PART 2E+WWORKS PROVISIONS

Principal PowersE+W

Power to construct and maintain worksE+W

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

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

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

(a)construct and maintain such offices and other buildings, yards, machinery, plant, apparatus and other works and conveniences as the promoter thinks fit;

(b)make, provide and maintain all such approaches, lifts, stairs, escalators, ramps, passages, means of access, shafts and stagings as the promoter thinks fit;

(c)make and maintain junctions and communications (including the provision of steps or ramps for the use of persons on foot) with any highway or access way intersected or interfered with by, or contiguous to, any of those works, and widen or alter any highway or access way for the purpose of connecting it with any of those works or another highway, or of crossing under or over the highway or access way;

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

(e)alter or remove any structure erected upon any highway or adjoining land;

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

(g)carry out and maintain landscaping and other permanent mitigation works to mitigate any adverse effects of the construction, maintenance or operation of the scheduled works including the execution of works to alter the layout of streets; and

(h)carry out and maintain works for the benefit or protection of premises affected by the scheduled works.

(4) Subject to paragraph (5), the promoter may 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 scheduled works.

(5) Paragraphs (3) and (4) only authorise the carrying out or maintenance of works outside the limits of deviation if such works are carried out—

(a)on land specified in columns (1) and (2) of Schedule 2 (acquisition of certain lands for ancillary works) for the purpose specified in relation to that land in column (3) of that Schedule; and

(b)on land specified in columns (1) and (2) of Schedule 10 (land of which temporary possession may be taken) for the purposes specified in column (3) of that Schedule.

(6) In constructing the scheduled works, the promoter may, regardless of any enactment that provides otherwise, do either or both of the following—

(a)use such parts of the original viaduct as it may require for the purposes of the authorised works; and

(b)take down and remove such parts of the original viaduct as the promoter does not require.

(7) The following enactments do not apply to anything done under this Order—

(a)section 109 of the Water Resources Act 1991(1);

(b)section 23 of the Land Drainage Act 1991(2);

(c)Part 4 of the Eels (England and Wales) Regulations 2009(3); and

(d)any byelaws made under the above enactments.

(8) Paragraph (7) is subject to Schedule 16 (for the protection of the Environment Agency).

(9) In this article “the original viaduct” means that part of the existing viaduct at Leeds railway station carrying the railways of Network Rail into the station.

Power to deviateE+W

5.—(1) In constructing or maintaining any of the scheduled works, the promoter may subject to paragraph (2)—

(a)deviate laterally from the lines or situations shown on the deposited plans to the extent of the limits of deviation for that work; and

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

(i)to any extent not exceeding 2 metres upwards; or

(ii)to any extent not exceeding 2 metres downwards.

(2) Notwithstanding paragraph (1)(b), the promoter may deviate vertically from the levels shown on the deposited sections to any extent downwards in respect of the vertical piles supporting Work No. 1.

StreetsE+W

Power to execute street worksE+W

6.—(1) The promoter may, for the purposes of the authorised works, enter upon so much of any of the streets specified in Schedule 3 (streets subject to street works) 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 and maintain apparatus in the street or change its position; and

(c)execute any works required for or incidental to any works referred to in sub-paragraphs (a) and (b).

(2) This article is subject to paragraph 3 of Schedule 12 (provisions relating to statutory undertakers etc.).

(3) In this article “apparatus” has the same meaning as in Part 3 of the 1991 Act.

Power to alter layout etc. of streetsE+W

7.—(1) The promoter may alter the layout of, and carry out other ancillary works in the street specified in column (1) of Schedule 4 (street subject to alteration of layout) in the manner specified in relation to that street in column (2) of that Schedule.

(2) Without limiting the scope of the specific powers conferred by article 4 (power to construct and maintain works) or paragraph (1) but subject to paragraph (3) the promoter may, for the purpose of constructing, maintaining or using the authorised works, alter the layout of the street specified in column (1) of Schedule 4 and the layout of any street having a junction with such a street; and, without limiting the scope of that power, the promoter may—

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

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

(c)reduce the width of the carriageway of the street by forming a reserved area in the street or by carrying out other works for the purpose of regulating the passage of vehicles along the street;

(d)carry out works for the provision, alteration or removal of parking places and loading bays;

(e)carry out traffic calming works which are of a description prescribed in regulation 3 of the Highways (Traffic Calming) Regulations 1999(4) and which are carried out in compliance with those Regulations; and

(f)carry out works to the carriageway of the street for the purpose of deterring or preventing vehicles from passing along the street.

