PART IPRELIMINARY

Citation and commencement

1.  This Order may be cited as the Docklands Light Railway (Capacity Enhancement) Order 2005 and shall come into force on 25th November 2005.

Interpretation

2.—(1) In this Order—

“the 1845 Act” means the Railways Clauses Consolidation Act 1845(3);

“the 1961 Act” means the Land Compensation Act 1961(4);

“the 1965 Act” means the Compulsory Purchase Act 1965(5);

“the 1980 Act” means the Highways Act 1980(6);

“the 1981 Act” means the Acquisition of Land Act 1981(7);

“the 1984 Act” means the Road Traffic Regulation Act 1984(8);

“the 1990 Act” means the Town and Country Planning Act 1990(9);

“the 1991 Act” means the New Roads and Street Works Act 1991(10);

“the 1992 Act” means the Transport and Works Act 1992(11);

“the 1993 Act” means the Railways Act 1993(12);

“the 1994 Act” means the London Docklands Development Corporation Act 1994(13);

“the 2003 Act” means the Communications Act 2003(14);

“the Applications Rules” means the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000(15);

“authorised works” means the scheduled works and any other works authorised by this Order or any part of them;

“the Board” means the British Waterways Board;

“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;

“bridge strengthening” means works to construct or maintain all necessary embankments, aprons, abutments, retaining walls and wing walls for the purposes of strengthening bridges;

“carriageway” has the same meaning as in the 1980 Act;

“conduit system” has the same meaning as in the electronic communications code and references to providing a conduit system shall be construed in accordance with paragraph 1(3A) of that code;

“the deposited plans” means the composite plans certified by the Secretary of State as the deposited plans for the purposes of this Order and references to land shown on those plans are references to land so shown in pursuance of rule 12(5) of the Applications Rules;

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

“DLRL” means Docklands Light Railway Limited, a company limited by shares and registered in England and Wales under number 2052677;

“the Docks” means West India North Branch Dock, West India Centre Branch Dock, West India South Dock and Millwall Inner Dock shown on the maps referred to in section 3 of the 1994 Act;

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part II of the 2003 Act;

“electronic communications code network” means—

“former PTO” means a person—

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

“the limits of deviation” means the limits of lateral deviation for the scheduled works mentioned in article 6(1)(a);

“the limits of land to be acquired or used” means the limit so shown and described on the deposited plans;

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

“mooring” means any buoy, pile, pontoon chain or other apparatus used for the mooring of vessels;

“Network Rail” means Network Rail Infrastructure Limited;

“occupier” means a person occupying land under a tenancy for a period of more than one month (not being a statutory tenant within the meaning of the Rent Act 1977(17) or the Rent Agriculture Act 1976)(18);

“operator”, in relation to an electronic communications code network means—

“the Order limits” means the limits of deviation and the limits of additional land to be acquired or used shown on the deposited plans;

“owner”, in relation to land, has the same meaning as in the 1981 Act;

“parking place” has the same meaning as in section 32 of the 1984 Act;

“pile strengthening” means works to construct, alter or otherwise strengthen piers and columns to support DLRL’s railway viaduct;

“provide” and cognate expressions, in relation to an electronic communications network, an electronic communications service or associated facilities, are to be construed in accordance with section 32(4) of the 2003 Act;

“public electronic communications network” and “public electronic communications service” each has the same meaning as in Chapter 1 of Part II of the 2003 Act;

“the scheduled works” means the works specified in Schedule 1 to this Order or any part of them;

“station works” means the works specified in column (3) of Part 2 of Schedule 2 to this Order to be undertaken in relation to the stations specified in column (1) of Part 2 of Schedule 2;

“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

“viaduct strengthening” means pile strengthening, works to attach steel plates to DLRL’s railway viaduct and such other works to strengthen DLRL’s railway viaduct as DLRL thinks fit.

(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 authorised by 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 marked on the deposited plans.

(5) All distances, directions and lengths stated in the description of the scheduled works or in any description of powers or lands shall be construed as if the words “or thereabouts” were inserted after each such distance, direction and length, and distances between points on a scheduled work shall be taken to be measured along the scheduled work.

Application of 1991 Act

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 transport works if—

(a)they are of a description mentioned in any of paragraphs (a), (c) to (e), (g) and (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 1980 Act (dual carriageways and roundabouts).

(2) Section 56 (directions as to timing) and section 58 (restrictions following substantial road works) of the 1991 Act shall not apply in relation to any works executed under the power of this Order.

(3) The provisions of the 1991 Act mentioned in paragraph (4) (which, together with other provisions of that Act, apply in relation to the execution of street works) and any regulations made, or code of practice issued or approved under, those provisions shall apply (with the necessary modifications) in relation to the stopping up, alteration or diversion of a street by DLRL under the powers conferred by this Order whether or not the stopping up, alteration or diversion constitutes street works within the meaning of that Act.

(4) The provisions of the 1991 Act referred to in paragraph (3) are—

• 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 75 (inspection fees);

• 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.

(5) Nothing in this Order shall prejudice the operation of section 87 of the 1991 Act (prospectively maintainable highways); and DLRL shall not by reason of any duty under this Order 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.

Incorporation of the Railways Clauses Consolidation Act 1845

4.—(1) The following provisions of the 1845 Act shall be incorporated in this Order—

• section 68 and section 69 (accommodation works by company);

• section 71 (additional accommodation works by owners);

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

• sections 87 and 88 (contracts with other companies);

• section 97 (default in payment of tolls);

• sections 103 and 104 (refusal to quit carriage at destination);

• section 105 (carriage of dangerous goods on railway);

• section 144 (defacing of boards);

• section 145 (recovery of penalties);

• section 154 (transient offenders).

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

“the company” means DLRL;

“goods” includes anything conveyed on the railways authorised to be constructed by this Order;

“lease” includes an agreement for lease;

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

“the railway” means any railway authorised to be constructed by this Order and, except where the context otherwise requires, any other authorised works;

“the special Act” means this Order;

“toll” includes any rate or charge or other payment payable under this Order or any other enactment for any passenger or goods conveyed on any railway authorised to be constructed under this Order.

(3) In section 69 of the 1845 Act, as incorporated in this order, for the words “determined by two justices” to the end there shall be substituted the words “referred to arbitration”.

(4) In section 71 of the 1845 Act, as incorporated in this Order, the words “or directed by such justices to be made by the company” shall be omitted, and for the words “authorised by two justices” there shall be substituted the words “determined by arbitration”.

(5) Any difference arising under section 72 of the 1845 Act, as incorporated in this Order, shall be referred to arbitration.

PART 2WORKS PROVISIONS

Principal Powers

Power to construct and maintain works

5.—(1) DLRL may construct and maintain the scheduled works.

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

(3) DLRL may carry out and maintain—

(a)on the land specified in columns (1) and (2) of Part 2 of Schedule 2 to this Order, the works specified in relation to that land in column (3) of that Part of that Schedule;

(b)at each of the stations specified in column (1) of Part 2 of Schedule 2 to this Order and on the land specified in relation to that station in column (2) of that part of that Schedule, the station works;

together with all necessary works and facilities in connection therewith.

(4) Subject to paragraph (6), and without prejudice to any other powers available to it under any other enactment, DLRL may from time to time 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 authorised works, namely—

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

(b)works to erect and construct such stations, engines, machinery, apparatus, and other works and facilities as DLRL thinks fit;

(c)making, providing, extending and maintaining all such, approaches, bridges, subways, interchanges, roundabouts, turning places, passages, areas of access and staging as DLRL thinks fit;

(d)making junctions and communications (including the provision of steps or ramps for the use of persons on foot) with any highway or access way interfered with by, or contiguous with, any of those works, and widening or altering any highway or access way for the purposes of connecting it with any of those works or another highway, or of crossing under or over the highway or access way;

(e)works to carry out viaduct strengthening, pile strengthening and bridge strengthening;

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

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

(h)works for the benefit or protection of land or premises affected by the authorised works, and

(i)works to alter, repair or discontinue the above mentioned works or any of them and substitute others in their place.

(5) Subject to paragraph (6), DLRL may from time to time carry out and maintain 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 authorised works.

(6) The works specified in paragraphs (4) and (5) may only be carried out—

(a)within the limits of deviation for the scheduled works shown on the deposited plans;

(b)on land specified in columns (1) and (2) of Parts 1 or 2 of Schedule 2 to this Order in connection with authorised works specified in relation to that land in column (3) of that part of that Schedule; and

(c)on land specified in columns (1) and (2) of Schedule 8 to this Order in connection with the authorised works specified in relation to that land in column (4) of that Schedule.

(7) The following enactments shall not apply to anything done under or in pursuance of this Order—

(a)section 109 of the Water Resources Act 1991(19);

(b)section 23 of the Land Drainage Act 1991(20);

(c)section 13 of the 1994 Act; and

(d)any byelaws made under the above Acts.

Power to deviate

6.—(1) In constructing or maintaining any of the scheduled works, DLRL may—

(a)deviate laterally from the lines or situations shown on the deposited plans within the limits of deviation relating to that work shown on those plans;

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

(i)to any extent not exceeding 1.5 metres upwards in the case of Works Nos. 9 and 10;

(ii)to any extent not exceeding 1 metre upwards in the case of any other of the scheduled works; and

(iii)to any extent downwards.

(2) Without prejudice to the generality of paragraph (1), in constructing or maintaining the scheduled works DLRL may, to the extent that it thinks fit—

(a)deviate from their points of commencement and termination shown on the deposited plans; and

(b)in relation to any intended bridge, viaduct, gantry or other structure or apparatus above ground level, deviate from the design shown on the deposited sections as it thinks fit, including by varying the number of any supporting piers, columns or other structures, the distances between them and the height or clearance above the level of the ground.

Station works at Tower Gateway

7.—(1) DLRL may, in the construction of Work No. 1 and within the limits of deviation for that work—

(a)alter and extend Tower Gateway station with all necessary works and conveniences connected therewith, including the construction of new platform extensions and canopy over DLRL’s platforms at that station; and

(b)provide at the station new pedestrian access incorporating a lift and staircase.

Station works at Poplar

8.  DLRL may, in the construction of Works Nos. 3 and 4, and within the limits of deviation for those works alter and extend Poplar station with all necessary works and conveniences connected therewith, including the construction of new platform extensions and a canopy over DLRL’s platforms at that station.

Station works at Mudchute

9.  DLRL may, in the construction of Works Nos. 7 and 8 and within the limits of deviation for those works alter and extend Mudchute station with all necessary works and conveniences connected therewith, including the construction of new platform extensions and a canopy over DLRL’s platforms at that station.

Streets

Power to keep apparatus in streets

10.—(1) DLRL 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 Order limits and in any street having a junction with such a street any work, equipment or apparatus including, without prejudice to the generality of the foregoing, foundations, road islands, substations, electric lines and any electrical or other apparatus.

(2) In this article—

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

(b)“electric line” has the meaning given by section 64(1) of the Electricity Act 1989(21); and

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

Power to execute street works

11.—(1) DLRL may, for the purposes of the authorised works, enter upon so much of any of the streets specified in Schedule 3 to this Order as is within the Order limits 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 sub-paragraphs (a), (b) and (c).

(2) In this article “apparatus” has the same meaning as in Part III of the 1991 Act and includes a sewer, drain or tunnel and any structure for the lodging within that structure of apparatus or any structure required for gaining access to apparatus.

Stopping up of streets

12.—(1) Subject to the provisions of this article DLRL may, in connection with the construction of the authorised works, stop up each of the streets specified in columns (1) and (2) of Part 1 and Part 2 of Schedule 4 to this Order to the extent specified, by reference to the letters and numbers shown on the deposited plans, in column (3) of Parts 1 and 2 of that Schedule.

(2) No street specified in columns (1) and (2) of Part 1 of Schedule 4 to this Order (being a street to be stopped up for which a substitute is to be provided) shall be wholly or partly stopped up under this article unless either—

(a)the new street to be substituted for it, and which is specified in relation to it by reference to one of the scheduled works mentioned in column (4) of that Part of that Schedule, has been completed to the reasonable satisfaction of the street authority and is open for use; or

(b)a temporary alternative route is first provided and thereafter maintained by DLRL to the reasonable satisfaction of the street authority between the commencement and termination points of the street to be stopped up until completion of the new street in accordance with sub-paragraph (a).

