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

Article 2(1) and (3)

SCHEDULE 1SCHEDULED WORKS

Articles 7(6) and 31

SCHEDULE 2PROVISIONS RELATING TO STATUTORY UNDERTAKERS ETC

1.—(1) Subject to the following provisions of this paragraph—

(a)sections 271 to 274 of the 1990 Act (Extinguishment of rights of statutory undertakers, etc.) shall apply in relation to any land acquired or appropriated by the undertaker under this Order;

(b)all such other provisions of the 1990 Act as apply for the purposes of those provisions (including sections 275 to 278, which contain provisions consequential on the extinguishment of any rights under sections 271 and 272, and sections 279(2) to (4), 280 and 282, which provide for the payment of compensation) shall have effect accordingly; and

(c)for the purposes of this Order, any references to the appropriate Minister contained in the sections of the 1990 Act which are referred to in sub-paragraphs (a) and (b) above, shall have effect as references to the Secretary of State.

(2) Where any apparatus of public utility undertakers or of a public communications provider is removed in pursuance of a notice or order given or made under section 271, 272 or 273 of the 1990 Act for the purposes of this Order, the undertaker shall compensate any person who is the owner or occupier of premises supplied by that apparatus for expenditure reasonably incurred in connecting the premises to any other apparatus from which a similar supply can be received.

(3) Where a public sewer is removed in pursuance of a notice or order given or made for the purposes of this Order, under section 271, 272 or 273 of the 1990 Act, sub-paragraph (2) shall not apply, but the undertaker shall compensate any person who is—

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

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

for expenditure reasonably incurred by him in causing his drain or sewer to communicate with any other public sewer or with a private sewage disposal plant.

(4) The provisions of the 1990 Act referred to in sub-paragraph (1), as applied by that sub-paragraph, shall not have effect in relation to apparatus as respects which paragraph 2 of this Schedule or Part III of the 1991 Act applies.

(5) In this paragraph—

“public communications provider” has the meaning given by section 151(1) of the Communications Act 2003(1); and0

“public utility undertakers” has the meaning given by section 329(1) of the Highways Act 1980.

2.—(1) Except as provided by this paragraph, where a street is stopped up or services diverted under the provisions of this Order, any statutory undertaker whose apparatus is placed under, in, upon, over, along or across the street, shall have the same powers and rights in respect of that apparatus as if this Order had not been made.

(2) Where, under the provisions of this Order, a street is stopped up or services diverted, any statutory undertaker whose apparatus is placed under, in, upon, over, along or across the street may remove the apparatus and place it, or other apparatus provided in substitution for it, in such other position as the statutory undertaker may reasonably determine and have power to place it;

(3) If reasonably requested to do so by the undertaker, the statutory undertaker shall remove his apparatus and provide other apparatus in substitution for it.

(4) Subject to the following provisions of this paragraph, the undertaker shall pay to any statutory undertaker an amount equal to the cost reasonably incurred by the statutory undertaker in or in connection with—

(a)the execution of relocation works required in consequence of the stopping up of the street; and

(b)the doing of any other work or thing rendered necessary by the execution of relocation works.

(5) If in the course of the execution of relocation works under sub-paragraph (2) or (3)—

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

(b)existing apparatus or apparatus which has been substituted for it is placed at a greater depth;

the provisions of paragraph (6) shall apply.

(6) Unless the substitutions referred to in sub-paragraph (5) above have been agreed to by the undertaker or determined to be necessary by arbitration, any costs incurred by the undertaker in consequence of the substitutions shall be deducted from the amount due to the statutory undertaker under sub-paragraph (4) above.

(7) For the purposes of sub-paragraph (5)—

(a)an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as placing apparatus of greater dimensions in substitution for existing apparatus; and

(b)where the provision of a joint in a cable is agreed, or is determined by arbitration to be necessary, the consequential provision of a joining chamber or of a manhole shall be treated as if it also had been agreed or had been so determined.