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

Stopping up of streetsE+W

8.—(1) Subject to the provisions of this article, the promoter may, in connection with the construction of the authorised works, stop up the street specified in columns (1) and (2) of Schedule 5 (street to be stopped up for which a substitute to be provided) to the extent specified, in column (3) of that Schedule.

(2) The street specified in columns (1) and (2) of Schedule 5 must not be wholly or partly stopped up under this article unless—

(a)the new street to be substituted for it, which is specified in column (4) 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 for the passage of such traffic as could have used the street to be stopped up is first provided and then maintained by the promoter, to the reasonable satisfaction of the street authority, between the commencement and termination points for the stopping up of the street until the completion and opening of the new street in accordance with sub-paragraph (a).

(3) Any person who suffers loss by the suspension or extinguishment of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(4) This article is subject to paragraph 2 of Schedule 12 (provisions relating to statutory undertakers etc.).

Temporary stopping up of streetsE+W

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

(a)divert the traffic from the street; and

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

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

(3) Without limitation on the scope of paragraph (1), the promoter may exercise the powers conferred by this article in relation to the streets specified in columns (1) and (2) of Schedule 6 (streets to be temporarily stopped up) to the extent specified in column (3) of that Schedule.

(4) The promoter must not exercise the powers conferred by this article—

(a)in relation to any street specified as mentioned in paragraph (3) without first consulting the street authority; and

(b)in relation to any other street without the consent of the street authority which may attach reasonable conditions to any consent, but such consent must not be unreasonably withheld.

(5) Any person who suffers loss by the suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) Any street subject to the exercise of the powers conferred by paragraph (1) may be used as a temporary working site for the purposes of the construction of the authorised works and the promoter may erect on any street such temporary works including temporary buildings and storage facilities as the promoter considers convenient and necessary.

(7) In Schedule 6—

“Granary Wharf Piazza” means the lands numbered 105, 106, 109, 110, 111, 112, 117 and 118 on the deposited plans.

Access to worksE+W

10.  The promoter may, for the purposes of the authorised works—

(a)form and lay out means of access, or improve existing means of access, in the locations specified in columns (1) and (2) of Schedule 7 (access to works) at or about the points marked “A” on the deposited plans; and

(b)form and lay out such other means of access or improve existing means of access, at such locations within the Order limits as the promoter reasonably requires for the purposes of the authorised works, as may be approved by the highway authority, but such approval must not be unreasonably withheld.

Construction and maintenance of new or altered streetsE+W

11.—(1) Any street (other than any part of Work No. 1 and 1A) to be constructed under this Order must be completed to the reasonable satisfaction of the highway authority and must be maintained by and at the expense of the promoter for a period of 12 months from its completion and from the expiry of that period by and at the expense of the highway authority.

(2) Where a street is altered or diverted under this Order, the altered or diverted part of the street must, when completed to the reasonable satisfaction of the street authority, be maintained by and at the expense of the promoter for a period of 12 months from its completion and from the expiry of that period by and at the expense of the street authority.

(3) In any action against the promoter in respect of loss or damage resulting from any failure by it to maintain a street under this article, it is a defence (regardless of any other defence or the application of the law relating to contributory negligence) to prove that the promoter had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.

(4) For the purposes of a defence under paragraph (3), the court must in particular have regard to the following matters—

(a)the character of the street and the traffic which was reasonably to be expected to use it;

(b)the standard of maintenance appropriate for a street of that character and used by such traffic;

(c)the state of repair in which a reasonable person would have expected to find the street;

(d)whether the promoter knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street;

(e)where the promoter could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed,

but for the purposes of such a defence it is not relevant to prove that the promoter had arranged for a competent person to carry out or supervise the maintenance of the part of the street to which the action relates unless it is also proved that the promoter had given the competent person proper instructions with regard to the maintenance of the street and that the competent person had carried out those instructions.