(3) No street specified in columns (1) to (3) of Part 2 of Schedule 4 to this Order (being a street to be stopped up for which no substitute is to be provided) shall be wholly or partly stopped up under this article unless the condition specified in paragraph (4) is satisfied in relation to all the relevant land; and for this purpose “relevant land” means any land which abuts on either side of the street to be stopped up.

(4) The condition referred to in paragraph (3) is that—

(a)DLRL is in possession of the land; or

(b)there is no right of access to the land from the street concerned; or

(c)there is reasonably convenient access to the land otherwise than from the street concerned; or

(d)the owners and occupiers of the land have agreed to the stopping up.

(5) DLRL may for the purposes of, in connection with or in consequence of the authorised works in the London borough of Tower Hamlets, install columns in any part of—

(a)Branch Road which lies between points N1, N2, N3 and N4;

(b)Westferry Road which lies between points N5, N6 and N7 and between points N8 and N9;

(c)Aspen Way which lies between points P1, P2, P3 and P4;

and stop up those streets to the extent occupied by those works.

(6) Where a street has been stopped up under this article—

(a)all rights of way over or along it shall be extinguished; and

(b)DLRL may appropriate and use for the purposes of its undertaking so much of the site of the street as is bounded on both sides by land owned by DLRL.

(7) 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.

(8) This article is subject to paragraph 1 of Schedule 9 to this Order.

Temporary stopping up of streets

13.—(1) DLRL 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 (3), prevent all persons from passing along the street.

(2) Without prejudice to the generality of paragraph (1), DLRL may use South Quay Station Plaza and any street stopped up under the powers of this article as a temporary working site.

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

(4) Without prejudice to the generality of paragraph (1), DLRL may exercise the powers of this article in relation to the streets specified in columns (1) and (2) of Schedule 5 to this Order.

(5) DLRL shall not exercise the powers of this article—

(a)in relation to any street specified as mentioned in paragraph (4), without first consulting the street authority; and

(b)in relation to any other street, without the consent of the street authority, but such consent shall not be unreasonably withheld.

(6) In this article “South Quay Station Plaza” means the lands delineated on the deposited plans and shown numbered 532, 537, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576 and 577 in the London borough of Tower Hamlets.

Access to works

14.  DLRL may, for the purposes of the authorised works—

(a)form and lay out such means of access or improve such existing means of access, in the locations specified in columns (1) and (2) of Schedule 6 to this Order at or about the point marked “A”; and

(b)with the approval of the highway authority (such approval not to be unreasonably withheld) form and lay out such other means of access or improve existing means of access at such locations within the Order limits as DLRL reasonably requires for the purposes of the authorised works.

Construction and maintenance of new or altered streets

15.—(1) Subject to paragraph (4), any street to be constructed under this Order shall be completed to the reasonable satisfaction of the highway authority and shall, unless otherwise agreed, be maintained by and at the expense of DLRL for a period of 12 months from its completion and at the expiry of that period by and at the expense of the highway authority.

(2) Subject to paragraph (4), where a street is altered or diverted under this Order, the altered or diverted 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 DLRL 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.

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

(4) Paragraphs (1) and (2) shall not apply in relation to the structure of any bridge or tunnel carrying a street over or under any railway of DLRL.

Agreements with street authorities

16.—(1) A street authority and DLRL may enter into agreements with respect to—

(a)the construction of any new street (including any structure carrying the street over or under the authorised railway) under the powers conferred by this Order;

(b)the strengthening or improvement of any street under the powers conferred by this Order;

(c)the maintenance of any street or of the structure of any bridge or tunnel carrying a street over or under an authorised railway;

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

(e)the execution in the street of any of the works referred to in article 11.

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

(a)provide 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.

(3) In this article—

(a)“an authorised railway” means the Tower Gateway to Westferry Railway, the Poplar to Stratford and Beckton Railway and the Canary Wharf to Lewisham Railway; and

(b)“the Tower Gateway to Westferry Railway”, “the Poplar to Stratford and Beckton Railway” and “the Canary Wharf to Lewisham Railway” have the same meanings as in Schedule 1 to this Order.

Construction of bridges

17.  Any bridge to be constructed or reconstructed under this Order for carrying a highway over or under a railway shall be constructed or reconstructed in accordance with plans and specifications approved by the relevant highway authority, but such approval shall not be unreasonably withheld.

Works in the Docks

18.—(1) Without prejudice to the other powers conferred by this Order or otherwise available to it, DLRL may within the designated area, for the purposes of or in connection with the construction, operation or maintenance of the authorised works and notwithstanding any interference thereby with any public or private rights—

(a)construct, place, alter, relocate or replace any work or structure whether temporary or permanent;

(b)close and de-water any part of the designated area and divert vessels and other craft from any part of the designated area;

(c)use, appropriate and dispose of any materials obtained by it in carrying out any such operations;

(d)remove or relocate any mooring;

(e)remove and relocate any vessel or structure sunk, stranded or abandoned or moored or left (whether lawfully or not);

(f)temporarily moor or anchor vessels and structures and load and unload into and from such vessels or structures equipment, machinery, soil and any other materials in connection with the authorised works; and

(g)temporarily interfere with, occupy and use the bed, waters and dock walls within the designated area;

in such manner and to such extent as may appear to DLRL to be necessary or convenient.

(2) Except in the case of emergency, DLRL will use its reasonable endeavours to notify the owner of any mooring and the owner or master of any vessel or structure affected by the proposal to exercise the powers of paragraph (1)(d) or (e) before the exercise of that power.

(3) During any period of closure in accordance with paragraph (1)(b), all rights of navigation along, and obligations of the Board to maintain for navigation any waters within the designated area or part thereof so closed shall be suspended and unenforceable against the Board.

(4) In this article—

“designated area” means that part of the Docks within the Order limits.

Supplemental

Discharge of water

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

(2) Any dispute arising from the exercise of the powers in paragraph (1) to connect to or use a public sewer or drain shall be determined as if it were a dispute under section 106 of the Water Industry Act 1991(22).x

(3) DLRL 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.

(4) DLRL 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.

(5) DLRL 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.

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

(7) The 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(23).

(8) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to a sewerage undertaker, the Environment Agency, an internal drainage board, a local authority, or a harbour authority within the meaning of the Harbours Act 1964(24);

(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.

Protective works to buildings

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

(2) Protective works may be carried out—

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

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

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

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

(a)enter the building and any land within its curtilage; and

(b)where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building but outside its curtilage, enter the adjacent land.

(5) Before exercising—

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

(b)a right under paragraph (3) to enter a building and land within its curtilage;

(c)a right under paragraph (4)(a) to enter a building and land within its curtilage; or

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

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

(6) Where notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the protective works or to enter the building or land to be referred to arbitration under article 54.

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

(8) Where—

(a)protective works are carried out under this article to a building; and

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

DLRL shall compensate the owners and occupiers of the building for any loss or damage sustained by them.

(9) Without prejudice to article 53, nothing in this article shall relieve DLRL from any liability to pay compensation under section 10(2) of the 1965 Act.

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

(11) In this article—

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

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

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

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

(iii)any external or internal works the purpose of which is to secure the safe operation of the authorised works or to prevent or minimise the risk of such operation being disrupted.

Town and country planning

21.—(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(25) (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(26), or as incorporated in any tree preservation order), any direction under section 90(2A) of the 1990 Act 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(l)(d) of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Trees) Regulations 1999(27) as incorporated in any tree preservation order or as having effect by virtue of regulation 10(l)(a) of those Regulations, any direction under section 90(2A) of the 1990 Act deeming planning permission to be granted in relation to the 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 1990 Act 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).

Power to survey and investigate land, etc.

22.—(1) DLRL may for the purposes of this Order—

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

(b)without prejudice to the generality of sub-paragraph (a), make trial holes in such positions as DLRL thinks fit on 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 any such land;

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

(e)enter on the land for the purpose of exercising any of 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 DLRL—

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

Obstruction of construction of authorised works

23.  Any person who, without reasonable excuse, obstructs another person from constructing any of the authorised works under the powers conferred by this Order shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

PART 3ACQUISITION AND POSSESSION OF LAND

Powers of acquisition

Power to acquire land

24.—(1) DLRL may acquire compulsorily—

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

(b)so much of the land specified in columns (1) and (2) of Parts 1 and 2 of Schedule 2 to this Order (being land shown on the deposited plans and described in the book of reference as lying within the limits of additional land to be acquired or used) as may be required for the purpose specified in relation to that land in column (3) of that Schedule;

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

(2) This article is subject to article 29(2).

Application of Part I of the Compulsory Purchase Act 1965

25.—(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 1981 Act applies; and

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

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

Application of Compulsory Purchase (Vesting Declarations) Act 1981

26.—(1) The Compulsory Purchase (Vesting Declarations) Act 1981(28) shall apply to DLRL as if this Order were a compulsory purchase order.

(2) In its application by virtue of paragraph (1) above, 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 a local newspaper circulating in the area in which the land is situated”.

(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 substituted—

“(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 a local newspaper circulating in the area in which the land is situated”; 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)” shall be omitted.

(8) References to the 1965 Act shall be construed as references to that Act as applied to the acquisition of land under article 25.

Powers to acquire new rights

27.—(1) DLRL may compulsorily acquire such easements or other rights over any land referred to in paragraph (1)(a) or (b) of article 24 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) Schedule 7 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.

(3) Subject to section 8 of the 1965 Act (as modified by paragraph 5 of Schedule 7 to this Order), where DLRL acquires a right over land under paragraph (1) it shall not be required to acquire a greater interest in that land.

Powers to acquire subsoil only

28.—(1) DLRL may compulsorily acquire so much of the subsoil of the land referred to in paragraph (1)(a) or (b) of article 24 as may be required for any purpose for which that land may be acquired under that provision instead of acquiring the whole of the land.

(2) Where DLRL acquires any part of the subsoil of land under paragraph (1) DLRL shall not be required to acquire an interest in any other part of the land.

(3) Paragraph (2) shall not prevent article 33 from applying where DLRL acquires a cellar, vault, arch or other construction forming part of a house, building or manufactory.

Rights under or over streets

29.—(1) DLRL may enter upon and appropriate so much of the surface, subsoil of, or airspace over, any street shown on the deposited plans and described in the book of reference as may be required for the purposes of the authorised works and may use the surface, subsoil and air-space for those purposes or any other purpose ancillary to its undertaking.

(2) The power under paragraph (1) may be exercised in relation to a street without DLRL being required to acquire any part of the street or any easement or right in the street and except in relation to a street which is subject to stopping up pursuant to article 12, the powers of compulsory acquisition of land conferred by this Order shall not apply in relation to 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 DLRL 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 1961 Act.

(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, on or under a street which forms part of a building fronting on to the street.

(5) Compensation shall not be payable under paragraph (3) to any person who is an undertaker, to whom section 85 of the 1991 Act applies, in respect of measures of which the allowable costs are to be borne in accordance with regulations made under that section.

Temporary possession of land

Temporary use of land for construction of works

30.—(1) DLRL 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 to this Order for the purpose specified in relation to that land in column (3) of that Schedule in connection with the authorised works (or any of those works) so specified in column (4) of that Schedule;

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

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

(2) Not less than 14 days before exercising the powers of paragraphs (1) or (2), DLRL shall serve notice of the intended entry or use on the owners and occupiers of the land.

(3) DLRL may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of 2 years beginning with the date of completion of the work or works specified in relation to that land in column (4) of Schedule 8 to this Order.

(4) Before giving up possession of land of which temporary possession has been taken under paragraph (1), DLRL shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but DLRL shall not be required to replace a building removed under this article.

(5) DLRL shall pay compensation to the owners and occupiers of land of which temporary possession is taken under paragraph (1), for any loss or damage arising from the exercise in relation to the land of the powers conferred by paragraph (1).

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

(7) Without prejudice to article 53, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).

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

(9) In this article and article 31 “building” includes structure or any other erection.

