The Network Rail (Redditch Branch Enhancement) Order 2013

Article 4

SCHEDULE 1AUTHORISED DEVELOPMENT AND REQUIREMENTS

PART 1AUTHORISED DEVELOPMENT

A nationally significant infrastructure project as defined in sections 14 and 25 of the 2008 Act comprising:

In the county of Worcestershire, district of Bromsgrove

• Work No. 1 – the construction of a new permanent railway commencing at ordnance survey national grid reference point SP4021 2726, being a point 420 metres north of the over bridge of the highway of Station Road, Alvechurch, over the Barnt Green to Redditch Railway and running southwards parallel to the existing Barnt Green to Redditch Railway for 3470 metres before terminating at ordnance survey national grid reference point SP4036 2692, being a point 10 metres north of the under bridge carrying the Barnt Green to Redditch Railway over the highway of Weights Lane, Redditch; including permanent way (rail tracks), railway switch and crossing track.

  Work No. 1 includes widening the existing embankment carrying the Barnt Green to Redditch Railway on its eastern and western sides supported in part by gabion basket retaining walls; extensions to culverts under the Barnt Green to Redditch Railway; the widening of existing cuttings, in part, with retaining walls; and the reconstruction of culverts.

  Associated development within the meaning of section 115(2) of the 2008 Act (development for which development consent may be granted) and within Order limits

  comprising –

• Work No. 2 – construction of a new station platform to the west of the existing station platform at Alvechurch Railway station and immediately to the south of the over bridge of the highway of Station Road, Alvechurch, over the Barnt Green to Redditch Railway, at ordnance survey national grid reference point SP4023 2721 including the construction of fences, lighting columns and shelters;

• Work No. 3 – construction of a new footbridge to connect from the existing platform at Alvechurch Railway station to Work No.2, at ordnance survey national grid reference point SP4023 2721 including stairs and lift accesses to the bridge from both the existing platform and from Work No 2;

• Work No. 4 - construction of a diverted route for public footpath 579(C) commencing at ordnance survey national grid reference point SP 02282 71974, being a point on the existing alignment of footpath 579(C) approximately 14 metres to the south west of the southern end of the existing Alvechurch railway station platform, and proceeding northwards and then eastwards towards the railway for a length of 88 metres to ordnance survey national grid reference point SP 02277 72055, being a point providing access to Work No. 3;

• Work No. 5 - construction of a diverted route for public footpath 579(C) commencing at ordnance survey national grid reference point SP 02288 72092, being a point on the existing Alvechurch Railway station platform where the diverted footpath connects with Work No. 3, and proceeding southwards for 104 metres to join the existing alignment of footpath 579(C) at ordnance survey national grid reference point SP 02305 71990;

• Work No.5a – construction of a temporary footpath (including temporary bridge over stream) commencing at ordnance survey national grid reference point SP 0230 7182, being a point to the south of the existing Alvechurch Railway station platform, and proceeding southwards for 15 metres to join the existing alignment of footpath 520(C) at ordnance survey national grid reference point SP 0230 7181;

• Work No. 6 – A signal equipment building to be used to house signalling and telecommunications equipment together with its hardstanding, access and compound to the west of the existing Barnt Green to Redditch Railway to the north of Alvechurch Railway station at ordnance survey national grid reference point SP 4022 2722;

• Work No. 7 - A signal equipment building to be used to house signalling and telecommunications equipment together with its hardstanding, access and compound to the west of the existing Barnt Green to Redditch Railway at Butler’s Wood, at ordnance survey national grid reference point SP4029 2701;

• Work No. 8 - a permanent access road commencing on the western side of the Barnt Green to Redditch Railway at a point to the north east of Weights Lane, Redditch, at ordnance survey national grid reference SP 0332 6963, and proceeding parallel to the railway on its western side for 127 metres north-west to ordinance survey national grid reference SP 0325 6973, then turning south-west for 135 metres to join the existing track north of Weights Lane at ordnance survey national grid reference point SP 0317 6963;

  and in connection with such works further associated development within the Order limits consisting of –

  (a)

  electrical equipment, power supply cubicles, cables, telecommunications cables and equipment and signalling works;

  (b)

  ramps, means of access (including temporary haul roads) and construction compounds;

  (c)

  embankment, aprons, abutments, shafts, foundations, retaining walls, drainage, wing walls, fences and culverts;

  (d)

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

  (e)

  works to interfere with a water course other than a navigable water course;

  (f)

  landscaping and other works (including the creation of ponds) to mitigate any adverse effects of the construction, maintenance or operation of the authorised development as are described in the visual impacts report and landscape plans/strategy and the ecological impact assessment report;

  (g)

  works for the benefit or protection of land affected by the authorised development;

  (h)

  works required for the strengthening, improvement, maintenance or reconstruction of any streets;

  (i)

  works for the temporary diversion of public footpaths shown in the footpath stopping up and diversion plan; and

  (j)

  such other works, including working sites and works compounds as may be necessary or expedient for the purposes of or in connection with the construction of the authorised development and which fall within the scope of the environmental reports.

