 Act” means the Compulsory Purchase Act 1965(2);

“the 1990 Act” means the Town and Country Planning Act 1990(3);

“the 1991 Act” means the New Roads and Street Works Act 1991(4);

“apparatus” has the meaning given by section 48(5) of the 1991 Act;

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

“the Applications Rules” means the Transport and Works (Application and Objections Procedure) (England and Wales) Rules 2000;

“the Board” means the “British Waterways Board”;

“the Board’s canal” means the Ashby de la Zouch Canal, in so far as it belongs to or is under the management or control of the Board, and includes any works, lands or premises belonging to the Board, or under its management and control, and held or used by the Board in connection with the said canal, but does not include any part of the Canal;

“the book of reference” means the book of reference required to be submitted by the undertaker (being the applicant within the meaning of the Application Rules) pursuant to rules 10(4) and 12(7) of the Application Rules(5);

“the Canal” means the Ashby de la Zouch Canal Extension, comprising the works listed in the scheduled works and all works and conveniences provided in connection therewith and any lands held or used by the undertaker for the purposes thereof, and any reference to the Canal includes any part of it, but does not include any part of the Board’s canal;

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

“the land plans” means the plans required to be submitted by the undertaker pursuant to rules 10(4) and 12(5) of the Applications Rules;

“limits of deviation”, in relation to a work, means the limits of deviation shown on the works plans in relation to that work;

“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) or 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;

“the sections” means the sections required to be submitted under rules 10(3)(a) and 12(3) of the Applications Rules;

“street” includes part of a street, but does not include any towing path forming part of the Board’s canal;

“street authority” in relation to a street, has the same meaning as in Part III of the 1991 Act;

“the transfer date”, in relation to any transfer of the Canal or any part of it in accordance with article 29, means the date on which that transfer takes effect;

“the tribunal” means the Lands Tribunal;

“the undertaker” means Leicestershire County Council;

“vessel” includes any ship, boat, barge, lighter, or raft, and any other description of craft, whether used in navigation or not;

“watercourse” includes any river, stream, ditch, drain, cut, canal, culvert, dyke, sluice, sewer and passage through which water flows, whether or not the flow is intermittent, except a public sewer or drain; and

“the works plans” means the plans required to be submitted by the undertaker pursuant to rules 10(3)(a) and 12(1) of the Applications Rules.

(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) 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 described in Schedule 1 to this Order;

(4) References in this Order to points identified by letters, with or without numbers, shall be construed as references to the points so lettered on the land plans or works plans.

(5) All distances, cardinal points of the compass, heights above ordnance datum, levels, lengths and points stated in any description of the works or powers or lands contained in Schedules 1, 5 and 6 to this Order or shown on the land plans or sections or work plans shall be construed as if the words “or thereabouts” were inserted after each such distance, direction, height, length and point, and distances between points on a waterway shall be taken to be measured along the centre line of the channel of the waterway.

PART 2WORKS PROVISION

Power to construct works

3.—(1) The undertaker may construct and maintain the scheduled works.

(2) Subject to article 4, the scheduled works may only be constructed in the lines or situations shown on the works plans and in accordance with the levels shown on the sections.

(3) Subject to paragraph (5), the undertaker may carry out and maintain such of the following works as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the scheduled works, namely—

(a)works to alter the position of apparatus, including mains, sewers, drains and cables;

(b)works to alter the course of, or otherwise interfere with, a watercourse other than a navigable watercourse;

(c)works to connect the Canal to the Board’s canal;

(d)landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the scheduled works;

(e)works for the benefit or protection of premises affected by the scheduled works; and

(f)works for the strengthening, alteration, or demolition of any building or structure.

(4) Subject to paragraph (5), the undertaker may carry out such other works (of whatever nature) as may be necessary or expedient for the purposes of, or for purposes ancillary to, the construction of the scheduled works, other than works that would interfere with a navigable watercourse.

(5) Paragraphs (3) and (4) shall only authorise the carrying out or maintenance of works outside the limits of deviation if such works are carried out on land specified in Schedule 3 and subject to—

(a)the giving of 14 days' notice to owners and occupiers, or in the case of an emergency, as much notice as possible;

(b)restoring the condition of the land to that before the occupation; and

(c)paying compensation for loss of use of the land.

Power to deviate

4.  In constructing or maintaining any of the scheduled works, the undertaker may—

(a)deviate laterally from the lines or situations shown on the work plans within the limits of deviation; and

(b)deviate vertically from the levels shown on the sections—

(i)to any extent not exceeding 1 metre upwards; and

(ii)to any extent not exceeding 1 metre downwards.