(10) Section 13 of the 1965 Act shall apply to the temporary use of land authorised under this article to the same extent as it applies to the acquisition of land authorised under this Order by virtue of article 24(1).

Temporary use of land for maintenance of works

31.—(1) Subject to paragraph (2) at any time during the maintenance period relating to any of the scheduled works, DLRL may—

(a)enter upon and take temporary possession of any land within the Order limits and lying within 20 metres from any authorised work, if such possession is reasonably required for the purpose of, or in connection with, maintaining that work or any ancillary works connected with it or securing the safe operation of any such work; and

(b)construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.

(2) Paragraph (1) shall not authorise DLRL to take temporary possession of—

(a)any house or garden belonging to a house; or

(b)any building (other than a house) if it is for the time being occupied.

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

(4) DLRL may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance works for which possession of the land was taken.

(5) Before giving up possession of land of which temporary possession has been taken under this article, DLRL shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

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

(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 53, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6).

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

(10) Section 13 of the 1965 Act shall apply to the temporary use of land authorised under this article to the same extent as it applies to the acquisition of land authorised under this Order by virtue of article 24(1).

(11) In this article—

(a)“the maintenance period”, in relation to a scheduled work, means the period of 5 years beginning with the date on which the work is opened for public use; and

(b)any reference to land within a specified distance of a work includes, in the case of a work under the surface of the ground, a reference to land within the specified distance of the point on the surface below which the work is situated.

Compensation

Disregard of certain interests and improvements

32.—(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

33.—(1) This article shall apply instead of section 8(1) of the 1965 Act (as applied by article 25) 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 DLRL 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 DLRL agrees to take the land subject to the counter-notice, be referred to the tribunal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 DLRL 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, DLRL may, within the period of 6 weeks beginning with the day on which the determination is made, withdraw the notice to treat; and, if it does so, shall pay to the owner compensation for any loss or expense occasioned to him by the giving and withdrawal of the notice, to be determined in case of dispute by the tribunal.

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

Extinction or suspension of private rights of way

34.—(1) Subject to the provisions of this article, all private rights of way over land held or used by DLRL for the purposes of the authorised works or subject to compulsory acquisition under this Order shall be extinguished—

(a)as from the use by DLRL of the land for the purposes of the authorised works;

(b)as from the acquisition of the land by DLRL, whether compulsorily or by agreement; or

(c)on the entry on the land by DLRL under section 11(1) of the 1965 Act,

whichever is sooner.

(2) Subject to the provisions of this article, all private rights of way over land owned by DLRL which is within the Order limits and is required for the purposes of this Order, shall be extinguished on the appropriation of the land for any of those purposes by DLRL.

(3) Subject to the provisions of this article, all private rights of way over land of which DLRL takes temporary possession under this Order shall be suspended and unenforceable for as long as DLRL remains in lawful possession of the land.

(4) 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.

(5) 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.) or paragraph 2 of Schedule 9 to this Order applies.

(6) Paragraphs (1), (2) and (3) shall have effect subject to—

(a)any notice given by DLRL before the completion of the acquisition of the land, DLRL’s appropriation of it, DLRL’s entry onto it or DLRL’s taking temporary possession of it, as the case may be, that any or all of those paragraphs shall not apply to any right of way specified in the notice; and

(b)any agreement made (whether before or after any of the events mentioned in paragraph (6)(a) and before or after the coming into force of this Order) between DLRL and the person in or to whom the right of way in question is vested or belongs.

(7) If any such agreement as is referred to in paragraph (6)(b) which is made with a person in or to whom the right of way is vested or belongs is expressed to have effect also for the benefit of those deriving title from or under him, it shall be effective in respect of the persons so deriving title, whether the title was derived before or after the making of the agreement.

Public open space at Deptford Bridge

35.—(1) As from the date upon which DLRL enters onto the special category land under section 11(1) of the 1965 Act the special category land shall thereupon be discharged from all rights, trusts and incidents to which it was previously subject.

(2) In this article—

“the special category land” means the land delineated on the deposited plans and thereon numbered 783, 784, 787 and 793 in the London Borough of Lewisham and forming part of an open space within the meaning of section 19(1) of the 1981 Act which the Secretary of State has certified as not exceeding 209 square metres and that the giving in exchange of other land for the special category land is unnecessary for the purposes of section 19(1) of the 1981 Act.

Time limit for exercise of powers of acquisition

36.—(1) 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 25; and

(b)no declaration shall be executed under section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981, as applied by article 26.

(2) The power conferred by article 30 to enter upon and take temporary possession of land shall cease at the end of the period mentioned in paragraph (1); but this paragraph shall not prevent DLRL from remaining in possession of land in accordance with article 30 after the end of that period, if the land was entered and possession of it was taken before the end of that period.

PART 4OPERATION OF AUTHORISED WORKS

Maintenance of approved works, etc.

37.—(1) Where pursuant to regulations(29) 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 works, 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 works.

(2) If without reasonable cause the provisions of paragraph (1) are contravened, DLRL 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 lop trees overhanging authorised works

38.—(1) DLRL may fell or lop any tree or shrub near any part of the authorised works, 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 works or any apparatus used for the purposes of the authorised works; or

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

(2) In exercising the powers in paragraph (1), DLRL 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) Nothing in this article shall be taken to affect the application of any tree preservation order made under section 198 of the 1990 Act.

(4) 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 1961 Act.

PART 5PROTECTIVE PROVISIONS

Statutory undertakers, etc.

39.  The provisions of Schedule 9 to this Order shall have effect.

For protection of Network Rail Infrastructure Limited

40.  The provisions of Schedule 10 to this Order shall have effect.

For protection of local highway authorities

41.  The provisions of Schedule 11 to this Order shall have effect.

For protection of the Environment Agency

42.  The provisions of Schedule 12 to this Order shall have effect.

For protection of specified undertakers

43.  The provisions of Schedule 13 to this Order shall have effect.

For protection of British Waterways Board

44.  The provisions of Schedule 14 to this Order shall have effect.

PART 6MISCELLANEOUS AND GENERAL

Traffic regulation

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

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

(b)suspend temporarily the use of any parking place within a relevant street; and

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

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

(a)given not less than 12 weeks' notice in writing of its intention to do so to the chief officer of police and the traffic authority in whose area the relevant streets are situated; and

(b)not less than seven days before exercising any power under this article, given notice of the intention to exercise the power of this article by publishing a notice in a local newspaper circulating in the area.

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

(4) In this article—

“the relevant streets” means the carriageway of the streets specified in columns (1) and (2) of Schedule 15 to this Order; and

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or an electronic communications code operator or a former PTO as defined in article 2(1).

Powers of disposal, agreements for operation, etc.

46.—(1) DLRL 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 designated works and any land held in connection therewith.

(2) Without prejudice to the generality of paragraph (1), DLRL 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 designated works, or any part or parts of them, 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 DLRL or any other person.

(3) Any agreement under paragraph (2) may provide, among other things, for the exercise of the powers of DLRL in respect of the works or any part or parts thereof, and for the transfer to any person of the works or any part or parts thereof together with the rights and obligations of DLRL in relation thereto.

(4) The exercise of the powers of any enactment by any person in pursuance of any sale, lease, charge or disposal under paragraph (1), or any agreement under paragraph (2), shall be subject to the same restrictions, liabilities and obligations as would apply under this Order if those powers were exercised by DLRL.

(5) Sections 163 and 207(2) of the Greater London Authority Act 1999(30) shall not apply to the disposal of any freehold interest in land or the grant of a leasehold interest in land where consent for such disposal or grant is required under paragraph (1).

(6) In this article—

“designated works” means any of the authorised works which are to be constructed on any lands which were subject to a transfer scheme made pursuant to section 3 of the London Docklands Railway (Lewisham) (No. 2) Act 1993(31).

Application of landlord and tenant law

47.—(1) This article applies to any agreement for leasing to any person the whole or any part of the authorised works or the right to operate the same, and any agreement entered into by DLRL with any person for the construction, maintenance, use or operation of the authorised works, or any part of them, 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 such 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.

Defence to proceedings in respect of statutory nuisance

48.—(1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990(32) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows—

(a)that the nuisance relates to premises used by DLRL for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works and that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60, or a consent given under section 61 or 65, of the Control of Pollution Act 1974(33); or

(b)that the nuisance is a consequence of the operation of the works authorised by this Order and that it cannot reasonably be avoided.

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

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

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

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

(3) The provisions of this article are without prejudice to the application to the authorised works of section 122 of the 1993 Act (statutory authority as a defence to actions in nuisance, etc.) or any rule of common law having similar effect.

Disclosure of confidential information

49.  A person who—

(a)enters a factory, workshop or workplace in pursuance of the provisions of article 20 or article 22; 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.

Application of certain railway enactments

50.—(1) Any enactment by which any railway or former railway of Network Rail comprised within the affected properties was authorised shall have effect subject to the provisions of this Order.

(2) Nothing in paragraph (1) shall prejudice any express statutory provision for —

(a)the protection of the owner, lessee or occupier of any specifically designated property; or

(b)the protection or benefit of any public trustees or commissioners, corporation or other person, specifically named in such provision.

(3) In this article “affected properties” means any land described in the book of reference which is owned by Network Rail or in which Network Rail has an interest.

Certification of plans, etc.

51.  DLRL shall, as soon as practicable after the making of this Order, submit copies of the book of reference, the deposited plans and the deposited sections to the Secretary of State for certification that they are true copies of, respectively, the book of reference, the deposited plans and the deposited sections 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

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

(a)by post; or

(b)subject to paragraphs (5), (6), (7) and (8) by electronic transmission.

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

(3) For the purposes of section 7 of the Interpretation Act 1978(34) 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) Where a notice or other document required to be served or sent for the purposes of this Order is served or sent by electronic transmission the requirement shall be taken to be fulfilled where the recipient of the notice or other document to be transmitted has given his consent to the use of electronic transmission either in writing or by electronic transmission.

(6) Where the recipient of a notice or other document served or sent by electronic transmission notifies the sender within 7 days of receipt that he requires a paper copy of all or any part of that notice or other document the sender shall provide such a copy as soon as reasonably practicable.

(7) A person may revoke his consent to the use of electronic transmission in accordance with paragraph (8).

(8) Where a person is no longer willing to accept the use of electronic transmission for any of the purposes of this Order he shall—

(a)give notice in writing or by electronic transmission revoking any consent given by him for that purpose; and

(b)such revocation shall be final and shall take effect on a date specified by the person in the notice but that date shall not be less than 7 days after the date on which the notice is given.

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

No double recovery

53.  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, or under two or more different provisions of this Order.

Arbitration

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

SCHEDULES

Article 5

SCHEDULE 1SCHEDULED WORKS

In this Schedule—

“the Tower Gateway to Westferry Railway” means that part of the Docklands Light Railway that operates between Tower Gateway Station in the City of London and Westferry Station in the London borough of Tower Hamlets;

“the Poplar to Stratford and Beckton Railway” means that part of the Docklands Light Railway that operates between Poplar Station in the London borough of Tower Hamlets and Stratford and Beckton Stations in the London borough of Newham; and

“the Canary Wharf to Lewisham Railway” means that part of the Docklands Light Railway that operates between Canary Wharf Station in the London borough of Tower Hamlets and Lewisham Station in the London borough of Lewisham.

In the City of London and the London borough of Tower Hamlets

• Work No. 1—A railway (143 metres in length), being a deviation of the Tower Gateway to Westferry Railway, commencing in the City of London at a point 60 metres north west of the junction of Mansell Street with Royal Mint Street and terminating in the London borough of Tower Hamlets at a point on that railway 150 metres north east of the junction of those streets.

In the London borough of Tower Hamlets

• Work No. 2—A railway (58 metres in length), being a deviation of the Tower Gateway to Westferry Railway, commencing at a point 93 metres north of the junction of Cable Street with Hardinge Street and terminating at a point on that railway 58 metres east of its commencement.

• Work No. 3—A railway (99 metres in length), being a deviation of the Poplar to Stratford and Beckton Railway commencing at a point 91 metres north east of the junction of Poplar High Level Walkway with Aspen Way, passing beneath Work No. 5 (footbridge) and terminating at a point on that railway 99 metres east of its commencement.