(8) Where under sub-paragraph (2) or (3) original apparatus is replaced by substituted apparatus and the original apparatus was put in place more than seven years and six months before the substitution was made, any amount due under sub-paragraph (4) above shall be reduced by the amount which represents the financial benefit of the substitution to the statutory undertaker.

(9) For the purposes of sub-paragraph (8)—

(a)the original apparatus shall be regarded as put in place on the day after the works to put it in place were completed;

(b)the substitution shall be regarded as made on the day after the works to put the substituted apparatus in place are completed;

(c)regulation 7 of the Street Works (Sharing of Costs of Works) (England) Regulations 2000(2) and the Code of Practice referred to in that regulation shall apply for the purpose of determining the amount of the financial benefit of the substitution to the statutory undertaker;

(d)“original apparatus” means the apparatus which is replaced by other apparatus; and

(e)“substituted apparatus” means the apparatus which replaces the original apparatus.

(10) Sub-paragraphs (4) to (9) shall not apply where the authorised works constitute major transport works as defined by section 91(2) of the 1991 Act, and—

(a)the allowable costs of the relocation works shall be determined in accordance with section 85 of that Act (sharing of cost of necessary measures) and the Street Works (Sharing of Costs of Works) (England) Regulations 2000; and

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

(11) In this paragraph—

“relocation works” means works executed, or apparatus provided, under sub-paragraph (2) or (3); and

“statutory undertaker” means a statutory undertaker within the meaning given by section 329(1) of the Highways Act 1980 or a public communications provider as defined by section 151(1) of the Communications Act 2003.

Article 3(5)

SCHEDULE 3LAND ON WHICH WORKS OUTSIDE THE LIMITS OF DEVIATION MAY BE CARRIED OUT

Article 5

SCHEDULE 4STREETS SUBJECT TO STREET WORKS

Article 6(1) and (2)

SCHEDULE 5STREETS TO BE PERMANENTLY STOPPED UP

Article 7(3)

SCHEDULE 6STREETS TO BE TEMPORARILY STOPPED UP

Article18(3) and (4)

SCHEDULE 7MODIFICATION OF COMPENSATION AND COMPULSORY PURCHASE ENACTMENTS FOR CREATION OF NEW EASEMENTS AND RIGHTS

1.  The enactments for the time being in force with respect to compensation for the compulsory purchase of land shall apply to a compulsory acquisition under this Order of an easement or other right created under article 18(1) with the modifications specified in paragraphs 2 to 5.

2.—(1) For the purposes of this Order, the Land Compensation Act 1973(3) shall have effect subject to the modifications set out in sub-paragraph (2).

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

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

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

(3) In section 58(1)(4) (determination of material detriment where part of house etc proposed for compulsory acquisition), as it applies to determinations under section 8 of the 1965 Act as substituted by paragraph 4—

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

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

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

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

3.—(1) Subject to the following provisions of this Schedule, the 1965 Act shall apply to the compulsory acquisition under this Order of a right created under article 18(1) of this Order, so that, in appropriate contexts, references in that Act to land, or to land subject to compulsory purchase, are to be read (according to the requirements of the particular context) as referring to, or as including references to—

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

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

(2) Without prejudice to the generality of sub-paragraph (1), for the purposes of this Order, Part 1 of the 1965 Act shall apply in relation to the compulsory acquisition under this Order of a right created under article 18(1) with the modifications specified in the following provisions of this Schedule.

4.—(1) For section 8 of the 1965 Act (provisions as to divided land) there shall be substituted the following—

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

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

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

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

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

the Leicestershire County Council (Ashby de la Zouch Canal Extension) Order 2005 (“the Order”) shall, in relation to that person, cease to authorise the purchase of the right and be deemed to authorise the purchase of that person’s interest in the whole of the relevant land including, where the land consists of such a park or garden, the house to which it belongs, and the notice shall be deemed to have been served in respect of that interest on such date as the tribunal directs.”.