Article 4

PART 2REQUIREMENTS

Interpretation

1.  In this Part of this Schedule—

“the CR-E” means Network Rail’s Contract Requirements – Environment, Issue 6, September 2011;

“culvert 11” means the culvert referred to as culvert 11 on the engineering plans including existing services and new services, drainage and surface water management;

“culvert 13” means the culvert referred to as culvert 13 on the engineering plans including existing services and new services, drainage and surface water management;

“the Historic Environment Planning Officer” means the Historic Environment Planning Officer for the County of Worcestershire; and

“operational railway land” means land required permanently for the construction of Work No. 1 and any existing railway corridor including associated works, structures, embankments, cuttings, bridges and culverts.

Time limits

2.  The authorised development must be commenced within 5 years of the date of this Order.

Development in accordance with approved details

3.—(1) The authorised development must be carried out in accordance with the design drawings.

(2) Work No.2 and Work No.3 must be carried out in accordance with the Alvechurch station general arrangement drawings, except for any minor amendments to the appearance, layout, scale or landscaping of those works approved by the relevant planning authority prior to commencement of those works.

Construction Environmental Management Plan

4.—(1) The authorised development must not be commenced until a written construction environmental management plan (CEMP) has been submitted to and approved by the relevant planning authority in consultation with the Health Protection Agency.

(2) The CEMP must be in accordance with the environmental reports.

(3) The CEMP must reflect the CR-E, and must include an implementation timetable.

(4) The CEMP must in particular include the following:

(a)an external communications plan;

(b)a pollution incident prevention and control plan;

(c)a site waste management plan;

(d)a traffic management plan including a construction traffic code of practice;

(e)a nuisance management plan regarding noise and vibration, dust, air pollution and lighting; and

(f)an ecological management plan.

(5) The construction traffic code of practice under (4)(d) must in particular address:

(a)construction traffic routes and operational hours;

(b)measures to minimise dust and mud;

(c)abnormal loads; and

(d)compliance of drivers with national driving standards and project-specific restrictions.

(6) The CEMP must in particular require:

(a)adherence to the relevant Pollution Prevention Guidelines PPG1, PPG5, PPG6 and PPG21;

(b)except on operational railway land (to which no restriction on working hours applies under this Order), adherence to—

(i)normal daytime working hours (7am to 6pm Monday to Friday and 8am to 2pm on Saturday), and

(ii)no working on Sundays, Bank or Public Holidays

except for such working outside those times which has been notified to the relevant planning authority and affected residents by an agreed notification procedure in compliance with Section 61 of the Control of Pollution Act 1974 and in full accordance with the nuisance management plan; and

(c)adherence to the scheme of temporary footpaths as approved by the highway authority under requirement 18(1)(d).

(7) The authorised development must be carried out in accordance with the approved CEMP and the CR-E.

Landscaping

5.—(1) The authorised development must not be commenced until a written landscaping scheme reflecting the visual impacts report and landscape plan/strategy has been submitted to and approved by the relevant planning authority.

(2) The landscaping scheme must reflect the mitigation measures described in the visual impacts report and landscape plan/strategy and must include details of—

(a)location, number, species, size and planting density of any proposed planting;

(b)cultivation, importing of materials and other operations to ensure plant establishment;

(c)implementation timetables for all landscaping; and

(d)proposals to take account of the presence of trees with trunks of a diameter of 100 mm or more and to minimise the loss of such trees.

Implementation and maintenance of landscaping

6.—(1) All landscaping work must be carried out in accordance with the scheme and implementation timetable approved under requirement 5.

(2) Any tree or shrub planted as part of an approved landscaping scheme that, within a period of five years after planting, is removed, dies or becomes, in the opinion of the relevant planning authority, seriously damaged or diseased, must be replaced in the first available planting season with a specimen of the same species and size as that originally planted, unless the relevant planning authority gives written consent to any variation.

Re-use of excavated materials

7.  The authorised development must not be commenced until Network Rail has agreed with the relevant planning authority a scheme for the recovery and re-use of excavated material in accordance with principles set out in section 4 of the waste management plan. The scheme must in particular have regard to the principles set out in paragraph 4.1 of the waste management plan.

Highway accesses

8.  No part of the works numbered in Part 1 of Schedule 1 may commence until—

(a)for that part details of the siting, design and layout of any new or altered, permanent or temporary, access, and any temporary haul roads, have, after consultation with the relevant planning authority and highway authority, been submitted to and approved by the relevant planning authority; and

(b)the approved highway alterations and improvements, including any altered or new accesses and any temporary haul roads, for that part have been implemented.

Car parking at Alvechurch station

9.  No part of the authorised development relating to Alvechurch station may be commenced until a schedule of works required at Alvechurch station car park to provide a facility for the parking of 50 cars (minimum) has been submitted to and approved by the relevant planning authority. The works must be carried out as approved.