• Work No. 4—A railway (90 metres in length), being a deviation of the Poplar to Stratford and Beckton Railway, commencing at a point 90 metres north east of the junction of Poplar High Level Walkway with Aspen Way, passing beneath Work No. 5 (footbridge) and terminating at a point on that railway 90 metres east of its commencement.

• Work No. 5—A footbridge at Poplar Station incorporating stairs providing a means of emergency escape over the Poplar to Stratford and Beckton Railway, commencing in Aspen Way at a point 12 metres east of the commencement of Work No. 4 (railway) passing over Work Nos. 3 and 4 (railways) and terminating on the Stratford/Beckton bound platform of that station at a point 36 metres east of the commencement of Work No. 3 incorporating a stairway to the footbridge from the Lewisham/Tower Gateway bound platform of that station.

• Work No. 6—A station constructed on viaduct incorporating pedestrian access, lifts, staircases and new piers to support platforms and canopies commencing on the Canary Wharf to Lewisham Railway at a point 120 metres east of the junction of Millharbour with Marsh Wall, passing over Millwall Cutting and terminating at a point 97 metres east of its commencement.

• Work No. 7—A railway (112 metres in length) being a realignment of a siding of the Canary Wharf to Lewisham Railway at Mudchute Station commencing at a point 225 metres north of the junction of Thermopylae Gate with Spindrift Avenue and terminating at a point 112 metres south of its commencement.

• Work No. 8—A railway (176 metres in length) being a deviation of the Canary Wharf to Lewisham Railway commencing at a point 308 metres north of the junction of Spindrift Avenue with Thermopylae Gate and terminating at a point on that railway 132 metres north of that junction.

In the London borough of Newham

• Work No. 9—A railway (721 metres in length) with sidings forming an extension of Beckton Depot for the stabling and maintenance of rolling stock commencing at a point 135 metres south east of the junction of Royal Docks Road with the Eastern Gateway Grade Separation Bridge and terminating at a point 107 metres east of the south eastern corner of Beckton Depot Engine Shed.

• Work No. 10—A railway (591 metres in length) with sidings forming an extension of Beckton Depot for the stabling and maintenance of rolling stock commencing at a point 155 metres north east of the junction of Royal Docks Road with the Eastern Gateway Grade Separation Bridge and terminating at a point 108 metres north east of the south eastern corner of Beckton Depot Engine Shed.

Articles 5 and 24

SCHEDULE 2ADDITIONAL LAND WHICH MAY BE ACQUIRED OR USED

PART 1GENERAL

PART 2STATION WORKS

Article 11

SCHEDULE 3STREETS SUBJECT TO STREET WORKS

Article 12

SCHEDULE 4STREETS TO BE STOPPED UP

PART 1STREETS FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

PART 2STREETS FOR WHICH NO SUBSTITUTE WILL BE PROVIDED

Article 13

SCHEDULE 5STREETS TO BE TEMPORARILY STOPPED UP

Article 14

SCHEDULE 6ACCESS TO WORKS

Article 27

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

Compensation enactments

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

2.—(1) Without prejudice to the generality of paragraph 1, the Land Compensation Act 1973(35) shall have effect subject to the modifications set out in sub-paragraphs (2) and (3).

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

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

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

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

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

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

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

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

Adaptation of the 1965 Act

3.—(1) The 1965 Act shall have effect with the modifications necessary to make it apply to the compulsory acquisition under this Order of a right by the creation of a new right as it applies to the compulsory acquisition under this Order of land, so that, in appropriate contexts, references in that Act to land are 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), Part I of the 1965 Act shall apply in relation to the compulsory acquisition under this Order of a right by the creation of a new right with the modifications specified in the following provisions of this Schedule.

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

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

5.  For section 8 of the 1965 Act (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 of a notice to treat in respect of a right over land consisting of a house, building or manufactory or of a park or garden belonging to a house (“the relevant land”)—

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

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

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

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

the Docklands Light Railway (Capacity Enhancement) 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) of this section the Order is deemed by virtue of that subsection to authorise the purchase of an interest in land, the acquiring authority may, at any time within the period of six weeks beginning with the date of the determination, withdraw the notice to treat in consequence of which the determination was made; but nothing in this subsection prejudices any other power of the authority to withdraw the notice”.

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

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

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

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

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

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

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

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

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

Articles 5 and 30

SCHEDULE 8LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Article 39

SCHEDULE 9PROVISIONS RELATING TO STATUTORY UNDERTAKERS, ETC.

Apparatus of statutory undertakers, etc., on land acquired

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

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

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

(4) Sub-paragraph (3) shall not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that sub-paragraph, any person who is—

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

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

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

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

(6) In this paragraph—

“public utility undertakers” has the same meaning as in the 1980 Act.

Apparatus of statutory undertakers, etc., in stopped up streets

2.—(1) Where a street is stopped up under articles 12 or 13 of this Order any statutory utility whose apparatus is under, in, upon, over, along or across the street shall have the same powers and rights in respect of that apparatus, subject to the provisions of this paragraph, as if this Order had not been made.

(2) DLRL shall give not less than 28 days' notice in writing of its intention to stop up any street under articles 12 or 13 to any statutory utility whose apparatus is under, in, upon, over, along or across that street.

(3) Where notice under sub-paragraph (2) has been given, any statutory utility whose apparatus is under, in, upon, over, along or across the street may where reasonably necessary for the efficient operation of the undertaking of the statutory utility and, if reasonably requested so to do by DLRL, shall—

(a)remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the statutory utility may reasonably determine and have power to place it; or

(b)provide other apparatus in substitution for the existing apparatus and place it in such position as aforesaid.

(4) Subject to the following provisions of this paragraph, DLRL shall pay to any statutory utility an amount equal to the cost reasonably incurred by the statutory utility 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 (3)—

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

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

and the placing of apparatus of that type or capacity or of those dimensions or the placing of apparatus at that depth, as the case may be, is not agreed by DLRL, or, in default of agreement, is not determined by arbitration to be necessary in consequence of the construction of the relocation works, then, if it involves cost in the execution of the relocation works exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this sub-paragraph would be payable to the statutory utility by virtue of sub-paragraph (4) shall be reduced by the amount of that excess.

(6) 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 a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended provides more than an equivalent service; and

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

(7) An amount which apart from this sub-paragraph would be payable to a statutory utility in respect of works by virtue of sub-paragraph (4) (and having regard, where relevant, to sub-paragraph (5)) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the statutory utility any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit as calculated in accordance with the Code of Practice entitled “Measures Necessary where Apparatus is Affected by Major Works (Diversionary Works)” and dated June 1992 and approved by the Secretary of State on 30th June, 1992, as revised and re-issued from time to time.

(8) Sub-paragraphs (4) to (7) shall not apply where the authorised works constitute major transport works for the purposes of Part III of the 1991 Act, but instead—

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

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

(9) The temporary stopping up, alteration or diversion of any highway under article 13 of this Order shall not affect any right of an electronic communications code operator or a former PTO under paragraph 9 of the electronic communications code in respect of any apparatus which at the time of the stopping up or diversion is in the highway.

(10) In this paragraph—

“apparatus” has the same meaning as in Part III of the 1991 Act;

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

“statutory utility” means a statutory undertaker for the purposes of the 1980 Act or an electronic communications code operator or a former PTO.

3.—(1) Subject to the following provisions of this paragraph, the powers under article 11 of this Order to break up or open a street shall not be exercisable where the street, not being a highway maintainable at public expense (within the meaning of the 1980 Act)—

(a)is under the control or management of, or is maintainable by, railway or tramway undertakers or a navigation authority, or

(b)forms part of a level crossing belonging to any such undertakers or to such an authority or to any other person,

except with the consent of the undertakers or authority or, as the case may be, of the person to whom the level crossing belongs.

(2) Sub-paragraph (1) shall not apply to the carrying out under this Order of emergency works, within the meaning of Part III of the 1991 Act.

(3) A consent given for the purposes of sub-paragraph (1) may be made subject to such reasonable conditions as may be specified by the person giving it but shall not be unreasonably withheld.

(4) In this paragraph “navigation authority” means any person who has a duty or power under any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary, harbour or dock.

Article 40

SCHEDULE 10FOR PROTECTION OF NETWORK RAIL INFRASTRUCTURE LIMITED

1.  The following provisions of this Schedule shall, unless otherwise agreed in writing between DLRL and Network Rail Infrastructure Limited, have effect.

2.  In this Schedule—

“C2C” means C2C Limited and includes its successors from time to time;

“SET” means South Eastern Trains Limited and includes its successors from time to time;

“construction” includes execution, placing, alteration and reconstruction and “construct” and “constructed” have corresponding meanings;

“the engineer” means an engineer appointed by Network Rail Infrastructure Limited for the purposes of this Order;

“EWS” means English Welsh and Scottish Railway Limited and includes its successors from time to time;

“network licence” means the network licence, as the same is amended from time to time, granted to Network Rail (then called Railtrack PLC) by the Secretary of Sate in exercise of his powers under section 8 of the 1993 Act;

“Network Rail” means Network Rail Infrastructure Limited and any associated company of Network Rail Infrastructure Limited which holds property for railway purposes, and for the purpose of this definition “associated company” means any company which is (within the meaning of section 736 of the Companies Act 1985(36)) the holding company of Network Rail Infrastructure Limited, a subsidiary of Network Rail Infrastructure Limited or another subsidiary of the holding company of Network Rail Infrastructure Limited;

“plans” includes sections, designs, drawings, specifications, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of railway property;

“railway operational procedures” means procedures specified under any access agreement (as defined in the 1993 Act) or station lease;

“railway property” means any railway belonging to Network Rail Infrastructure Limited and—

“relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by each train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction or failure of a specified work or any such act or omission as mentioned in paragraph 14(1).

“specified work” means so much of any of the authorised works as is situated upon, across, under, over or within 15 metres of, or may in any way adversely affect, railway property; and

“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the 1993 Act.

3.—(1) Subject to paragraph (5), DLRL shall not pursuant to the powers of this Order, without the consent of Network Rail Infrastructure Limited acquire or enter upon, take or use, whether temporarily or permanently or acquire any new rights over any railway property.

(2) DLRL shall not exercise the powers conferred by sections 271 or 272 of the 1990 Act, as applied by Schedule 9 to this Order, in relation to any right of access of Network Rail to railway property, but such right of access may be diverted with the consent of Network Rail Infrastructure Limited.

(3) DLRL shall not in the exercise of the powers conferred by this Order prevent pedestrian or vehicular access to any railway property, unless preventing such access is with the consent of Network Rail Infrastructure Limited.

(4) Where Network Rail Infrastructure Limited is asked to give its consent pursuant to sub-paragraph (1), (2) or (3), such consent shall—

(a)not be unreasonably withheld or delayed but may be given subject to reasonable conditions; and

(b)be subject to compliance by Network Rail Infrastructure Limited with any relevant railway operational procedures.

(5) Nothing in this paragraph shall prevent DLRL pursuant to article 24 of this Order from acquiring the interest of any person other than Network Rail Infrastructure Limited or C2C, EWS or SET in railway property.

4.—(1) DLRL shall before commencing construction of any specified work supply to Network Rail Infrastructure Limited proper and sufficient plans of that work for the reasonable approval of the engineer and the specified work shall not be constructed except in accordance with such plans as have been approved in writing by the engineer or settled by arbitration.

(2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld or delayed, and if by the end of the period of 28 days beginning with the date on which such plans have been supplied to Network Rail Infrastructure Limited the engineer has not intimated his disapproval of those plans and the grounds of his disapproval DLRL may serve upon the engineer written notice requiring the engineer to intimate his approval or disapproval within a further period of 28 days beginning with the date upon which the engineer receives written notice from DLRL. If by the end of the further period of 28 days the engineer has not intimated his approval or disapproval, he shall be deemed to have approved the plans as submitted.