Power to execute street works

5.  The undertaker may, for the purposes of the authorised works, enter upon the streets specified in Schedule 4 and may—

(a)break up or open the street, or any sewer, drain or tunnel under it, or tunnel or bore under the street;

(b)place apparatus in the street;

(c)maintain apparatus in the street or change its position; and

(d)execute any works required for or incidental to any works referred to in paragraph (a), (b) or (c).

Stopping up of streets

6.—(1) Subject to the provisions of this article, for the purpose of carrying out and operating the scheduled works, the undertaker may, in connection with the construction of the authorised works, stop up any street specified in Schedule 5, to the extent specified in relation to that street in that Schedule.

(2) No street specified in columns (1) and (2) of Schedule 5 (being a street to be stopped up for which a substitute is to be provided by way of a diversion) shall be wholly or partly stopped up under this article until the new street to be substituted for it, which is described as a diversion in column (4) of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use.

(3) Where a street has been stopped up under this article, all rights of way over or along the street so stopped up shall be extinguished.

Temporary stopping up of streets

7.—(1) The undertaker, during and for the purposes of the execution of the authorised works, may 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 undertaker shall provide reasonable access for pedestrians going to or from premises abutting a street affected by the exercise of the powers conferred by this article if their exercise would otherwise prevent such access.

(3) Without prejudice to the generality of paragraph (1), the undertaker may exercise the powers conferred by this article in relation to any street specified in columns (1) and (2) of Schedule 6 to the extent and for the purpose specified in relation to that street in column (3) of that Schedule.

(4) The undertaker shall not—

(a)exercise the powers specified in paragraph (3) without first consulting the street authority; and

(b)exercise the other powers conferred by this article without the consent of the street authority.

(5) Any person who suffers loss by the 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.

(6) This article is subject to paragraph 2 of Schedule 2 (provisions relating to the apparatus of statutory undertakers etc.).

Access to works

8.—(1) The undertaker may, within the limits of deviation, provide means of access or improve existing means of access to the scheduled works.

(2) Any works providing or improving any means of access referred to in paragraph (1) shall not be commenced until they have been approved by the highway authority.

Application of the 1991 Act

9.—(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 they fall within any description of major highway works specified in paragraphs (a), (c) to (e), (g) or (h) of section 86(3) of that Act.

(2) In the provisions of the 1991 Act applied by paragraph (3), any reference to street works shall be construed as meaning the temporary or permanent stopping up, alteration or diversion of a street by the undertaker, whether or not the stopping up, alteration or diversion constitutes “street works” as defined by section 48(3) of that Act, or works in relation to which a right to execute works exists by virtue of section 105 (2) or (3) of that Act.

(3) The following provisions of the 1991 Act shall apply to works executed under this Order in a highway—

• section 54 (advance notice of certain works);

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

• section 57 (notice of emergency works);

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

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

• section 68 (facilities to be afforded to street authority);

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

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

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

Maintenance of new or altered streets

10.—(1) From the date on which the street authority confirms that the alteration or diversion of a street or part thereof under this Order has been completed to its reasonable satisfaction, that street or part thereof shall be maintained—

(a)for a period of 24 months, by the undertaker;

(b)after a period of 24 months, by the street authority.

(2) Paragraph (1) shall not apply—

(a)where the undertaker and the street authority enter into an agreement as to the maintenance of the street under article 12;

(b)to the maintenance of the structure of any bridge carrying a street over the Canal; or

(c)to the maintenance of the structure of any aqueduct over a street.

(3) The undertaker shall not be held to be a street authority for the purposes of Part III of the 1991 Act by reason of a duty under this article to maintain a street.

Construction of bridges and aqueducts

11.  Where a bridge carrying a street over the Canal or an aqueduct carrying the Canal over a street is to be constructed under this Order—

(a)the undertaker shall submit all necessary plans, drawings and specifications for approval by the highway authority;

(b)the undertaker shall obtain the highway authority’s approval to all such plans, drawings and specifications before the commencement of the works; and

(c)the bridge or aqueduct shall be constructed in accordance with the approved plans, drawings and specifications.

Agreements with street authorities

12.—(1) A street authority and the undertaker may enter into agreements between themselves with respect to—

(a)the maintenance of the structure of any bridge carrying a street over the Canal;

(b)the maintenance of the structure of any aqueduct over a street;

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

(d)the execution in the street of any of the works referred to in article 5.