Archaeology

10.—(1) The authorised development must not be commenced until a written scheme for the investigation of any areas of archaeological interest identified by the archaeological and historic impact assessment report has, after consultation with the Historic Environment Planning Officer, been submitted to and approved by the relevant planning authority.

(2) The scheme must be in accordance with the measures described in paragraph 4.2.1 of the archaeological and historic impact assessment report and must identify areas where field work or a watching brief is required and the measures to be taken to protect, record or preserve any significant archaeological remains that may be found.

(3) The scheme must include a programme for post-investigation assessment and make provision for the publication and dissemination and for the archive deposition of the analysis and records of the site investigation.

(4) Any archaeological works or watching brief carried out under the scheme must be by a suitably qualified person or body approved by the relevant planning authority and in accordance with the measures described in paragraph 4.2.1 of the archaeological and historic impact assessment report.

(5) Any archaeological works or watching brief must be carried out in accordance with the approved scheme.

(6) The site investigation and post-investigation assessment must be completed in accordance with the programme set out in the approved written scheme of investigation and the provision made for analysis, publication and dissemination of results and archive deposition has been secured.

Ecological Management

11.—(1) No part of the authorised development may be commenced until a written ecological management plan (which is to form part of the CEMP), reflecting the survey results and ecological mitigation measures specified in the ecological impact assessment report and including the appointment of an ecological clerk of works, has been submitted to and approved by the relevant planning authority in consultation with the Environment Agency.

(2) The ecological management plan must include an implementation timetable and must be carried out as approved.

(3) Areas of work exclusion zones must be agreed with the relevant planning authority prior to the commencement of the authorised development. No part of the authorised development in the vicinity of any tree, hedgerow, grassland, watercourse, ditch or woodland habitat identified as requiring a work exclusion zone may be carried out until measures to protect the relevant work exclusion zone have been implemented to the reasonable satisfaction of the relevant planning authority. The work exclusion zone must be maintained for the duration of the construction of the authorised development in the vicinity of the relevant work exclusion zone.

(4) The ecological management plan must in particular include:

(a)a description of alterations required to culvert 11 and culvert 13 to facilitate the passage of fish and other aquatic fauna through these culverts; and

(b)a description of the required realignment of fencing around culverts to make them more accessible to otters and other mammals

and these enhancements must be implemented in accordance with the details specified in the ecological management plan.

Mitigation of effects on protected species

12.—(1) No part of authorised development may be commenced within the 500m buffer zone for ponds known to support great crested newts, and shown on Figure 5.9.6 (Appendix 2A) of the ecological impact assessment report, until the relevant planning authority, in consultation with Natural England, has certified that the mitigation works described in paragraphs 5.5.8-5.5.18 of the ecological impact assessment report have been carried out to their reasonable satisfaction.

(2) The ecological management plan required under requirement 11 must include provision for a further site investigation in respect of white clawed crayfish prior to the commencement of any works in the vicinity of Scarfield Stream (culvert 11) and Shortwood Dingle Stream (culvert 13). If white clawed crayfish are found, then a scheme for mitigating impacts on them must be included in the ecological management plan.

Trees

13.—(1) The authorised development may not be commenced until Network Rail has provided to the relevant planning authority and the relevant planning authority has approved a plan indicating trees within the Order limits that have to be removed for the construction of the authorised development. No trees except for those identified on the approved plan may be removed for the construction of the authorised development without the consent of the relevant planning authority.

(2) The plan submitted must also identify areas of tree protective fencing to be erected prior to commencement of the authorised development. The fencing shown on the approved plan is to be maintained during the construction period to the reasonable satisfaction of the relevant planning authority. At the end of the construction period, the fencing must be removed in total to the satisfaction of the relevant planning authority.

Trees – removal of crowns and other alterations

14.  No trees may be lopped, chopped or altered for the construction of the authorised development until the relevant planning authority has approved a scheme for the lopping, chopping or alteration of that tree. The works to the tree must be carried out to the reasonable satisfaction of the relevant planning authority.

Temporary fencing

15.  Prior to the commencement of the authorised development Network Rail must apply to the relevant planning authority for its approval of a plan indicating the extent of temporary fencing that must be erected for the authorised development. No part of the authorised development within an area where temporary fencing is so indicated may be commenced without that temporary fencing having first been erected. The temporary fencing must be retained and maintained to the reasonable satisfaction of the relevant planning authority until the cessation of works in that area. After cessation of works in that area the relevant fencing must be removed to the satisfaction of the relevant planning authority.

Drainage

16.—(1) The authorised development must not be commenced until a detailed drainage plan showing all new surface water drainage has been approved by the relevant planning authority in consultation with the lead local flood authority. The details must be in accordance with the details of paragraph 5.4.6 of the flood risk assessment and demonstrate that:

(a)all discharges to watercourses from railway drainage systems should be attenuated to a rate not exceeding the existing rate of runoff, that is 5 litres per second per hectare; and

(b)all discharges made from railway drainage systems should be discharged downstream of existing watercourse culverts wherever possible to reduce any impact on the capacity of each of the respective culverts.