Agreements with street authoritiesE+W

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

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

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

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

(d)the execution in the street of any of the works referred to in article 6(1) (power to execute street works).

(2) Such an agreement may, without limitation on the scope of paragraph (1)—

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

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

Supplemental powersE+W

Discharge of waterE+W

13.—(1) The promoter 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, public sewer or drain.

(2) Any dispute arising from the exercise of the powers conferred by paragraph (1) to connect to or use a public sewer or drain is to be determined as if it were a dispute under section 106 of the Water Industry Act 1991(5).

(3) The promoter must not discharge any water into any watercourse, public sewer or drain except with the consent of the person to whom it belongs; and such consent may be given subject to such terms and conditions as that person may reasonably impose, but must not be unreasonably withheld.

(4) The promoter must not make any opening into any public sewer or drain except—

(a)in accordance with plans approved by the person to whom the sewer or drain belongs, but such approval must not be unreasonably withheld; and

(b)where that person has been given the opportunity to supervise the making of the opening.

(5) The promoter must 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) The promoter must 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, oil or matter in suspension.

(7) Nothing in this article overrides the requirement for an environmental permit under regulation 12(1)(b) of the Environmental Permitting (England and Wales) Regulations 2010(6).

(8) If a person who receives an application for consent or approval fails to notify the promoter of a decision within 28 days of receiving an application for consent under paragraph (3) or approval under paragraph (4)(a) that person is deemed to have granted consent or given approval, as the case may be.

(9) In this article—

(a)“public sewer or drain” means a sewer or drain which belongs to the Environment Agency, a local authority or a sewerage undertaker; and

(b)other expressions, excluding watercourse, used both in this article and in the Water Resources Act 1991(7) have the same meaning as in that Act.

Protective works to buildings, roads and apparatus of a statutory undertakerE+W

14.—(1) Subject to the following provisions of this article, the promoter may at its own expense and from time to time carry out such protective works to—

(a)any building; or

(b)any road; or

(c)any apparatus of a statutory undertaker,

lying within the Order limits as the promoter 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, road or apparatus of any part of the authorised works; or

(b)after the completion of the construction of that part of the authorised works in the vicinity of the building, road or apparatus 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 the promoter may, subject to paragraph (5), enter and survey any building, go onto and survey any road or access and survey any apparatus falling within paragraph (1) and any land within the curtilage of the building or in which the apparatus is located.

(4) For the purpose of carrying out protective works under this article to a building, road or apparatus the promoter may—

(a)enter the building, go onto the road or access the apparatus and any land within the curtilage of the building or in which the apparatus is located; and

(b)where the works cannot be carried out reasonably conveniently without entering land which is adjacent to the building (but outside its curtilage), or adjacent to the road or land in which apparatus is located, enter the adjacent land (but not any building erected on it).

(5) Before exercising—

(a)a right under paragraph (1) to carry out protective works to a building, road or apparatus;

(b)a right under paragraph (3) to enter a building, go onto a road or access apparatus and land within the curtilage of the building or in which the apparatus is located;

(c)a right under paragraph (4)(a) to enter a building, go onto a road or access apparatus and land within the curtilage of the building or in which the apparatus is located; or

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

the promoter must, except in the case of emergency, serve on the owners and occupiers of the building or land or owner of the road or the apparatus 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 a notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land or owners of the road or the apparatus 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, go onto a road or access apparatus to be referred to arbitration under article 51 (arbitration).

(7) The promoter must compensate the owners and occupiers of any building or land or owners of the road or the apparatus in relation to which the powers conferred by 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 or road or apparatus falling within paragraph (1); and

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

the promoter must compensate the owners and occupiers of the building or road or apparatus for any loss or damage sustained by them.

(9) Without affecting article 50 (no double recovery) nothing in this article relieves the promoter from any liability to pay compensation under section 10(2) of the 1965 Act.

(10) Any compensation payable under paragraph (7) or (8) is to be determined, in case of dispute, under Part 1 of the 1961 Act.

(11) This article shall not apply to any land within the limits of land to be temporarily used for the oversailing of equipment.