(3) If by the end of the period of 56 days beginning with the date on which written notice was served upon the engineer under sub-paragraph (2) Network Rail Infrastructure Limited gives notice to DLRL that Network Rail Infrastructure Limited desires itself to construct any part of a specified work which in the opinion of the engineer will or may affect the stability of railway property or the safe operation of traffic on the authorised railways then, if DLRL desires such part of the specified work to be constructed, Network Rail Infrastructure Limited shall construct it (together with any adjoining part of the specified work which DLRL reasonably requires to be constructed in one operation with that work) with all reasonable dispatch on behalf of and to the reasonable satisfaction of DLRL in accordance with the plans approved or deemed to be approved or settled under this paragraph and under the supervision (where appropriate and if given) of DLRL.

(4) In the event of Network Rail Infrastructure Limited not constructing or completing any part of a specified work pursuant to sub-paragraph (3) with all reasonable dispatch and to the reasonable satisfaction of DLRL in accordance with such programme as may be agreed with DLRL or settled by arbitration, Network Rail Infrastructure Limited shall pay compensation to DLRL for any loss which it may sustain as a result.

(5) When signifying his approval of the plans the engineer may specify any protective works (whether temporary or permanent) which in his opinion should be carried out before the commencement of a specified work to ensure the safety or stability of railway property or the continuation of safe and efficient operation of the railways of Network Rail Infrastructure Limited or the services of operators using the same (including any relocation of works, apparatus and equipment necessitated by a specified work), and such protective works as may be reasonably necessary for those purposes shall be constructed by Network Rail Infrastructure Limited or by DLRL, if Network Rail Infrastructure Limited so desires, with all reasonable dispatch and DLRL shall not commence the construction of the specified works until the engineer has notified DLRL that the protective works have been completed to his reasonable satisfaction.

5.—(1) Any specified work shall, when commenced, be constructed—

(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled under paragraph 4;

(b)under the supervision (where appropriate and if given) and to the reasonable satisfaction of the engineer;

(c)in such manner as to cause as little damage as is possible to railway property; and

(d)so far as is reasonably practicable and consistent with the efficient and economic construction and operation of the specified work, so as not to interfere with or obstruct the free, uninterrupted and safe use of the authorised railways or the traffic thereon and the use by passengers of railway property,

and, if any damage to railway property or any such interference or obstruction is caused or takes place in consequence of the construction of a specified work, DLRL shall, notwithstanding any such approval, make good such damage and shall pay to Network Rail Infrastructure Limited all reasonable expenses to which Network Rail maybe put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(2) Nothing in this Schedule shall impose any liability on DLRL with respect to any damage, costs, expenses or loss attributable to the negligence of Network Rail or its servants, contractors or agents.

6.  DLRL shall—

(a)at all times afford reasonable facilities to the engineer for access to a specified work during its construction; and

(b)supply the engineer with all such information as he may reasonably require with regard to a specified work or the method of constructing it.

7.  Network Rail Infrastructure Limited shall at all times afford reasonable facilities to DLRL and its agents for access to any works carried out by Network Rail Infrastructure Limited under this Schedule during their construction and shall supply DLRL with such information as it may reasonably require with regard to such works or the method of constructing them.

8.—(1) If any alterations or additions, either permanent or temporary, to railway property are reasonably necessary during the construction of a specified work, or during a period of 12 months after the commencement of regular revenue-earning train operations using the new railways comprised in any specified work, in consequence of the construction of a specified work, and Network Rail Infrastructure Limited gives to DLRL reasonable notice of its intention specifying the alterations or additions to be carried out, DLRL shall pay to Network Rail Infrastructure Limited the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by Network Rail Infrastructure Limited in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If the cost of maintaining, working or renewing railway property is reduced in consequence of any such alterations or additions a capitalised sum representing such saving shall be set off against any sum payable by DLRL to Network Rail Infrastructure Limited under this paragraph.

9.  DLRL shall repay to Network Rail Infrastructure Limited all reasonable fees, costs, charges and expenses reasonably incurred by Network Rail Infrastructure Limited—

(a)in constructing any part of a specified work on behalf of DLRL as provided by paragraph 4(4) or in constructing any protective works under the provisions of paragraph 4(6) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works; and

(b)in respect of the approval by the engineer of plans submitted by DLRL and the supervision by him of the construction of a specified work.

10.—(1) In this paragraph—

“EMI” means, subject to sub-paragraph (2), electromagnetic interference with Network Rail’s apparatus generated by the operation of the authorised works where such interference is of a level which adversely affects the safe operation of Network Rail’s apparatus; and

“Network Rail’s apparatus” means any lines, circuits, wires, apparatus or equipment (whether or not modified or installed as part of the authorised works) which are owned or used by Network Rail for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications.

(2) This paragraph shall apply to EMI only to the extent that such EMI is not attributable to any change to Network Rail’s apparatus carried out after approval of plans under paragraph 4(1) for the relevant part of the authorised works giving rise to EMI (unless DLRL has been given notice in writing before the approval of those plans of the intention to make such change).

(3) Subject to sub-paragraph (5), DLRL shall in the design and construction of the authorised works take all measures necessary to prevent EMI and shall establish with Network Rail Infrastructure Limited (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(4) In order to facilitate DLRL’s compliance with sub-paragraph (3)—

(a)DLRL shall consult with Network Rail Infrastructure Limited as early as reasonably practicable to identify all Network Rail’s apparatus which may be at risk of EMI, and thereafter shall continue to consult with Network Rail Infrastructure Limited (both before and after formal submission of plans under paragraph 4(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b)Network Rail Infrastructure Limited shall make available to DLRL all information in Network Rail Infrastructure Limited’s possession reasonably requested by DLRL in respect of Network Rail’s apparatus identified pursuant to sub-paragraph (a); and

(c)Network Rail Infrastructure Limited shall allow DLRL reasonable facilities for the inspection of Network Rail’s apparatus identified pursuant to sub-paragraph (a).

(5) In any case where it is established that EMI can only reasonably be prevented by modifications to Network Rail’s apparatus, Network Rail Infrastructure Limited shall not withhold its consent unreasonably to modifications of Network Rail’s apparatus, but the means of prevention and the method of their execution shall be selected in the reasonable discretion of Network Rail Infrastructure Limited, and in relation to such modifications paragraph 4(1) shall have effect subject to this sub-paragraph.

(6) If at any time prior to the commencement of regular revenue-earning train operations on the new railways comprised in the authorised works and notwithstanding any measures adopted pursuant to sub-paragraph (3), the testing or commissioning of the authorised works causes EMI then DLRL shall immediately upon receipt of notification by Network Rail of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) DLRL’s apparatus causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (5)) to Network Rail’s apparatus.

(7) In the event of EMI having occurred—

(a)DLRL shall afford reasonable facilities to Network Rail Infrastructure Limited for access to DLRL’s apparatus in the investigation of such EMI;

(b)Network Rail Infrastructure Limited shall afford reasonable facilities to DLRL for access to Network Rail’s apparatus in the investigation of such EMI; and

(c)Network Rail Infrastructure Limited shall make available to DLRL any additional material information in its possession reasonably requested by DLRL in respect of Network Rail’s apparatus or such EMI.

(8) Where Network Rail Infrastructure Limited approves modifications to Network Rail’s apparatus pursuant to sub-paragraphs (5) or (6)—

(a)Network Rail Infrastructure Limited shall allow DLRL reasonable facilities for the inspection of the relevant part of Network Rail’s apparatus;

(b)any modifications to Network Rail’s apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by DLRL in accordance with paragraph 5.

(9) To the extent that it would not otherwise do so, the indemnity in paragraph 14(1) shall apply to the costs and expenses reasonably incurred or losses suffered by Network Rail through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to Network Rail’s apparatus) or in consequence of any EMI to which sub-paragraph (6) applies.

(10) For the purpose of paragraph (8)(a) any modifications to Network Rail’s apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

(11) In relation to any dispute arising under this paragraph the reference in article 54 of this Order to the Institution of Civil Engineers shall be read as a reference to the Institution of Electrical Engineers.

11.  If at any time after the completion of a specified work, not being a work vested in Network Rail, Network Rail Infrastructure Limited gives notice to DLRL informing it that the state of maintenance of the specified work appears to be such as adversely affects the operation of railway property, DLRL shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect railway property.

12.  DLRL shall not provide any illumination or illuminated sign or signal on or in connection with a specified work in the vicinity of any railway belonging to Network Rail Infrastructure Limited unless it shall have first consulted Network Rail Infrastructure Limited and it shall comply with Network Rail Infrastructure Limited’s reasonable requirements for preventing confusion between such illumination or illuminated sign or signal and any railway signal or other light used for controlling, directing or securing the safety of traffic on the railway.

13.  Any additional expenses which Network Rail Infrastructure Limited may reasonably incur in altering, reconstructing or maintaining railway property under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days' previous notice of the commencement of such alteration, reconstruction or maintenance has been given to DLRL, be repaid by DLRL to Network Rail Infrastructure Limited.

14.—(1) DLRL shall pay to Network Rail Infrastructure Limited all reasonable costs, charges, damages and expenses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by Network Rail Infrastructure Limited—

(a)by reason of the construction or maintenance of a specified work or the failure thereof; or

(b)by reason of any act or omission of DLRL or of any person in its employ or of its contractors or others whilst engaged upon a specified work;

and DLRL shall indemnify Network Rail Infrastructure Limited from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission; and the fact that any act or thing may have been done by Network Rail Infrastructure Limited on behalf of DLRL or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision shall not (if it was done without negligence on the part of Network Rail Infrastructure Limited or of any person in its employ or of its contractors or agents) excuse DLRL from any liability under the provisions of this sub-paragraph.

(2) Network Rail Infrastructure Limited shall give DLRL reasonable notice of any such claim or demand and no settlement or compromise of such a claim or demand shall be made without the prior consent of DLRL.

(3) The sums payable by DLRL under sub-paragraph (1) shall include a sum equivalent to the relevant costs.

(4) Subject to the terms of any agreement between Network Rail Infrastructure Limited and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, Network Rail Infrastructure Limited shall promptly pay to each train operator the amount of any sums which Network Rail Infrastructure Limited receives under sub-paragraph (3) which relates to the relevant costs of that train operator.

(5) The obligation under sub-paragraph (3) to pay Network Rail Infrastructure Limited the relevant costs shall, in the event of default, be enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (4).

15.  Network Rail Infrastructure Limited shall, on receipt of a request from DLRL, from time to time provide DLRL free of charge with written estimates of the costs, charges, expenses and other liabilities for which DLRL is or will become liable under this Schedule (including the amount of the relevant costs mentioned in paragraph 14) and with such information as may reasonably enable DLRL to assess the reasonableness of any such estimate or claim made or to be made pursuant to this Schedule (including any claim relating to those relevant costs).

16.  In the assessment of any sums payable to Network Rail under this Schedule there shall not be taken into account any increase in the sums claimed that is attributable to any action taken by or any agreement entered into by Network Rail if that action or agreement was not reasonably necessary and was taken or entered into with a view to obtaining the payment of those sums by DLRL under this Schedule or increasing the sums so payable.

17.  DLRL and Network Rail Infrastructure Limited may subject in the case of Network Rail Infrastructure Limited to compliance with the terms of its network licence enter into, and carry into effect, agreements for the transfer to DLRL of—

(a)any railway property shown on the deposited plans and described in the book of reference;

(b)any lands, works or other property held in connection with any such railway property; and

(c)any rights and obligations (whether or not statutory) of Network Rail relating to any railway property.

18.  In so far as any specified work or the acquisition or use of railway property is or may be subject to railway operational procedures, Network Rail, SET, EWS and C2C shall—

(a)co-operate with DLRL with a view to avoiding delay and securing conformity as between any plans approved by the engineer and any requirements resulting from those procedures; and

(b)use best endeavours to avoid any conflict arising between the application of railway operational procedures and the proper implementation of the authorised works pursuant to this Order.

Article 41

SCHEDULE 11FOR PROTECTION OF LOCAL HIGHWAY AUTHORITIES

1.  The following provisions of this Schedule shall, unless otherwise agreed in writing between DLRL and the appropriate Council, have effect.

2.  In this Schedule—

“the appropriate Council” means—

“highway” means a street vested in or maintainable by the appropriate Council; and

“highway operations” means the construction of any part of the authorised works which will involve interference with a highway or the traffic in a highway and any temporary stopping up, alteration or diversion of a highway.