(2) The authorised development must be constructed in accordance with the approved details.

Contaminated land and groundwater

17.—(1) The additional investigation of Order land potentially affected by the Alvechurch dredging landfill that is recommended in the land quality report at paragraph 7.2 must be carried out before commencement of development. The results of the additional investigation and the implementation measures and monitoring requirements identified in the land quality report must be incorporated in the CEMP, and in particular the site waste management plan.

(2) If during construction of the authorised development contaminated material is encountered in excavations of Order land that does not fall within paragraph (1), then work in the vicinity of that contamination must be suspended and additional soil samples must be taken for assessment. Any additional remediation required as a result of the additional contamination must be approved by the relevant planning authority in consultation with the Environment Agency and carried out to the reasonable satisfaction of the relevant planning authority.

Footpath diversions – implementation plan

18.—(1) Prior to the commencement of the authorised development Network Rail must provide to the highway authority for their approval the implementation plan which must include:

(a)the specification for the new footpath forming part of footpath 579(C) and comprising part of the authorised development;

(b)the specification for the temporary footpath in substitution for part of footpaths 520 (C) and 580 (C);

(c)a programme for the opening of the diverted section of footpath 579(C) and re-opening of footpaths 520(C), 580 (C) and 523(C) upon the cessation of that part of the authorised development requiring the suspension or diversion of those footpaths, and

(d)a scheme of temporary paths to allow use of footpath 579(C) during daylight hours following the closure of the existing right of way and prior to the opening of the diverted footpath save when it is previously agreed by the highway authority that such use is not reasonably practicable due to the works to implement the authorised development meaning that such use would compromise the safety of the public using the temporary path in substitution for the footpath.

(2) The authorised development must be carried out in accordance with the approved implementation plan.

Requirement for written approval

19.  Where under any of the above requirements the approval or agreement of the relevant planning authority or another person is required, that approval or agreement must be given in writing.

Article 8

SCHEDULE 2STREETS SUBJECT TO STREET WORKS

Article 9

SCHEDULE 3FOOTPATHS TO BE STOPPED UP

PART 1FOOTPATH FOR WHICH A SUBSTITUTE IS TO BE PROVIDED

PART 2FOOTPATH FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED

Article 9

SCHEDULE 4FOOTPATHS TO BE TEMPORARILY SUSPENDED

PART 1FOOTPATHS FOR WHICH A SUBSTITUTE IS TO BE PROVIDED DURING SUSPENSION

PART 2FOOTPATHS FOR WHICH NO SUBSTITUTE IS TO BE PROVIDED DURING SUSPENSION

Article 11

SCHEDULE 5ACCESS TO WORKS

Article 17

SCHEDULE 6LAND IN WHICH ONLY NEW RIGHTS, ETC., MAY BE ACQUIRED

Article 17

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 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 limitation on the scope of paragraph 1, the Land Compensation Act 1973 has 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 are substituted the words “a right over land is purchased from or imposed on”; and

(b)for the words “acquired or taken from him” there are 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 are substituted the words “a right over land consisting”;

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

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

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

Application of the 1965 Act

3.—(1) The 1965 Act has 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 limitation on the scope of sub-paragraph (1), Part 1 of the 1965 Act will 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 in case of severance) there is substituted the following section—

“7.  In assessing the compensation to be paid by the acquiring authority under this Act, regard must 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 the owner, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”.

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

“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 Upper Tribunal (“the tribunal”); and

(b)before the tribunal has determined that question the tribunal is satisfied that the person has an interest in the whole of the relevant land and is able and willing to sell that interest 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 Network Rail Redditch Branch Enhancement Order 2013(1) (“the Order”), in relation to that person, ceases 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 is 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 must 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 6 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),

are modified so 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.—(1) Section 11 of the 1965 Act (powers of entry) is so modified as to secure that, as from the date on which the acquiring authority has served notice to treat in respect of any right it has power, exercisable in equivalent circumstances and subject to equivalent conditions, to enter for the purpose of exercising that right (which is 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 is modified correspondingly.

8.  Section 20 of the 1965 Act (protection for interests of tenants at will, etc.) applies 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 (interests omitted from purchase) is modified so 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.

Article 23

SCHEDULE 8LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN

Article 31

SCHEDULE 9TRAFFIC REGULATION

Article 38

SCHEDULE 10PROTECTIVE PROVISIONS

PART 1PROTECTION FOR ELECTRICITY, GAS, WATER, PETROLEUM AND SEWERAGE UNDERTAKERS

1.  For the protection of the undertakers referred to in this Part of this Schedule the following provisions, unless otherwise agreed in writing between Network Rail and the undertaker concerned, have effect.

2.  In this Part of this Schedule—

“alternative apparatus” means alternative apparatus adequate to enable the undertaker in question to fulfil its statutory functions in a manner not less efficient than previously;

“apparatus” means—

and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;

“functions” includes powers and duties;

“in” in a context referring to apparatus or alternative apparatus in land includes a reference to apparatus or alternative apparatus under, over or upon land; and

“undertaker” means—

for the area of the authorised development, and in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.