(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 which is conferred on the undertaker under this Order and which relates to the street in question; and

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

Discharge of water

13.—(1) Subject to the conditions set out in paragraphs (2), (4), (5) and (6), the undertaker may—

(a)use any watercourse or any public sewer or drain for the drainage of water in connection with the construction, maintenance or operation of the authorised works;

(b)for the purposes of sub-paragraph (a), lay down, take up and alter pipes; and

(c)make openings into, and connections with, the watercourse, sewer or drain.

(2) The undertaker shall not discharge any water into any watercourse, public sewer or drain except with the consent of the relevant authority.

(3) The consent referred to in paragraph (2) may be given subject to such terms and conditions as the relevant authority may reasonably impose.

(4) When making an opening into any public sewer or drain in accordance with paragraph (1)(c) of this article, the undertaker shall—

(a)prepare plans for the approval of the relevant authority; and

(b)act in accordance with any such plans approved.

(5) The undertaker 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, except for the purposes of carrying out any of Works No. 2A to 2K or Work No. 4 in accordance with the requirements of section 109 of the Water Resources Act 1991(7).

(6) The undertaker 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 free from gravel, soil or other solid substance or oil or matter in suspension.

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

(8) In this article—

“public sewer or drain” means a sewer or drain which belongs to or is administered by a sewerage undertaker, the Environment Agency, or a local authority;

“relevant authority” means the local authority, statutory undertaker, or other body responsible for the maintenance of the watercourse, public sewer or drain; and

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

Power to abstract groundwater

14.—(1) Subject to paragraphs (2) and (3), the undertaker may construct boreholes and wells and install such pumps and equipment as are required to provide a viable water supply suitable for the Canal and to supply sufficient water to the Canal for the needs of navigation.

(2) Nothing in paragraph (1) shall authorise the carrying out of any works, or the abstraction or discharge of water, except in accordance with the appropriate licence or consent granted by the Environment Agency.

(3) The undertaker may construct boreholes or wells only on land which is shown on the land plans or described in the book of reference.

Power to survey and investigate land

15.—(1) The undertaker may for the purposes of this Order and subject to subparagraph (2)—

(a)survey or investigate any land which may be affected by the authorised works;

(b)make trial holes on the land in such positions as the undertaker thinks fit to investigate the nature of the surface layer and subsoil and remove soil samples;

(c)place on, leave on or remove from the land apparatus for use in connection with the survey or investigation of the land or making of trial holes; and

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

(2) Before exercising any of the powers conferred by subparagraph (1), the undertaker shall—

(a)serve on every owner and occupier of the land a notice giving at least 7 days' notice of the proposal to exercise that power; and

(b)obtain the consent of the street authority in respect of trial holes to be made in any carriageway or footway.

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

(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) The undertaker shall compensate the owners and occupiers of the land for any damage occasioned by the exercise of the powers conferred by this article.

(5) In the case of dispute, the compensation referred to in sub-paragraph (4) shall be determined under Part I of the 1961 Act.

PART 3ACQUISITION AND POSSESSION OF LAND

Power to acquire land

16.—(1) For the purposes of the authorised works, the undertaker may acquire by compulsory purchase any land which is—

(a)shown on the land plans; and

(b)the extent, description and situation of which is specified in column two of the book of reference.

(2) This article is subject to article 19 (9).

Application of Part 1 of the Compulsory Purchase Act 1965

17.—(1) Part I of the 1965 Act, as modified by the provisions of this Order, shall apply to the acquisition of land under this Order as if—

(a)it were a compulsory purchase to which Part 2 of, or Schedule 1 to, the Acquisition of Land Act 1981(8) applied; and

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

(2) Part I of the 1965 Act, as so applied, shall have effect for the purposes of this Order as if—

(a)section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which contains a provision for two sufficient sureties where a bond is given) were omitted; and

(b)in section 11(1), for the words “not less than fourteen days notice” there were substituted—

“(a)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, not less than one month’s notice; and

(b)in any other case, not less than three months' notice,”.

Powers to acquire new rights

18.—(1) If, for the purposes of the authorised works, the undertaker requires easements or rights over any land referred to in article 16(1) it may—

(a)acquire them by compulsory purchase; or

(b)create them.

(2) Where the undertaker acquires a right over land under paragraph (1) it shall not be required to acquire a greater interest in the land.