3.  Before commencing to construct any scheduled work DLRL shall consult the appropriate Council about—

(a)the programme for the construction of that work so as to secure, so far as may be reasonably practicable, that the duration of any disturbance occasioned by, or in connection with, such construction shall be reduced to a minimum; and

(b)the land within the Order limits to be occupied and used by DLRL as temporary working sites for the purpose of such construction, the period for which and the manner in which each site shall be used and the steps to be taken by DLRL in order to mitigate any injury to amenity.

4.  DLRL shall consult the appropriate Council as to—

(a)the routes in the appropriate Council’s area proposed to be used by vehicles, machinery and plant, passing to or from any works under construction; and

(b)the proposed manner and method of disposing of any soil or waste material resulting from the carrying out of any operation in connection with the authorised works;

and such soil or waste material shall not be disposed of by DLRL in the appropriate Council’s area in any manner as shall be objected to in writing by the appropriate Council.

5.  Before commencing to construct any authorised work which will involve highway operations, DLRL shall consult the appropriate Council as to the time when that work will be commenced, as to the extent of the surface of the highway which it may be reasonably necessary for DLRL to occupy in the construction of that work, and as to the conditions under which that work shall be constructed so as not to cause so far as possible inconvenience to the public and to ensure the safety of the public.

6.  Any such highway shall be reinstated by DLRL in a manner reasonably approved by the appropriate Council and to its reasonable satisfaction.

7.  DLRL shall not, except with the consent of the appropriate Council, deposit any soil, subsoil or materials or stand any vehicle or plant on any highway (except on so much thereof as is for the time being temporarily stopped up or occupied under the powers of this Order) so as to obstruct the use of such highway by any person or, except with the like consent, deposit any soil, subsoil or materials on any highway except within a hoarding.

8.  Except in an emergency or where reasonably necessary to secure the safety of the public no direction or instruction shall be given by the appropriate Council to the contractors, servants or agents of DLRL regarding any highway operations without the prior consent in writing of DLRL; but the appropriate Council shall not be liable for any additional costs which may be incurred as a result of the giving of instructions or directions pursuant to this paragraph.

9.  DLRL shall, if reasonably so required by the appropriate Council, provide and maintain during such time as DLRL may occupy any part of a highway for the purpose of the construction of any part of the authorised works, temporary ramps for vehicular traffic or pedestrian traffic, or both, and any other traffic measures required to protect the safety of road users in accordance with the standard recommended in Chapter 8 of the Traffic Signs Manual issued for the purposes of the Traffic Signs Regulations and General Directions 1994(37) in such position as may be necessary to prevent undue interference with the flow of traffic in any highway.

10.  DLRL shall indemnify the appropriate Council against any claim which may arise as a result of any subsidence of, or damage to, any highway or any retained sanitary convenience, refuge, sewer, drain, lamp column, traffic sign, bollard, bin for refuse or road materials or apparatus connected therewith or any other property or work belonging to, or under the jurisdiction or control of, the appropriate Council on or under any highway, or maintainable by them, which may be caused by, or in consequence of, any act or default of DLRL, its contractors, servants or agents but the appropriate Council shall give to DLRL reasonable notice of any such claim and no settlement or compromise of it shall be made without DLRL’s prior consent.

11.  Wherever in this Schedule provision is made with respect to the approval or consent of the appropriate Council, that approval or consent shall be in writing and may be given subject to such reasonable terms and conditions as the appropriate Council may require in the interests of safety and in order to minimise inconvenience to persons using the highway, but shall not be unreasonably withheld.

12.  Any difference arising between DLRL and the appropriate Council under this Schedule (other than a difference as to its meaning or construction) shall be determined by arbitration in accordance with article 54 of this Order.

Article 42

SCHEDULE 12FOR PROTECTION OF THE ENVIRONMENT AGENCY

1.  The following provisions of this Schedule shall, unless otherwise agreed in writing between DLRL and the Environment Agency, (in this Schedule referred to as “the Agency”), have effect.

2.  In this Schedule—

“construction” includes execution, placing, altering, replacing, relaying and, in relation to temporary works, removal; and “construct” and “constructed” shall be construed accordingly;

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

“drainage work” means any watercourse and includes any land used for providing flood storage capacity for any watercourse and any bank, wall, embankment or other structure or appliance constructed or used for defence against water or for the drainage of land;

“the fishery” means fish in the River Ravensbourne and the spawn, habitat or food of such fish;

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

“specified work” means so much of any work or operation authorised by this Order (other than works required in an emergency) as is in, on, under, over or within 16 metres of a drainage work or is otherwise likely to—

“watercourse” has the meaning given in section 72 of the Land Drainage Act 1991(38).

3.—(1) Before beginning to construct any specified work, DLRL shall submit to the Agency plans of the work and such further particulars available to it as the Agency may reasonably require.

(2) Any such specified work shall not be constructed except in accordance with such plans as may be approved in writing by the Agency, or settled in accordance with paragraph 11 and, where applicable, in accordance with any requirements specified under paragraph 3(3).

(3) Any approval of the Agency required under this paragraph—

(a)shall not be unreasonably withheld or delayed;

(b)shall be deemed to have been given if it is neither given nor refused within 2 months of the submission of plans for approval in writing and, in the case of a refusal, accompanied by a statement of the grounds of refusal;

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

4.  Without prejudice to the generality of paragraph 3, the requirements which the Agency may impose under that paragraph include conditions requiring DLRL 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 to safeguard any drainage work against damage or 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.

5.—(1) Any specified work, and all protective works required by the Agency under paragraph 4, shall be constructed to the reasonable satisfaction of the Agency and the Agency shall be entitled by its officer to watch and inspect the construction of such works.

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

(3) If any part of the works comprising a structure in, over or under a watercourse or within 16 metres of a drainage work is constructed otherwise than in accordance with the requirements of this Schedule, the Agency may by notice in writing require DLRL, at DLRL’s own expense, to comply with the requirements of this Schedule or (if DLRL so elects and the Agency in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the Agency reasonably requires.

(4) Subject to sub-paragraph (5), if within a reasonable period, being not less than 28 days from the date when notice under sub-paragraph (3) is served upon DLRL, it has failed to begin taking steps to comply with the requirements of the notice and thereafter to make reasonably expeditious progress towards their implementation, the Agency may execute the works specified in the notice and any expenditure incurred by it in so doing shall be recoverable from DLRL.

(5) In the event of any dispute as to whether sub-paragraph (3) is applicable to any work in respect of which a notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the Agency shall not except in an emergency exercise the powers conferred by sub-paragraph (4) until the dispute has been determined.

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

7.—(1) Without prejudice to the other provisions of this Schedule, DLRL shall take all such measures as may be reasonably practicable to prevent any interruption in the passage of fish during the construction of any specified work.

(2) If by reason of—

(a)the construction of any specified work, or

(b)the failure of any such work,

damage to the fishery is caused, or the Agency has reasonable grounds to believe to expect that such damage shall be caused, the Agency may serve notice on DLRL 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.

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

8.  DLRL shall indemnify the Agency in respect of all costs, charges and expenses which the Agency may reasonably incur or have to pay or which it may sustain—

(a)in the examination or approval of plans and reports under this Schedule,

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

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

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

(b)any damage to the fishery,

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

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

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

which is caused by the construction of any of the works or any act or omission of DLRL, its contractors, agents, or employees whilst engaged upon any such work.

(2) The Agency shall give DLRL reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the agreement of DLRL, which agreement shall not be unreasonably withheld.

10.—(1) 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 Agency, or to its satisfaction, or in accordance with any directions or award by an arbitrator, shall not relieve DLRL from any liability under the provisions of this Schedule.

(2) Sub-paragraph (1) shall not apply to the extent that such liability arises from a failure by the Agency properly to perform its functions.

11.  Any difference arising between DLRL and the Agency under this Schedule (other than a difference as to its meaning or construction) shall be determined by arbitration in accordance with article 54 of this Order.

Article 43

SCHEDULE 13FOR PROTECTION OF SPECIFIED UNDERTAKERS

Interpretation

1.  In this Schedule—

“apparatus” means—

and includes any structure for the lodging therein of apparatus or for giving access to such apparatus;

“construction” includes execution, placing, altering, replacing, relaying and removal and, in its application to works which include or comprise any operation, means the carrying out of that operation;

“emergency works” has the same meaning as in section 52 of the 1991 Act;

“in”, in a context referring to apparatus in land, includes under, over, across, along or upon land;

“necessary alternative apparatus” means alternative apparatus adequate to enable a specified undertaker to fulfil its statutory or licensed functions in a manner no less efficient than previously;

“plans” includes sections, specifications and method statements;

“specified work” means any of the authorised works which—

the removal of which has not been required under paragraph 8; and

“specified undertaker” means—

or any person succeeding any such company as a licence holder within the meaning of Part I of the Electricity Act 1989(41), a public gas transporter within the meaning of Part I of the Gas Act 1986(42), a water undertaker within the meaning of the Water Industry Act 1991(43) or as a sewerage undertaker within the meaning of Part I of that Act, and “the specified undertaker” in relation to any apparatus means the specified undertaker to whom the apparatus belongs or by whom it is maintained.

Application of Schedule 9

2.  Paragraphs 1(1) and 2 of Schedule 9 to this Order shall not apply in relation to a specified undertaker and paragraphs 1(3) and 1(4) of that Schedule shall have effect as if they referred to apparatus removed under this Schedule.

Apparatus in stopped up streets

3.  Where any street is stopped up under article 12 of this Order, any specified undertaker whose apparatus is in the street shall have the same powers and rights in respect of that apparatus as it enjoyed immediately before the stopping up, but nothing in this paragraph shall affect any right of DLRL or of the specified undertaker to require the removal of that apparatus under paragraph 8 or the power of DLRL to carry out works under paragraphs 19 to 28.

4.  DLRL shall give not less than 28 days' notice in writing of its intention to stop up any street under article 12 of this Order to any specified undertaker whose apparatus is in that street.

On-street apparatus

5.  This Schedule shall not apply to anything done or proposed to be done in relation to or affecting any apparatus in so far as the relations between DLRL and the specified undertaker are regulated by the provisions of Part III of the 1991 Act.

Acquisition of land

6.  DLRL shall not acquire any apparatus from a specified undertaker pursuant to this Order otherwise than by agreement.

7.  DLRL may in exercise of the powers of this Order acquire or appropriate any land in which any apparatus is placed and, following the removal of such apparatus in accordance with the provisions of this Schedule, any rights in that land relating to that apparatus shall be extinguished but no apparatus shall be removed nor shall any right of the specified undertaker to use, maintain, repair, renew or inspect any apparatus be extinguished until any necessary alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the specified undertaker.

Removal of apparatus

8.  Paragraphs 9 to 11 apply where—

(a)DLRL requires the removal of any apparatus for the purpose of constructing any of the authorised works and gives to the specified undertaker not less than 56 days' written notice of that requirement together with a plan of the proposed work and of the proposed position of the alternative apparatus to be provided or constructed; or

(b)in consequence of the exercise or proposed exercise of any of the powers of this Order, the specified undertaker reasonably requires to remove any apparatus.

9.  DLRL shall, if it is practicable to do so, afford to the specified undertaker the necessary rights and facilities for the construction of any necessary alternative apparatus in other land which is available for the purpose and which is held or used, or intended for use, by DLRL for the purpose of its undertaking or in which it has sufficient rights or interests and thereafter for the use, maintenance, repair, renewal and inspection of such apparatus and, if DLRL is unable to obtain those rights and facilities, the specified undertaker shall, on receipt of a written notice to that effect from DLRL, use its best endeavours to obtain the necessary rights and facilities.

10.  Any alternative apparatus to be constructed by the specified undertaker pursuant to paragraph 9 shall be constructed in such manner, and in such line or situation, as may be agreed between the specified undertaker and DLRL or, in default of agreement, determined by arbitration.

11.  The specified undertaker shall, after the manner of construction and the line or situation of any necessary alternative apparatus have been agreed or determined and after the grant to or obtaining by the specified undertaker of any such facilities and rights as are referred to in paragraph 9, proceed with all reasonable despatch to construct and bring into operation the alternative apparatus and thereafter to remove any apparatus required by DLRL to be removed in accordance with paragraph 8.