3.  This Part of this Schedule does not apply to apparatus in respect of which the relations between Network Rail and the undertaker are regulated by the provisions of Part 3 of the 1991 Act.

4.  Regardless of any provision in this Order or anything shown on the land plans, Network Rail must not acquire any apparatus otherwise than by agreement.

5.—(1) If, in the exercise of the powers conferred by this Order, Network Rail acquires any interest in any land in which any apparatus is placed, that apparatus must not be removed under this Part of this Schedule and any right of an undertaker to maintain that apparatus in that land must not be extinguished until alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertaker in question.

(2) If, for the purpose of executing any works in, on or under any land purchased, held, appropriated or used under this Order, Network Rail requires the removal of any apparatus placed in that land, it must give to the undertaker in question written notice of that requirement, together with a plan and section of the work proposed, and of the proposed position of the alternative apparatus to be provided or constructed and in that case (or if in consequence of the exercise of any of the powers conferred by this Order an undertaker reasonably needs to remove any of its apparatus) Network Rail must, subject to sub-paragraph (3), afford to the undertaker the necessary facilities and rights for the construction of alternative apparatus in other land of Network Rail and subsequently for the maintenance of that apparatus.

(3) If alternative apparatus or any part of such apparatus is to be constructed elsewhere than in other land of Network Rail, or Network Rail is unable to afford such facilities and rights as are mentioned in sub-paragraph (2), in the land in which the alternative apparatus or part of such apparatus is to be constructed, the undertaker in question must, on receipt of a written notice to that effect from Network Rail, as soon as reasonably possible use its best endeavours to obtain the necessary facilities and rights in the land in which the alternative apparatus is to be constructed.

(4) Any alternative apparatus to be constructed in land of Network Rail under this Part of this Schedule is to be constructed in such manner and in such line or situation as may be agreed between the undertaker in question and Network Rail or in default of agreement settled by arbitration in accordance with article 35 (arbitration).

(5) The undertaker in question must, after the alternative apparatus to be provided or constructed has been agreed or settled by arbitration in accordance with article 35, and after the grant to the undertaker of any such facilities and rights as are referred to in sub-paragraph (2) or (3), proceed without unnecessary delay to construct and bring into operation the alternative apparatus and subsequently to remove any apparatus required by Network Rail to be removed under the provisions of this Part of this Schedule.

(6) Regardless of anything in sub-paragraph (5), if Network Rail gives notice in writing to the undertaker in question that it desires itself to execute any work, or part of any work in connection with the construction or removal of apparatus in any land of Network Rail, that work, instead of being executed by the undertaker, must be executed by Network Rail without unnecessary delay under the superintendence, if given, and to the reasonable satisfaction of the undertaker.

(7) Nothing in sub-paragraph (6) authorises Network Rail to execute the placing, installation, bedding, packing, removal, connection or disconnection of any apparatus, or execute any filling around the apparatus (where the apparatus is laid in a trench) within 300 millimetres of the apparatus.

6.—(1) Where, in accordance with the provisions of this Part of this Schedule, Network Rail affords to an undertaker facilities and rights for the construction and maintenance in land of Network Rail of alternative apparatus in substitution for apparatus to be removed, those facilities and rights are to be granted upon such terms and conditions as may be agreed between Network Rail and the undertaker in question or in default of agreement settled by arbitration in accordance with article 35 (arbitration).

(2) In settling those terms and conditions in respect of alternative apparatus to be constructed in or along any railway of Network Rail, the arbitrator must—

(a)give effect to all reasonable requirements of Network Rail for ensuring the safety and efficient operation of the railway and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of Network Rail or the traffic on the railway; and

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

(3) If the facilities and rights to be afforded by Network Rail in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are in the opinion of the arbitrator less favourable on the whole to the undertaker in question than the facilities and rights enjoyed by it in respect of the apparatus to be removed and the terms and conditions to which those facilities and rights are subject, the arbitrator must make such provision for the payment of compensation by Network Rail to that undertaker as appears to the arbitrator to be reasonable having regard to all the circumstances of the particular case.

7.—(1) Not less than 28 days before starting the execution of any works of the type referred to in paragraph 5(2) that are near to, or will or may affect, any apparatus the removal of which has not been required by Network Rail under paragraph 5(2), Network Rail must submit to the undertaker in question a plan, section and description of the works to be executed.

(2) Those works are to be executed only in accordance with the plan, section and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made in accordance with sub-paragraph (3) by the undertaker for the alteration or otherwise for the protection of the apparatus, or for securing access to it, and the undertaker is entitled to watch and inspect the execution of those works.

(3) Any requirements made by an undertaker under sub-paragraph (2) must be made within a period of 21 days beginning with the date on which a plan, section and description under sub-paragraph (1) are submitted to it.