(3) Paragraph (2) is subject to section 8 of the 1965 Act, as substituted by paragraph 4 of Schedule 7.

(4) Where an easement or other right over land is created under paragraph (1)(b), Schedule 7 shall have effect for the purpose of modifying enactments relating to compensation and the provisions of the 1965 Act in their application to the compulsory acquisition of that easement or other right.

Temporary use of land for construction of works

19.—(1) The undertaker 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 8 for the purpose specified in column (3) of that Schedule;

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

(c)construct temporary works on that land including—

(i)the provision of means of access; and

(ii)buildings.

(2) Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker shall serve notice of the intended entry on the owners and occupiers of the land.

(3) The undertaker shall 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 or works specified in relation to that land in column (4) of Schedule 8.

(4) Subject to paragraph (5), before giving up possession of land under paragraph (3), the undertaker shall remove all temporary works and restore the land to the reasonable satisfaction of any owner or occupier of the land.

(5) Paragraph (4) shall not be taken to require the undertaker to replace a building removed under paragraph (1)(b).

(6) The undertaker shall pay compensation to the owners and occupiers of land for any loss or damage incurred by them as a consequence of the exercise of the powers conferred by this article.

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

(8) Without prejudice to article 35, 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.

(9) Subject to paragraph (10), the powers of compulsory acquisition of land conferred by this Order shall not apply in relation to the land referred to in paragraph (1).

(10) Paragraph (9) shall not apply in relation to rights created under article 18.

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

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

Disregard of certain interests and improvements

20.  For the purposes of assessing the compensation payable to any person on the acquisition from that person of any land, interest or right under this Order, if the tribunal is satisfied that—

(a)the creation of an interest;

(b)the erection of a building;

(c)works executed; or

(d)any improvement or alteration made,

was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation, it shall disregard that interest, building, improvement or alteration, or those works, as the case may be.

Acquisition of part of certain properties

21.—(1) This article shall apply instead of section 8(1) of the 1965 Act in any case where—

(a)a notice to treat is served under the 1965 Act on the owner in respect of a part only (“the notified part”) of any land occupied or managed as a single unit (“the relevant unit of land”); 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 undertaker a counter-notice objecting to the sale of the notified part and stating that he is willing and able to sell the whole of the relevant unit of land.

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

(4) If such a counter-notice is served within that period, the question whether the owner shall be required to sell only the notified part shall, unless the undertaker agrees to take the land specified in the counter-notice, be referred to the tribunal.

(5) If on a reference under paragraph (4), the tribunal determine that the notified part can be taken—

(a)without material detriment to the remainder of the relevant unit of land, and

(b)where the relevant unit of land comprises a house with a park or garden, without seriously affecting the amenity or convenience of the house,

the owner shall be required to sell the notified part.

(6) If on a reference under paragraph (4), the tribunal determine that only part of the notified part can be taken—

(a)without material detriment to the remainder of the land; and

(b)where the land comprises a house with a park or garden, 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 a reference under paragraph (4), the tribunal determine that—

(a)the notified part cannot be taken without material detriment to the remainder of the relevant unit of land; but

(b)the material detriment is confined to only a part of the relevant unit of land, being a part specified in the counter-notice but not the notified part,

the notice to treat shall be deemed to be a notice to treat for that part of the relevant unit of land to which the material detriment is confined, in addition to the notified part, whether or not the additional land is land which the undertaker is authorised to acquire compulsorily under this Order.

(8) If the undertaker agrees to take the land specified in the counter-notice, or if the tribunal determine that—

(a)none of the notified part can be taken without material detriment to the remainder of the relevant unit of land or, where the relevant unit of land comprises a house with a park or garden, without seriously affecting the amenity or convenience of the house; and

(b)the material detriment is not confined to only a part of the notified part,

the notice to treat shall be deemed to be a notice to treat for the whole of the relevant unit of land whether or not the whole of that land is land which the undertaker 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 the notified part, the undertaker 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 expense or other loss occasioned to him by the giving and withdrawal of the notice.

(10) In the case of a dispute under paragraph (9), the amount of compensation shall be determined by the tribunal.

(11) Where the owner is required under this article to sell only part of the relevant unit of land, the undertaker 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.

(12) In this article—

“the 1965 Act” means the 1965 Act as applied by article 17 of this Order; and

“owner” includes any lessee.

Extinction or suspension 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 undertaker, whether compulsorily or by agreement, or

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

whichever is the sooner.