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

(3) Where, in consequence of a determination of the tribunal that it is satisfied as mentioned in subsection (1)(b) of this section, the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of six weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made.

(4) Nothing in subsection (3) prejudices any other power of the authority to withdraw the notice.

5.  Section 11(6) (powers of entry), section 12(7) (unauthorised entry) and section 13 (refusal to give possession to acquiring authority) of the 1965 Act shall apply so that, as from the date on which the undertaker has served notice to treat under this Order in respect of any right, it has the power to exercise that right (which shall be deemed for this purpose to have been created on the date of service of the notice), subject to the conditions contained in the 1965 Act.

Article 19(1)(a) and (3)

SCHEDULE 8LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Article 29(4)

SCHEDULE 9TRANSFER OF CANAL TO BRITISH WATERWAYS BOARD

1.  In this Schedule—

“the Board’s legislation”, in relation to any transfer, means any byelaws made by the Board under any enactment and in force on the transfer date and any provision of any public general act or private act applying in relation to the Board; and

“the disapplied provisions” means the byelaws made under article 24 which, by virtue of article 29(3)(b) above cease to apply in relation to the transferred Canal as from the transfer date.

2.  In so far as anything done, or begun, under the disapplied provisions could have been (respectively) done, or begun, under any provision of the Board’s legislation relating to the same matter, it shall have effect as if done, or (as the case may be) begun, under that provision.

Article 32

SCHEDULE 10PROVISIONS FOR THE PROTECTION OF THE ENVIRONMENT AGENCY

1.  The following provisions shall apply unless otherwise agreed in writing between Leicestershire County Council and the Environment Agency.

2.  In this Schedule—

“damage” includes scouring, erosion and environmental damage and “damaged” shall be construed accordingly;

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

“drainage work” means any watercourse, and includes any land which is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage or flood defence;

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

“plans” includes sections, drawings, specifications and method statements;

“specified work” means so much of any authorised works as are in, on, under, over or within 16 metres of a watercourse or are likely to—

3.  Before beginning to construct any specified work, the undertaker shall submit to the Environment Agency plans of the work and such further particulars available to it as the Environment Agency may within 28 days of the submission of the plans reasonably require.

4.  Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the Environment Agency, or determined under paragraph 12.

5.  Any approval of the Environment Agency required under paragraph 4—

(a)shall be deemed to have been given if it is neither given nor refused in writing within 56 days of the submission of the plans for approval; and

(b)may be given subject to such reasonable requirements as the Environment Agency may make for the protection of any drainage work or fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its environmental and recreational duties.

6.  Where any approval required under paragraph 4 is refused, it shall be accompanied by a statement of the grounds of refusal.

7.  The requirements which the Environment Agency may make as a condition of its approval under paragraph 4 include conditions requiring the undertaker at its own expense to construct such protective works, whether temporary or permanent, during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) as are reasonably necessary—

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

(b)to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased by reason of any specified work.

8.  Any specified work, and any protective works required by the Environment Agency as a condition of its approval under paragraph 4, shall be constructed—

(a)with all reasonable despatch in accordance with the plans approved or deemed to have been approved under this Schedule; and

(b)to the reasonable satisfaction of the Environment Agency;

and any officer of the Environment Agency authorised to act on its behalf for the purpose shall be entitled to watch and inspect the construction of such works.

9.  The undertaker shall give to the Environment Agency not less than 14 days' notice in writing of its intention to commence construction of any specified work, and notice in writing of its completion not later than 7 days after the date on which it is brought into use.

10.  If any part of the works comprising a structure in, over or under a drainage work is constructed otherwise than in accordance with the requirements of this Schedule, the Environment Agency may by notice in writing require the undertaker, at the undertaker’s own expense, to comply with the requirements of this Schedule or, if the undertaker so elects and the Environment Agency in writing consents, to remove, alter or pull down the structure and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Environment Agency reasonably requires.