(4) If an undertaker in accordance with sub-paragraph (3) and in consequence of the works proposed by Network Rail, reasonably requires the removal of any apparatus and gives written notice to Network Rail of that requirement, paragraphs 1 to 6 apply as if the removal of the apparatus had been required by Network Rail under paragraph 5(2).

(5) Nothing in this paragraph precludes Network Rail from submitting at any time or from time to time, but in no case less than 28 days before commencing the execution of any works, a new plan, section and description instead of the plan, section and description previously submitted, and having done so the provisions of this paragraph apply to and in respect of the new plan, section and description.

(6) Network Rail is not required to comply with sub-paragraph (1) in a case of emergency but in that case it must give to the undertaker in question notice as soon as is reasonably practicable and a plan, section and description of those works as soon as reasonably practicable subsequently and must comply with sub-paragraph (2) in so far as is reasonably practicable in the circumstances.

8.—(1) Subject to the following provisions of this paragraph, Network Rail must repay to an undertaker the reasonable expenses incurred by that undertaker in, or in connection with, the inspection, removal, alteration or protection of any apparatus or the construction of any new apparatus (including costs or compensation payable in connection with the acquisition of land for that purpose) which may be required in consequence of the execution of any such works as are referred to in paragraph 5(2).

(2) The value of any apparatus removed under the provisions of this Part of this Schedule is to be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.

(3) If in accordance with the provisions of this Part of this Schedule—

(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 Network Rail or, in default of agreement, is not determined by arbitration in accordance with article 35 (arbitration) to be necessary, then, if such placing involves cost in the construction of works under this Part of this Schedule 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 undertaker in question by virtue of sub-paragraph (1) is to be reduced by the amount of that excess.

(4) For the purposes of sub-paragraph (3)—

(a)an extension of apparatus to a length greater than the length of existing apparatus must not be treated as a placing of apparatus of greater dimensions than those of the existing apparatus; 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 must be treated as if it also had been agreed or had been so determined.

(5) An amount which apart from this sub-paragraph would be payable to an undertaker in respect of works by virtue of sub-paragraph (1) must, 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 undertaker 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.

9.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in paragraph 5(2), any damage is 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 property of an undertaker, or there is any interruption in any service provided, or in the supply of any goods, by any undertaker, Network Rail must—

(a)bear and pay the cost reasonably incurred by that undertaker in making good such damage or restoring the supply; and

(b)make reasonable compensation to that undertaker for any other expenses, loss, damages, penalty or costs incurred by the undertaker,

by reason or in consequence of any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on Network Rail with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an undertaker, its officers, servants, contractors or agents.

(3) An undertaker must give Network Rail reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of Network Rail which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

10.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between Network Rail and an undertaker in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which this Order is made.

PART 2PROTECTION FOR OPERATORS OF ELECTRONIC COMMUNICATIONS CODE NETWORKS

11.—(1) For the protection of any operator, the following provisions, unless otherwise agreed in writing between Network Rail and the operator, have effect.

(2) In this Part of this Schedule—

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

“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 2 of the 2003 Act(5);

“electronic communications code network” means—

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106 of the 2003 Act; and

“operator” means the operator of an electronic communications code network.

12.  The exercise of the powers of article 25 (statutory undertakers) are subject to paragraph 23 of Schedule 2 to the Telecommunications Act 1984(6).

13.—(1) Subject to sub-paragraphs (2) to (4), if as the result of the authorised development or their construction, or of any subsidence resulting from any of those works—

(a)any damage is caused to any electronic communications apparatus belonging to an operator (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 an operator); or

(b)there is any interruption in the supply of the service provided by an operator,

Network Rail must bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and must—

(i)make reasonable compensation to an operator for loss sustained by it; and

(ii)indemnify an operator against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, an operator by reason, or in consequence of, any such damage or interruption.

(2) Nothing in sub-paragraph (1) imposes any liability on Network Rail with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of an operator, its officers, servants, contractors or agents.

(3) The operator must give Network Rail reasonable notice of any such claim or demand and no settlement or compromise of the claim or demand may be made without the consent of Network Rail which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.

(4) Any difference arising between Network Rail and the operator under this paragraph is to be referred to and settled by arbitration under article 35 (arbitration).

14.  This Part of this Schedule does not apply to—

(a)any apparatus in respect of which the relations between Network Rail and an operator are regulated by the provisions of Part 3 of the 1991 Act; or

(b)any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised development.

15.  Nothing in this Part of this Schedule affects the provisions of any enactment or agreement regulating the relations between Network Rail and an operator in respect of any apparatus laid or erected in land belonging to Network Rail on the date on which this Order is made.

PART 3PROTECTION FOR THE CANAL & RIVER TRUST

Interpretation

16.—(1) For the protection of CRT the following provisions of this part of this Schedule, unless otherwise agreed in writing between Network Rail and CRT, have effect.