(2) All private rights of way over land of which the undertaker takes temporary possession under this Order shall be suspended and unenforceable for as long as the undertaker 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 1990 Act (extinguishment of rights of statutory undertakers etc.) applies.

Time limit for exercise of powers of acquisition

23.—(1) The powers conferred by this Order to acquire land or rights over land compulsorily, and the power conferred by article 19 to enter upon and take temporary possession of land, shall cease to be exercisable at the end of the period of 5 years beginning on the day on which this Order comes into force.

(2) Paragraph (1) shall not prevent the undertaker remaining in possession of land in accordance with article 19 after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART 4REGULATION AND MANAGEMENT OF THE CANAL

Power to make byelaws

24.—(1) The undertaker may make byelaws regulating the use and operation of the Canal, the maintenance of order on the Canal and on the undertaker’s property or other facilities provided in connection with the use of the Canal, the conduct of all persons while on the Canal and for preventing damage to the Canal.

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

(a)contain provisions—

(i)for prohibiting or restricting the use of the Canal either generally or in any manner specified in the byelaws by traffic of any description so specified;

(ii)with respect to interference with, or obstruction of, the operation of the Canal or other facilities provided in connection with the Canal;

(iii)which make different provisions for different parts of the Canal;

(iv)for regulating the operation of the Canal;

(v)for regulating the movement (including the speed) and use of vessels using the Canal;

(vi)for regulating or prohibiting the mooring of vessels in the Canal;

(vii)for authorising the registration of vessels using the Canal including making reasonable charges for such registration; and

(viii)to exclude any person from the Canal.

(b)may make different provisions for different parts of the Canal.

(3) Byelaws made under this article may provide for it to be an offence for a person to contravene, or 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.

(4) If the contravention of or failure to comply with any byelaw made under paragraph (3) is attended with danger or annoyance to the public, or hindrance to the undertaker in the operation of the Canal, the undertaker may summarily take action to obviate or remove the danger, annoyance or hindrance.

(5) Action taken under paragraph (4) shall not prevent the undertaker from taking proceedings for an offence.

(6) No byelaw made by the undertaker under this article shall have effect until confirmed by the Secretary of State.

(7) At least 28 days before applying for any byelaws to be confirmed under paragraph (6), the undertaker 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 from the publication of the notice.

(8) For at least 24 days before an application is made for byelaws to be confirmed under paragraph (6), a copy of the byelaws shall be kept at the principal office of the undertaker and shall at all reasonable hours be open to public inspection without payment.

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

(10) The Secretary of State may refuse to confirm any byelaw submitted to her by the undertaker for confirmation under this article, or may confirm the byelaw either without or, if the undertaker consents, with modifications.

(11) The Secretary of State may fix the date on which any byelaw confirmed under this article is to come into force.

(12) If no date is so fixed, the byelaw shall come into force at the end of the period of 28 days beginning with the date of confirmation.

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

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

(15) The production of a printed copy of byelaws confirmed under paragraph (6), on which is endorsed a certificate purporting to be signed by a person duly authorised by the undertaker stating—

(a)that the byelaws were made by the undertaker;

(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 come or came into force,

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

Operational powers

25.—(1) Subject to the provisions of this Order, the undertaker may manage the Canal and make charges for its use.

(2) Without prejudice to the generality of paragraph (1), the undertaker may—

(a)control the level of water in and the flow of water into, along or from the Canal;

(b)open or close any lock gate or other structures belonging to the Canal; or

(c)take such steps from time to time as may be considered necessary for the development, improvement, regulation, maintenance or management of the Canal and the facilities afforded by the Canal or in connection with it.

(3) Nothing in this Order shall confer any public or private right of navigation over the Canal, or impose any duty on the undertaker to maintain the Canal for the purpose of navigation, or to supply, or maintain a supply of water for the Canal for that purpose.

Limit of jurisdiction

26.  The boundary between the jurisdiction of the undertaker in respect of the Canal and the jurisdiction of the Board in respect of the Board’s canal shall be a straight line drawn between national grid references 434610E 309982N and 434626E 309970N across the Board’s canal 35 metres north of the Board’s winding hole, being the existing limit of the Board’s canal.

Application of existing enactments

27.—(1) In this article “the original canal” means such part of any canal or former canal as is situated within the limits of deviation in relation to any of the scheduled works, and all works or conveniences connected with any such part, and any lands held for the purpose of such part, but does not include any operational part of the Board’s canal, or any works and conveniences connected therewith, or any lands held or used by the Board for the purpose of the operational part of the Board’s canal.