Removal of apparatus and construction of alternative apparatus by DLRL

12.  Paragraphs 13 to 15 apply to so much of the work necessary in connection with the construction of alternative apparatus, or the removal of apparatus required to be removed, as will take place in any land held or used, or intended for use, by DLRL for the purpose of its undertaking.

13.  If DLRL gives notice in writing to the specified undertaker that it desires to carry out any part of any work to which this paragraph applies, such work, instead of being carried out by the specified undertaker, may be carried out by DLRL with the prior written consent of the specified undertaker (which shall not be unreasonably withheld and shall be subject to any such conditions as are reasonable and proper to protect the apparatus) in accordance with plans and in a position agreed between the specified undertaker and DLRL or, in default of agreement, determined by arbitration, with all reasonable despatch under the superintendence (if given) and to the reasonable satisfaction of the specified undertaker.

14.  In carrying out any work under paragraph 13 DLRL shall comply with all statutory obligations which would have been applicable had the works been carried out by the specified undertaker.

15.  Nothing in paragraph 13 shall authorise DLRL to carry out the actual placing, erection, installation, bedding, packing, removal, connection or disconnection of any apparatus or, where the apparatus is laid in a trench, execute any filling around the apparatus within 300 millimetres (measured in any direction) of the apparatus.

Facilities and rights for alternative apparatus

16.  Where, in accordance with the provisions of this Schedule, DLRL affords to the specified undertaker facilities and rights for the construction, use, maintenance, renewal and inspection in land of DLRL of alternative apparatus in substitution for apparatus to be removed as aforesaid, those facilities and rights shall be granted upon such terms and conditions as may be agreed between DLRL and the specified undertaker or, in default of agreement, determined by arbitration.

17.  In determining the terms and conditions mentioned in paragraph 16 in respect of alternative apparatus to be constructed across or along the authorised works the arbitrator shall—

(a)give effect to all reasonable requirements of DLRL for ensuring the safety of the authorised works and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any such works; and

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

18.  If the facilities and rights to be afforded by DLRL in respect of any alternative apparatus under paragraph 16 and the terms and conditions subject to which the same are to be granted are, in the opinion of the arbitrator, more or less favourable on the whole to the specified undertaker than the facilities, rights, terms and conditions applying to the apparatus to be removed, the arbitrator shall make such provision for the payment of compensation to or by DLRL by or to the specified undertaker in respect thereof as shall appear to him to be reasonable having regard to all the circumstances of the case.

Retained apparatus: protection and plan approval

19.  Not less than 56 days before commencing to construct or renew any specified work, DLRL shall submit to the specified undertaker plans of the works.

20.  In relation to a work which is a specified work because of its proximity to or effect on a sewer, the plans to be submitted to the specified undertaker under paragraph 19 shall be detailed plans describing—

(a)the exact position of the specified work;

(b)the level at which it is proposed to be constructed or renewed;

(c)the manner of its construction or renewal;

(d)the position of all sewers within 15 metres of the specified work or upon which the specified work will impose a load; and

(e)by way of detailed drawings, every alteration proposed to be made to any such sewer.

21.  DLRL shall not commence the construction or renewal of any specified work to which paragraph 20 applies until the specified undertaker has given written approval of the plans so submitted.

22.  Any approval of the specified undertaker required under paragraph 21—

(a)may be given subject to reasonable conditions for any purpose mentioned in paragraph 23;

(b)shall not be unreasonably withheld; and

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

23.  In relation to a work to which paragraph 20 applies, the specified undertaker may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its sewerage system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any sewer.

24.  A specified work shall be constructed (and in the case of any temporary work removed) only in accordance with—

(a)the plans submitted as aforesaid (and, in the case of plans relating to sewers approved, deemed to have been approved or settled by arbitration, as amended from time to time by agreement between DLRL and the specified undertaker); and

(b)all reasonable requirements made by the specified undertaker for the alteration, or otherwise for the protection, of the apparatus, or for securing access thereto;

and the specified undertaker shall be entitled by its officer to watch and inspect the carrying out of the work.

25.  If within 42 days after the submission to it of any plans under paragraph 19, in consequence of the works proposed by DLRL the specified undertaker reasonably requires the removal of any apparatus and gives written notice to DLRL of that requirement, the foregoing provisions of this Schedule shall have effect as if the removal of such apparatus had been required by the specified undertaker under paragraph 8.

26.  Nothing in paragraphs 19 or 25 shall preclude DLRL from submitting at any time, or from time to time, but in no case less than 28 days before commencing the construction of any specified work, a new plan thereof in lieu of the plan previously submitted, and thereupon the provisions of those paragraphs shall apply to, and in respect of, such new plan save that the reference in paragraph 25 to 42 days shall be treated as a reference to 21 days.

27.  DLRL shall not be required to comply with paragraph 19 in a case where it is necessary to carry out emergency works but, in such a case, it shall give to the specified undertaker notice so soon as reasonably practicable, and a plan of the works so soon as reasonably practicable thereafter, and shall comply with paragraph 24 so far as reasonably practicable in the circumstances.

28.  Nothing in paragraph 27 shall entitle DLRL to carry out works to any apparatus but, upon receipt of notice from DLRL, the specified undertaker shall proceed to carry out such works as may be required with all reasonable despatch.

Co-operation

29.  Where in consequence of the proposed construction of any of the authorised works, DLRL or a specified undertaker requires the removal of apparatus under paragraph 8 or a specified undertaker makes requirements for the protection or alteration of apparatus under paragraph 24, DLRL shall use its best endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised works and each specified undertaker shall use its best endeavours to co-operate with DLRL for that purpose.

Access

30.  If in consequence of the exercise of the powers of this Order the access to any apparatus is materially obstructed DLRL shall provide such alternative means of access to such apparatus as will enable the specified undertaker to maintain or use the apparatus no less effectively than was possible before such obstruction.

Expenses

31.  Subject to the provisions of the following paragraphs of this Schedule, DLRL shall repay to the specified undertaker the reasonable expenses incurred by the specified undertaker in, or in connection with—

(a)the inspection, removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus under any provision of this Schedule (including any costs reasonably incurred or compensation properly paid in connection with the acquisition of rights or exercise of statutory powers for such apparatus);

(b)the cutting off of any apparatus from any other apparatus, or the making safe of any redundant apparatus in consequence of the exercise by DLRL of any power under this Order;

(c)the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the exercise by DLRL of any power under this Order; and

(d)any other work or thing rendered reasonably necessary in consequence of the exercise by DLRL of any such power;

within a reasonable time of being notified by the specified undertaker that it has incurred such expenses.

32.  There shall be deducted from any sum payable under paragraph 31 the value of any apparatus removed under the provisions of this Schedule, that value being calculated after removal.

33.  If in pursuance of the provisions of this Schedule—

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

(b)apparatus (whether existing apparatus or alternative apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated;

and the placing of apparatus of that type or capacity or of those dimensions, or the placing of apparatus at that depth, as the case may be, is not agreed by DLRL or, in default of agreement, is not determined by arbitration to be necessary having regard, among other things, to the nature of the authorised works, then, if such placing involves cost in the construction of works under paragraphs 9 to 11 exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this paragraph would be payable to the specified undertaker by virtue of paragraph 31 shall be reduced by the amount of that excess.

34.  For the purposes of paragraph 33—

(a)an extension of apparatus to a length greater than the length of existing apparatus shall not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended serves a purpose (either additional to or instead of that served by the existing apparatus) which was not served by the existing apparatus; and

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

35.  An amount which apart from this paragraph would be payable to the specified undertaker in respect of works by virtue of paragraphs 31 to 34 shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the specified undertaker any financial benefit by deferment of the time for renewal of the apparatus or of the system of which it forms part in the ordinary course, be reduced by the amount which represents that benefit as calculated in accordance with the Code of Practice entitled “Measures Necessary where Apparatus is Affected by Major Works (Diversionary Works)” and dated June 1992 and approved by the Secretary of State on 30th June 1992, as revised and re-issued from time to time.

36.  Paragraphs 31 to 35 shall not apply where the authorised works constitute major transport works for the purposes of Part III of the 1991 Act, but instead—

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

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

37.  In any case where work is carried out by DLRL pursuant to paragraphs 13 to 15 and, if such work had been carried out by the specified undertaker, the repayment made to the specified undertaker under paragraph 31 would fall to be reduced pursuant to paragraphs 33 to 35, the specified undertaker shall pay to DLRL such sum as represents the amount of that reduction.

Indemnity

38.  If by reason or in consequence of the construction, maintenance or failure of any of the authorised works, including any works carried out by DLRL pursuant to paragraph 13 or protective works required by a condition imposed under paragraph 22(a) or required under paragraph 24(b), or any subsidence resulting from any of those works, any damage shall be caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or other property of the specified undertaker, or there is any interruption in any service provided by the specified undertaker, DLRL shall repay the cost reasonably incurred by the specified undertaker in making good such damage, or restoring the supply, and shall—

(a)make reasonable compensation to the specified undertaker for any loss sustained by it; and

(b)indemnify the specified undertaker against all claims, demands, proceedings, costs, damages and expenses which may be made or taken against or recovered from, or incurred by, the specified undertaker;

by reason or in consequence of any such damage or interruption; and the fact that any act or thing may have been done by the specified undertaker on behalf of DLRL or in accordance with plans approved by the specified undertaker or in accordance with any requirement of the specified undertaker or under its supervision shall not, subject to paragraph 39, excuse DLRL from any liability under the provisions of this paragraph.

39.  Nothing in paragraph 38 shall impose any liability on DLRL with respect to any damage or interruption to the extent that such damage or interruption is attributable to the neglect or default of the specified undertaker, its officers, servants, contractors or other agents.

40.  The specified undertaker shall give to DLRL reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made without the prior consent of DLRL which shall not be unreasonably withheld.

Exercise of protective and survey powers

41.  DLRL shall, so far as is reasonably practicable, so exercise the powers conferred by article 20 of this Order as not to obstruct or render less convenient the access to any apparatus.

42.  DLRL shall not, in the exercise of the powers of section 11(3) of the 1965 Act, as applied by this Order, or of article 22 of this Order, make any trial holes which interfere with any apparatus without the consent of the specified undertaker (which shall not be unreasonably withheld).

Arbitration

43.  Any difference arising between DLRL and a specified undertaker under this Schedule (other than a difference as to its meaning or construction) shall be determined by arbitration in accordance with article 54 of this Order.

Transfer of powers

44.  DLRL shall give notice to every specified undertaker if any of the powers of DLRL under this Order are transferred to another person in accordance with article 46 of this Order and any such notice shall be given within 14 days of any such transfer becoming effective and shall describe or give (as appropriate)—

(a)the nature of the functions to be transferred;

(b)the extent of that transfer;

(c)the geographical area to which the transfer relates;

(d)the name and address of the transferee; and

(e)the effective date of the transfer.

45.  The obligation to give notice under paragraph 44 to a successor in title to a specified undertaker named in paragraph 1 shall only apply to the extent that DLRL has been informed by notice in writing by that named undertaker, or by a successor in title to that named undertaker, as the case may be, of the name and address of that successor in title.

Notices

46.  Any notice in writing to be given by DLRL to a specified undertaker under this Schedule shall be deemed effectively given if sent by recorded delivery or by registered letter addressed to the registered office of that specified undertaker.

Article 44

SCHEDULE 14FOR PROTECTION OF BRITISH WATERWAYS BOARD

1.—(1) For the protection of the Board the following provisions shall, unless otherwise agreed in writing between DLRL and the Board, have effect.

(2) In this Schedule—

“construction”, in relation to any specified work or protective work, includes—

and “construct” and “constructed” have corresponding meanings;

“the designated areas” means those parts of the designated areas, as defined by section 2 of the 1994 Act, that were transferred to the Board by the London Docklands Development Corporation (Transfer of Functions) Order 1998(44);

“detriment” means any damage to a dock area or any other property of the Board and, without prejudice to the generality of that meaning, includes—

“dock area” means the designated areas and includes the waterside and any works, lands or premises belonging to the Board, or under its management or control, and held or used by the Board in connection with the designated areas;

“the engineer” means an engineer appointed by the Board for the purpose in question;

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

“protective work” means a work constructed under sub-paragraph 8(3)(a);

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

“the waterside” means so much of the waterside as defined by section 2 of the 1994 Act, as is comprised within the foregoing definition of “the designated areas”.