(12) In this article—

“protective works” in relation to a building, road or apparatus means—

“road” includes any structures supporting the road.

Power to survey and investigate landE+W

15.—(1) The promoter may for the purposes of this Order—

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

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

(c)without limitation on the scope of sub-paragraph (a), carry out ecological or archaeological investigations on the land;

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

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

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

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

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

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

(4) No trial holes are to be made under this article—

(a)in a carriageway or footway without the consent of the highway authority; or

(b)in a private street without the consent of the street authority,

but such consent must not be unreasonably withheld.

(5) The promoter must compensate the owners and occupiers of the land for any loss or damage arising by reason of the exercise of the powers conferred by this article, such compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

(6) Nothing in this article overrides the requirement for scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979 (8).

(7) If either a highway authority or a street authority fails to notify the promoter of its decision within 14 days of receiving an application for consent under paragraph (4), that authority is deemed to have granted consent.

(8) This article does not apply to any land within the limits of land to be temporarily used for the oversailing of equipment.

NavigationE+W

Temporary closure of, and works in the Aire and Calder NavigationE+W

16.—(1) The promoter may, in connection with the construction of the authorised works—

(a)temporarily interfere with the relevant part of the waterway by constructing or maintaining caissons, cofferdams or other temporary works at any point within the relevant part of the waterway as the promoter considers necessary or expedient;

(b)temporarily moor or anchor barges or other vessels or craft in the relevant part of the waterway;

(c)load or unload into and from such barges, other vessels or craft as are referred to in sub-paragraph (b) equipment, machinery, soil and any other materials;

(d)temporarily close to navigation the relevant part of the waterway; and

(e)temporarily remove the water from the relevant part of the waterway that is so interfered with or closed.

(2) During the period of any closure referred to in paragraph (1)(d), all rights of navigation and other rights relating to, and any obligations of the Trust to manage, the relevant part of the waterway so closed are to be suspended and unenforceable against the Trust.

(3) The power conferred by paragraph (1) must be exercised in a way which secures—

(a)that no more of the relevant part of the waterway is closed to navigation at any time than is necessary in the circumstances; and

(b)that, if complete closure to navigation of the relevant part of the waterway becomes necessary, reasonable steps are taken to secure that the period of closure is kept to a minimum and that the minimum obstruction, delay or interference is caused to vessels or craft which may be using or intending to use the part so closed.

(4) Any person who suffers loss or damage as a result of the suspension or interruption of any right under this article is entitled to compensation to be determined, in case of dispute, under Part 1 of the 1961 Act.

Extinguishment of navigation rights etc. in the Aire and Calder NavigationE+W

17.—(1) Without limitation on the scope of section 105(5) and (6) of the Transport Act 1968(9) any rights of navigation over the relevant part of the waterway whether public or private and however arising are extinguished to the extent that such rights are adversely affected by reason of the construction, use and maintenance of the authorised works.

(2) The promoter must pay compensation to any person who suffers damage or loss by reason of the extinguishment of rights of navigation by virtue of paragraph (1) and any question as to the amount of compensation so paid is to be determined by the tribunal.

Navigation etc. in vicinity of scheduled worksE+W

18.—(1) Any person who, other than in an emergency or with some other reasonable cause—

(a)moors a vessel to any part of the scheduled works without the consent of the promoter;

(b)allows any vessel to drift in the vicinity of the scheduled works, except for the purpose of passing through the lock gates or waiting to do so; or

(c)moors a vessel in the vicinity of the scheduled works so as to cause an obstruction to the access to any part of the scheduled works,

is guilty of an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) In this article—

“in the vicinity of the scheduled works” means on or in that part of the relevant waterway within the limits of deviation; and

“lock gates” means the lock gates to the entrance to the Leeds and Liverpool Canal and shown marked by the point “X” on the deposited plans.

Removal of vesselsE+W

19.—(1) Subject to paragraphs (2) and (3), whenever any vessel—

(a)is sunk, stranded or abandoned within the relevant part of the waterway; or

(b)left or moored within the relevant part of the waterway without lawful authority,

the promoter may raise, remove, store or otherwise dispose of a vessel to which this paragraph applies where (except in an emergency) it has given not less than 21 days’ written notice to the owner of the vessel, unless it is not practicable after reasonable inquiry to ascertain the name and address of the owner.