(2) In this part of this Schedule—

“car park” means the land forming part of plot 2 of the lands scheduled in the book of reference that consists of a car park;

“CRT” means the Canal & River Trust;

“CRT’s network” means CRT’s network of waterways;

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

“detriment” means any damage to the waterway or any other property of CRT and, without limitation on the scope of that meaning, includes—

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

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

“practical completion” means practical completion of all of the specified work notwithstanding that items which would ordinarily be considered snagging items remain outstanding, and the expression “practically complete” and “practically completed” are construed accordingly

“protective work” means a work constructed under paragraph 21(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 in any way affect the waterway;

“towing path” means the towing path forming part of the waterway;

“the waterway” means the Worcester and Birmingham Canal, and includes any works, lands or premises belonging to CRT, or under its management or control, and held or used by CRT in connection with that canal.

Powers requiring CRT’s consent

17.—(1) Network Rail must not in the exercise of the powers conferred by this Order obstruct or interfere with pedestrian or vehicular access to the waterway unless such obstruction or interference with such access is with the consent of CRT but the temporary obstruction of the car park is deemed to be with the consent of CRT.

(2) Network Rail must not exercise any power conferred by this Order in such a way as to interfere with the supply of water to or the drainage of water from the waterway unless such exercise is with the consent of CRT.

(3) Network Rail must not exercise the powers conferred article 14 (authority to survey and investigate land) or section 11(3) of the 1965 Act (power of entry for surveying land), in relation to the waterway unless such exercise is with the consent of CRT.

(4) Network Rail must not exercise the powers conferred by sections 271 or 272 of the 1990 Act, as applied by Schedule 3 (footpaths to be stopped up), so as to divert any right of access to the waterway, but such right of access may be diverted with the consent of CRT.

(5) The consent of CRT under sub-paragraphs (1) to (4) must not be unreasonably withheld or delayed but may be given subject to reasonable terms and conditions which in the case of article 13 (discharge of water) may include conditions—

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

(b)authorising CRT on giving reasonable notice (except in an emergency, when CRT may require immediate suspension) to Network Rail to require Network Rail to suspend the discharge of water or reduce the flow of water where this is necessary by reason of any operational or environmental requirement of CRT.

Vehicles, plant and machinery

18.  Network Rail must not use any land or property of CRT forming part of the waterway (other than within Plots 2 or 3 of the lands referred to in the book of reference) for the passage or siting of vehicles, plant or machinery employed in the construction of the specified works other than—

(a)with the consent in writing of the engineer whose consent must 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 CRT, its officers and agents and all other persons lawfully on such land or property, but nothing in this paragraph applies in relation to anything done in accordance with any approval given by CRT under paragraph 21.

Fencing

19.  Where so required by the engineer Network Rail must to the reasonable satisfaction of the engineer fence off a specified work or a 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 the waterway, whether on a temporary or permanent basis or both.

Survey of waterway

20.—(1) Before the commencement of the initial construction of any part of the specified works and again following practical completion of the specified works Network Rail must bear the reasonable cost of the carrying out by a qualified engineer (“the surveyor”), to be approved by CRT and Network Rail, of a survey including a dip-survey to measure the depth of the waterway (“the survey”) of so much of the waterway and of any land and existing works of Network Rail which may provide support for the waterway as will or may be affected by the specified works.

(2) For the purposes of the survey Network Rail must—

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

(b)supply the surveyor as soon as reasonable practicable with all such information as he may reasonably require with regard to such existing works of Network Rail and to the specified works or the method of their construction.

(3) The reasonable costs of the survey include the costs of any dewatering or reduction of the water level of any part of the waterway (where reasonably required) which may be effected to facilitate the carrying out of the survey and the provisions of this part of this Schedule 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 survey must be provided to both CRT and Network Rail at no cost to CRT.

Approval of plans, protective works etc.

21.—(1) Network Rail must before commencing construction of any specified work comprising part of Work No. 1 of the authorised development including any temporary works supply to CRT proper and sufficient plans of that work and such further particulars available to it as CRT may within 14 days of the submission of the plans reasonably require for the approval of the engineer and must not commence such construction of a 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) must not be unreasonably withheld or delayed, and if within 30 days after such plans (including any other particulars reasonably required under sub-paragraph (1)) have been supplied to CRT the engineer has not intimated disapproval of those plans and the grounds of disapproval the engineer is deemed to have approved the plans as submitted.

(3) When signifying approval of the plans the engineer may specify on land held or controlled by CRT or Network Rail and subject to such works being authorised by the order or being development permitted by an Act of Parliament or general development order made under the 1990 Act —

(a)any protective work (whether temporary or permanent) which in the reasonable opinion of the engineer should be carried out before the commencement of a specified work to prevent detriment; and

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

and such protective works are constructed by Network Rail or by CRT at Network Rail’s request with all reasonable dispatch and Network Rail must not commence the construction of a specified work until the engineer has notified Network Rail that the protective works have been completed to the engineer’s reasonable satisfaction not to be unreasonably withheld or delayed.