(2) Any enactment by which the original canal was authorised shall, as from the date on which this Order comes into force, have effect subject to the provisions of this Order.

(3) Except as may be otherwise provided in this Order, as from the date on which this Order comes into force the undertaker shall, in substitution for the Board, be entitled to the benefit of, and to exercise, all rights, powers and privileges and be subject to all obligations relating to the original canal as are provided in the Act made on 9^th May 1794 for making and maintaining a Navigable Canal from the Coventry Canal(9) (in so far as the same are still subsisting and capable of taking effect).

(4) Paragraph (3) shall be subject to any agreement between the undertaker and the Board under article 28 or article 29.

Agreements with British Waterways

28.—(1) The undertaker and the Board may enter into and carry into effect agreements with respect to the construction, maintenance, use and operation of the authorised works, or any part of those works, by the Board or by the undertaker, or by the undertaker and the Board jointly.

(2) Any agreement made under paragraph (1) may make provision with respect to any other matters incidental or subsidiary thereto or consequential thereon, including the defraying of, or the making of contributions towards, costs incurred by either party to the agreement.

(3) Without prejudice to the generality of paragraph (1), any such agreement may provide for the exercise by the Board, or by the undertaker and the Board jointly, of all or any of the powers of the undertaker with respect to any of the authorised works.

(4) The exercise by the Board, or by the undertaker and the Board jointly, under this article, of any powers with respect to the authorised works, or any part of any of those works, shall be subject to the same provisions in relation to those powers as would apply if those powers were exercised by the undertaker alone.

Transfer of the Canal

29.—(1) Except with the consent of the Secretary of State, the undertaker shall not transfer or vest the Canal or any part of it in any person other than the Board.

(2) Except as may be otherwise provided for in this Order or in any agreement under this article, as from the date on which any transfer of the Canal or any part of it by the undertaker comes into force, the transferee shall, in substitution for the undertaker, be entitled to the benefit of, and to exercise, all rights and powers and be subject to all obligations, statutory or otherwise, relating to the transferred Canal (in so far as the same are still subsisting and capable of taking effect).

(3) Where the Canal is transferred to the Board under this article, as from the transfer date—

(a)the transferred Canal shall be deemed for the purposes of any enactment to be (as the case may require) an inland waterway owned or managed by the Board or comprised in the undertaking of the Board or a canal or inland navigation belonging to or under the control of the Board; and

(b)any byelaws made under article 24 shall cease to apply to the transferred Canal.

(4) The transitional provisions of Schedule 9 shall have effect in relation to any transfer in accordance with this article, being a transfer to the Board.

(5) In this article—

“the transferee” means the Board or any other person to whom the undertaking or any part thereof is transferred under this article; and

“the transferred Canal” means so much of the Canal as is transferred in accordance with this article.

PART 5MISCELLANEOUS AND GENERAL

Disclosure of confidential information

30.  A person who—

(a)enters land in pursuance of the provisions of article 15; and

(b)discloses to any person any information so 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.

Statutory undertakers, etc.

31.  The provisions of Schedule 2 shall have effect.

Protection of the Environment Agency

32.  The provisions of Schedule 10 shall have effect.

Certification of plans, etc.

33.—(1) The undertaker shall, as soon as practicable after the making of this Order, submit at least two copies of the certified book of reference, the sections, the land plans and the works plans to the Secretary of State for certification that they are true copies of, respectively, the book of reference, sections and plans referred to in this Order.

(2) Where the book of reference or any land plan, works plan or section has been revised before this Order is made, the copy of the book of reference, plan or section submitted for certification under paragraph (1) shall be a copy of the book of reference, plan or section deposited in the office of the Clerk of the Parliaments in accordance with section14(5)(b) of the 1992 Act.

(3) A copy document so certified shall be admissible in any proceedings as evidence of the contents of the documents of which it is a copy.

Service of notices

34.—(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 director of the body or, in the case of a local authority, a proper officer of that authority.

(3) For the purpose of section 7 of the Interpretation Act 1978(10), the proper address of any person for the purposes of 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 a proper officer 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 last known address at the time of service 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 and describing that land in the notice; 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.

Exclusion of double recovery

35.  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

36.  Any difference as to the application of 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.

Consent and approvals

37.  Where the consent or approval of any body to any works, plans, specifications or other matter is required under this Order, that consent or approval shall not be unreasonably withheld.