(2) Where the promoter proposes to raise, remove, store or otherwise dispose of a vessel to which paragraph (1) applies, the promoter must first give the Trust not less than 28 days’ written notice of its intention to do so.

(3) Where the promoter has given such notice as referred to in paragraph (2) and where—

(a)it is within the powers of the Trust to deal with the vessel; and

(b)the promoter having given not less than 28 days’ written notice to the Trust, is informed by the Trust within that time that the Trust intends to itself raise, remove, store or otherwise dispose of a vessel to which paragraph (1) applies; and

(c)the Trust does raise, remove, store or otherwise dispose of a vessel to which paragraph (1) applies within a reasonable time afterwards,

then the promoter, may not raise, remove, store or otherwise dispose of a vessel to which paragraph (1) applies except in a case of an emergency, in which case the promoter is not required to give the Trust the notice in paragraph (2) provided that the Trust is informed of the action as soon as possible afterwards.

(4) Any notice given by the promoter under paragraph (1) must—

(a)identify the vessel in respect of which the notice is served and its approximate location;

(b)state that if the owner fails to raise and remove the vessel before the expiry of the period specified in the notice, the promoter may raise and remove the vessel and recover all expenses reasonably incurred in doing so; and

(c)indicate that there is a right to refer the matter to arbitration under article 20 (arbitration in respect of removal of vessels).

(5) The promoter may recover from the owner of any such vessel all expenses reasonably incurred by the promoter in respect of the raising, removal, storage or disposal of the vessel or in raising, removing, storing or disposing of any goods raised or removed from the vessel.

(6) In any proceedings by the promoter against a person served with a notice under paragraph (1) for the recovery of any expenses which the promoter is entitled to recover from that person under paragraph (5), it is not open to that person to raise any question which could have been raised on a referral to arbitration under article 51 (arbitration).

(7) Subject to paragraph (8), if any vessel to which paragraph (1) applies is not, within 6 weeks of its removal by the promoter, proved to the promoter’s satisfaction to belong to any claimant, the vessel, together with any such goods, is to vest in the promoter.

(8) If within 12 months of its removal a claim is made to the vessel by a person who subsequently proves to the satisfaction of the promoter that the person was the owner of the vessel, or has become the owner since the vessel was sunk, stranded, abandoned, left or moored as mentioned in paragraph (1), then the promoter must—

(a)if the vessel is unsold, permit that person to retake it with any goods on the vessel upon payment of the expenses referred to in paragraph (5); or

(b)if the vessel and the goods on the vessel have been sold, pay to that person the amount of the proceeds of such sale after deducting the said expenses, and in case such proceeds are insufficient to reimburse the promoter those expenses the deficiency may be recovered from that person by the promoter.

(9) In this article—

(a)“goods” means articles and property of every description found on any vessel to which paragraph (1) applies; and

(b)an “owner”, in relation to any vessel sunk, stranded, abandoned, left or moored as mentioned in paragraph (1), means as the case may be, either—

(i)the owner of the vessel at the time of its sinking, stranding, abandonment, leaving or mooring; or

(ii)a person who has become the owner of a vessel since the sinking, stranding abandonment, leaving or mooring of the vessel referred to in paragraph (1).

Arbitration in respect of removal of vesselsE+W

20.—(1) Any person served with a notice by the promoter under article 19 (removal of vessels) may, within 21 days of service of the notice, serve a counter-notice on the promoter disputing the notice and stating that—

(a)the vessel is not sunk, stranded or abandoned in the relevant part of the waterway; or

(b)there has been some informality, defect or error in, or in connection with, the notice,

and any dispute under this article must be determined in accordance with article 51 (arbitration).

(2) If and so far as a dispute under this article is based on the ground of some informality, defect or error in, or in connection with, the notice, the arbitrator must dismiss the dispute if the arbitrator is satisfied that the informality, defect or error was not a material one.

(3) On the hearing of the dispute the arbitrator may confirm or set aside the notice.