(4) In the event that Network Rail fails to complete the construction of, or part of, the specified works CRT may, if it is reasonably required in order to avoid detriment, construct any of the specified works, or part of such works, (together with any adjoining works) in order to complete the construction of, or part of, the specified works or make such works and Network Rail must reimburse CRT all costs, fees, charges and expenses it has reasonably incurred in carrying out such works.

Design of works

22.  Without affecting its obligations under the provisions of this Part of this Schedule Network Rail must consult, collaborate and respond constructively to any approach, suggestion, proposal or initiative made by CRT on—

(a)the design and appearance of the specified works comprising Work No. 1, including the materials to be used for their construction; and

(b)the environmental effects of that work;

and must have regard to such views as may be expressed by CRT 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 CRT by section 22 (general environmental and recreational duties) of the British Waterways Act 1995(7) and to the interest of CRT in preserving and enhancing the environment of its waterways.

Notice of works

23.  Network Rail must give to the engineer 30 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, CRT may where appropriate arrange for the publication of notices bringing those works to the attention of users of CRT’s network.

Construction of specified works

24.—(1) Any specified or protective works must, when commenced, be constructed—

(a)without unnecessary delay in accordance with the plans approved or deemed to have been approved or settled under the provisions in paragraph 21 and with any requirements made under paragraph 21(3) and paragraph 22;

(b)under the supervision (if given) and 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 CRT, its officers and agents and all other persons lawfully using the waterways, except to the extent that temporary obstruction has otherwise been agreed by CRT.

(2) Nothing in this Order authorises Network Rail to make or maintain any permanent works in or over the waterway so as to impede or prevent (whether by reducing the width of the waterway or otherwise) the passage of any vessel which is of a kind (as to its dimensions) for which CRT is required by section 105(1)(b) and (2) (maintenance of waterways) of the Transport Act 1968(8) to maintain the waterway.

(3) Following the completion of the construction of the specified works Network Rail must restore the waterway to a condition no less satisfactory than its condition immediately prior to the commencement of those works.

Prevention of pollution

25.  Network Rail must not in the course of constructing a specified work or a protective work or otherwise in connection therewith do or permit anything which may result in the pollution of the waterway or the deposit of materials therein and must take such steps as the engineer may reasonably require to avoid or make good any breach of its obligations under this paragraph.

Access to work: provision of information

26.—(1) Network Rail on being given reasonable notice must—

(a)at all reasonable times and subject to any railway operational or safety requirements allow reasonable facilities to the engineer for access to a specified work during its construction; and

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

(2) CRT on being given reasonable notice must—

(a)at all times afford reasonable facilities to Network Rail and its agents for access to any works carried out by CRT under this part of this Schedule during their construction; and

(b)supply Network Rail with such information as it may reasonably require with regard to such works or the method of constructing them and Network Rail must reimburse CRT’s reasonable costs in relation to the supply of such information.

Maintenance of works

27.  If at any time after the completion of a specified work or a protective work, not being a work vested in CRT, CRT gives notice to Network Rail informing it that the state of maintenance of the work appears to be such that the work is causing or likely to cause detriment, Network Rail must, 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.

Repayment of CRT’s fees, etc.

28.  Network Rail must repay to CRT all fees, costs, charges and expenses reasonably incurred by CRT—

(a)in constructing any protective works under the provisions of paragraph 21(3)(a);

(b)in respect of the approval by the engineer of plans submitted by Network Rail and the supervision by the engineer of the construction or repair of a specified work and any protective works;

(c)in respect of the employment during the construction of the specified works or any protective works of any inspectors, watchkeepers and other persons whom it is reasonably necessary to appoint for inspecting any waterway and for preventing, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works or any protective works; and

(d)in bringing the specified works or any protective works to the notice of users of CRT’s network.

Making good of detriment; compensation and indemnity, etc.

29.—(1) If any detriment is caused by the construction or failure of the specified works or the protective works if carried out by Network Rail, Network Rail (if so required by CRT) must make good such detriment and must pay to CRT all reasonable expenses to which CRT may be put, and compensation for any loss which CRT may sustain, in making good or otherwise by reason of the detriment.

(2) Network Rail is responsible for and must make good to CRT all costs, charges, damages, expenses and losses not otherwise provided for in this part of this Schedule which may be occasioned to or reasonably incurred by CRT—

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

(b)by reason of any act or omission of Network Rail or of any person in its employ or of its contractors or others whilst engaged upon the construction of a specified work or a protective work; and subject to sub-paragraph (4) Network Rail must effectively indemnify and hold harmless CRT from and against all claims and demands arising out of or in connection with any of the matters referred to in paragraphs (a) and (b).

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

(4) CRT must give Network Rail reasonable notice of any such claim or demand as referred to in sub-paragraph (2) and no settlement or compromise of such a claim or demand is to be made without the prior consent of Network Rail.

Arbitration

30.  Any difference arising between Network Rail and CRT under this part of this Schedule (other than a difference as to the meaning or construction of this part of this Schedule) must be referred to and settled by arbitration in accordance with article 35 (arbitration).