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

3.—(1) DLRL shall not in the exercise of the powers conferred by this Order permanently obstruct or interfere with pedestrian or vehicular access to a dock area unless such permanent obstruction or interference with such access is with the consent of the Board.

(2) Nothing in article 19 shall authorise DLRL—

(a)to discharge any water directly or indirectly into a dock area; or

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

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

(3) DLRL shall not exercise the powers conferred by article 20 in relation to any building forming part of a dock area, or situated on land or property of the Board forming part of a dock area, unless such exercise is with the consent of the Board.

(4) DLRL shall not exercise the powers conferred by article 22 or the powers conferred by section 11(3) of the 1965 Act, in relation to a dock area unless such exercise is with the consent of the Board.

(5) DLRL shall not exercise the powers conferred by sections 271 or 272 of the 1990 Act, as applied by Schedule 9 to this Order, so as to permanently divert any right of access to a dock area, but such right of access may be permanently diverted with the consent of the Board.

(6) The consent of the Board pursuant to any of sub-paragraphs (1), (3), (4) and (5) and the approval of plans under sub-paragraph (2) shall not be unreasonably withheld or delayed but may be given subject to reasonable conditions which in the case of article 19 may include conditions—

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

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

4.  DLRL shall not use any land or property of the Board forming part of a dock area for the passage or siting of vehicles, plant or machinery employed in the construction of the specified work other than—

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

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

(i)for the prevention of detriment; or

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

5.  If in consequence of or in connection with the exercise of the powers of this Order any part of a way over land forming part of a dock area or any public right of way giving access to a dock area (“the closed section”) is temporarily closed to persons on foot or on cycles and there is no way which provides a reasonable alternative, DLRL shall to the reasonable satisfaction of the Board, provide in substitution as sufficient and convenient way as is reasonably practicable between the points of commencement and termination of the closed section for such time as the closure continues.

6.  Where so required by the engineer DLRL shall to the reasonable satisfaction of the engineer fence off any specified work or protective work or take such other steps as the engineer may require to be taken for the purpose of separating a specified work or a protective work from a dock area, whether on a temporary or permanent basis or both.

7.—(1) Before the commencement of the initial construction of any part of the specified works and again following completion of the specified works DLRL shall bear the reasonable cost of the carrying out by a qualified engineer (“the engineer”) to be approved by the Board and DLRL of surveys (“the surveys”) of so much of the dock area and of any land and existing works of DLRL which may provide support for the dock area as will or may be affected by the specified works.

(2) For the purposes of the surveys DLRL shall—

(a)on being given reasonable notice (save in case of emergency, when immediate access shall be afforded) afford reasonable facilities to the engineer for access to the site of the specified works and to any land and existing works of DLRL which may provide support for the dock area as will or may be affected by the specified works; and

(b)supply the engineer as soon as reasonably practicable with all such information as he may reasonably require with regard to such existing works of DLRL and to the specified works or the method of construction thereof.

(3) The reasonable costs of the surveys shall include the costs of any dewatering or reduction of the water level of any part of the dock area (where reasonably required) which may be effected to facilitate the carrying out of the surveys and the provisions of this schedule shall apply with all necessary modifications to any such dewatering or reduction in the water level as though the same were specified works.

(4) Copies of the surveys shall be provided to both the Board and DLRL.

8.—(1) DLRL shall before commencing construction of any specified work including any temporary works supply to the Board proper and sufficient plans of that work and such further particulars available to it as the Board may within 14 days of the submission of the plans reasonably require for the approval of the engineer and shall not commence such construction of any specified work until plans of that work have been approved in writing by the engineer or settled by arbitration.

(2) The approval of the engineer under sub-paragraph (1) shall not be unreasonably withheld or delayed, and if within 56 days after such plans (including any other particulars reasonably required under sub-paragraph (1)) have been supplied to the Board the engineer has not intimated his disapproval of those plans and the grounds of his disapproval he shall be deemed to have approved the plans as submitted.

(3) When signifying his approval of the plans the engineer may specify—

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

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

and such protective work shall be constructed by the Board or (if the Board so desires) by DLRL with all reasonable dispatch and DLRL shall not commence the construction of any specified work until the engineer has notified DLRL that the protective work has been completed to his reasonable satisfaction.

9.  Without prejudice to its obligations under the foregoing provisions of this Schedule DLRL shall consult the Board on—

(a)the design and appearance of the specified works, including the materials to be used for their construction; and

(b)the environmental effects of the specified works;

and shall have regard to such views as may be expressed by the Board, to the extent that these accord with the requirements of the local planning authority in response to such consultation pursuant, in particular, to the requirements imposed on the Board by section 22 (General environmental and recreational duties) of the British Waterways Act 1995(45) and to the interest of the Board in preserving and enhancing the environment of dock areas.

10.  DLRL shall give to the engineer 56 days' notice of its intention to commence the construction of any of the specified or protective works, or, in the case of repair carried out in an emergency, such notice as may be reasonably practicable so that, in particular, the Board may where appropriate arrange for the publication of notices bringing those works to the attention of users of a dock area.

11.  DLRL shall provide and maintain at its own expense in the vicinity of any specified or protective work such temporary lighting and such signal lights for the control of navigation as the engineer may reasonably require during the construction or failure of the specified or protective work.

12.—(1) Any specified works shall, when commenced, be constructed—

(a)with all reasonable dispatch in accordance with the plans approved or deemed to have been approved or settled as aforesaid and with any requirements made under paragraph 8(3)(a);

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

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

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

(2) Nothing in this Order shall authorise DLRL to make or maintain any permanent works in or over a dock area so as to impede or prevent (whether by reducing the headroom or depth of water available for vessels, or the width of a dock area or otherwise) the passage of any vessel such as would have been capable of navigating a dock area on 29th June 2004.

(3) Following the completion of the construction of the specified work DLRL shall restore a dock area to a condition no less satisfactory than its condition immediately prior to the commencement of that work.

13.—(1) Any pile, stump or other obstruction which becomes exposed in consequence of a specified work shall be removed by DLRL or, if it is not reasonably practicable to remove it, shall be cut off at such level below the bed of a dock area as the Board may direct.

(2) If DLRL fail to remove any such pile, stump or other obstruction within 28 days after receipt of written notice from the Board requiring the removal, the Board may carry out the removal and recover its costs from DLRL.

14.  DLRL shall not in the course of constructing any specified work or protective work or otherwise in connection therewith do or permit anything which may result in the pollution of a dock area or the deposit of materials therein and shall take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph; but this provision shall not prevent DLRL from carrying out works within a dock area.

15.—(1) DLRL shall at all times on being given reasonable notice allow reasonable facilities to the engineer for access to any specified work during its construction; but such facilities for access shall be subject to DLRL’s reasonable requirements for ensuring the safety of the railway and of the engineer and other persons working on the railway.

(2) DLRL shall supply the engineer with all such information as he may reasonably require with regard to any specified work or the method of constructing it.

16.—(1) If during the construction of a specified work or during a period of 24 months after the completion of a specified work any alterations or additions, either permanent or temporary, to a dock area are reasonably necessary in consequence of the construction of the specified work in order to avoid detriment, and the Board gives to DLRL reasonable notice of its intention to carry out such alterations or additions (which shall be specified in the notice), DLRL shall pay to the Board the reasonable cost of those alterations or additions including, in respect of any such alterations and additions as are to be permanent, a capitalised sum representing the increase of the costs which may be expected to be reasonably incurred by the Board in maintaining, working and, when necessary, renewing any such alterations or additions.

(2) If the cost of maintaining, working or renewing a dock area is reduced in consequence of any such alterations or additions a capitalised sum representing such saving shall be set off against any sum payable by DLRL to the Board under this paragraph.

17.—(1) DLRL shall upon completion of any part of any permanent specified work remove as soon as practicable any temporary works and materials for temporary works constructed or placed in, on, over or under a dock area in connection with that part of the work.

(2) All temporary works shall be removed to the reasonable satisfaction of the engineer; and in the construction, maintenance and removal of such works DLRL shall not cause unavoidable detriment.

18.  If at any time after the completion of a specified work, not being a work vested in the Board, the Board gives notice to DLRL informing it that the state of maintenance of the work appears to be such that the work is causing or likely to cause detriment, DLRL shall, on receipt of such notice, take such steps as may be reasonably necessary to put the work in such state of maintenance as not to cause such detriment.

19.  Any additional expenses which the Board may reasonably incur in altering, reconstructing or maintaining a dock area under any powers existing at the making of this Order by reason of the existence of a specified work shall, provided that 56 days' previous notice of the commencement of such alteration, reconstruction or maintenance has been given to DLRL, be repaid by DLRL to the Board.

20.  DLRL shall repay to the Board all fees, costs, charges and expenses reasonably incurred by the Board—

(a)in constructing any protective works under the provisions of paragraph 8(3)(a) including, in respect of any permanent protective works, a capitalised sum representing the cost of maintaining and renewing those works;

(b)in respect of the approval by the engineer of plans submitted by DLRL and the supervision by him of the construction or repair of any specified work and any protective work;

(c)in respect of the employment during the period of the initial construction of any specified work or protective work of any inspectors, watchmen and other persons whom it shall be reasonably necessary to appoint for inspecting, watching and lighting any dock area and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified work or any protective work; and

(d)in bringing the specified work or any protective work to the notice of users of a dock area.

21.—(1) If any detriment shall be caused by the construction or failure of the specified work or the protective works, DLRL (if so required by the Board) shall make good such detriment and shall pay to the Board all reasonable expenses to which the Board may be put, and compensation for any loss which the Board may sustain, in making good or otherwise by reason of the detriment.

(2) DLRL shall be responsible for and make good to the Board all costs, charges, damages, expenses and losses not otherwise provided for in this Schedule which may be occasioned to or reasonably incurred by the Board—

(a)by reason of the construction of any specified work or a protective work or the failure thereof; or

(b)by reason of any act or omission of DLRL or of any person in its employ or of its contractors or others whilst engaged upon the construction of any specified work or of a protective work;

and subject to sub-paragraph (4) DLRL shall effectively indemnify and hold harmless the Board from and against all claims and demands arising out of any of the matters referred to in paragraphs (a) and (b).

(3) The fact that any act or thing may have been done by the Board on behalf of DLRL or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under his supervision or in accordance with any directions or awards of an arbitrator shall not (if it was done without negligence on the part of the Board or of any person in its employ or of its contractors or agents) excuse DLRL from any liability under the provisions of this paragraph.

(4) The Board shall give DLRL reasonable notice of any such claim or demand as aforesaid and no settlement or compromise of such a claim or demand shall be made without the prior consent of DLRL.

22.  Where under any provision of this Schedule the Board or DLRL (as the case may be) is entitled to a capitalised sum, it shall provide such details of the formula by which the sum is calculated as may reasonably be requested by the party required to pay the sum.

23.  Except as provided by this Order, nothing in this Order shall prejudice or derogate from the estates, rights, interests, privileges, liberties or franchises of the Board or alter or diminish any power, authority or jurisdiction vested in the Board at the commencement of this Order.

24.  Any difference arising between DLRL and the Board under this Schedule (other than a difference as to the meaning or construction of this Schedule) shall be referred to and settled by arbitration in accordance with article 54.

Article 45

SCHEDULE 15TRAFFIC REGULATION

Explanatory Note

(This note is not part of the Order)

This Order authorises Docklands Light Railway Limited (DLRL) to construct and maintain works to increase capacity upon the Docklands Light Railway between Tower Gateway Station, Poplar Station and Lewisham Station and for those purposes compulsorily or by agreement to acquire land and rights in land.

A copy of the deposited plans and the deposited sections prescribed by rules 10(5), 12(1), 12(3) and 12(5) of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000 (S.I. 2000/2190), may be inspected free of charge during working hours at the offices of Docklands Light Railway Limited, P.O. Box 154, Castor Lane, Poplar, London E14 0DX.