11.  Subject to paragraph 12, if within a reasonable period, being not less than 28 days from the date when a notice under paragraph 10 is served upon the undertaker, it has failed to begin to take steps to comply with the requirements of the notice or thereafter to make reasonably expeditious progress towards their implementation, the Environment Agency may execute the works specified in the notice, and any expenditure incurred by it in so doing shall be recoverable from the undertaker.

12.  In the event of any dispute as to whether the condition in paragraph 10 for the service of a notice under that paragraph is met in relation to any work in respect of which a notice has been served under that paragraph, or as to the reasonableness of any requirement of such a notice, the Environment Agency shall not except in an emergency exercise the powers conferred by paragraph 11 until the dispute has been finally determined.

13.  The undertaker shall from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation, on land owned by the undertaker or which it otherwise controls, or on land held by the undertaker for the purposes of or in connection with the specified works, whether or not the drainage work is constructed under the Order or is already in existence.

14.  If any such work which the undertaker is liable to maintain is not maintained to the reasonable satisfaction of the Environment Agency, the Environment Agency may by notice in writing require the undertaker to repair and restore the work, or any part thereof, or, if the undertaker so elects and the Environment Agency in writing consents, to remove the work and restore the site to its former condition, to such extent and within such limits as the Environment Agency may reasonably require.

15.  If, within a reasonable period, being not less than 28 days beginning with the date on which a notice in respect of any work is served under paragraph 14 on the undertaker, the undertaker has failed to begin to take steps to comply with the reasonable requirements of the notice and has not thereafter made reasonably expeditious progress towards their implementation, the Environment Agency may itself take any steps necessary to meet their requirements and may recover from the undertaker any expenditure reasonably incurred by it in doing so.

16.  In the event of any dispute as to the reasonableness of any requirement of a notice served under paragraph 14, the Environment Agency shall not, except in a case of an emergency, exercise the powers conferred by paragraph 15 above until the dispute has been finally determined.

17.  If, by reason of the construction of any specified work or of the failure of any such work to operate satisfactorily, the efficiency of any drainage work for flood defence purposes is impaired, or any such drainage work is otherwise damaged, the undertaker shall make good such impairment or damage to the reasonable satisfaction of the Environment Agency, and if the undertaker fails to do so, the Environment Agency may make good the same and recover from the undertaker the expense reasonably incurred by it in doing so.

18.  The undertaker shall take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in any fishery during the construction of any specified work.

19.  If by reason of—

(a)the construction of any specified work, or

(b)the failure of any such work,

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

20.  If, within such time as may be reasonable for that purpose after the receipt of written notice from the Environment Agency of any damage or expected damage to the fishery, the undertaker fails to take such steps as are specified in a notice under paragraph 19, the Environment Agency may take those steps and may recover from the undertaker the expense reasonably incurred by it in doing so.

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

22.  The undertaker shall indemnify the Environmental Agency in respect of all costs, charges and expenses which the Environment Agency may reasonably incur—

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

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

23.  Without prejudice to the other provisions of this Schedule, the undertaker shall indemnify the Environment Agency from all claims, demands, proceedings, costs, damages or expenses or loss which may be made or taken against, or recovered from or incurred by the Environment Agency by reason of—

(a)any damage to any drainage work which is such as to impair its efficiency for the purposes of flood defence,

(b)any damage to any fishery,

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

(d)any flooding or increased flooding of any such lands, or

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

which is caused by, or results from, the construction of any of the works or any act or omission of the undertaker or its contractors or agents whilst engaged upon the work.

24.  The Environment Agency shall give to the undertaker reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of the undertaker.

25.  The fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the Environment Agency, or to its satisfaction, or in accordance with any direction or award of an arbitrator, shall not relieve the undertaker from any liability for a failure to comply with any provision of this Schedule.

26.  Any dispute arising between the undertaker and the Environment Agency under this Schedule (other than a difference as to its construction) shall, if the parties agree, be determined by arbitration, but shall otherwise be determined by the Secretary of State for the Environment Food and Rural Affairs.