SCHEDULE 16 Temporary possession and use of land: table of land
Section 13
(1) | (2) | (3) | (4) | (5)
Area | Number of land shown on deposited plans | Purpose for which temporary possession may be taken | Specified authorised works | Specified works which may be carried out
County of Staffordshire District of Lichfield Parish of Kings Bromley | 3, 6, 8, 10a, 11a, 18a, 19, 32a, 34, 36a, 36b, 46, 57, 60, 69, 74, 78, 82, 83, 85, 89, 103, 107, 114, 123, 159, 164, 165, 168, 170, 173, 174, 180, 181, 183, 188, 199, 201, 208, 212, 216, 218, AP1-1 | Diversion or installation of, or works to, utilities apparatus | Diversion or installation of, or works to, utilities apparatus
219, AP2-89a, AP2-89b | Provision of access for construction and diversion of, or works to, utilities apparatus | Diversion or installation of, or works to, utilities apparatus
221, 224, 226 to 228, 230 to 237, 239, 240, 247, 268 to 270, 272, AP2-104 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
Parish of Longdon | 1, 2 | Provision of access for construction and diversion of, or works to, utilities apparatus | Diversion or installation of, or works to, utilities apparatus
Parish of Armitage with Handsacre | 1 | Provision of environmental mitigation | Environmental mitigation works
Parish of Mavesyn Ridware | 12, 77, 78 | Creation of new public right of way | Creation of new public right of way | Works required in connection with the provision of a new public right of way
AP2-24, AP2-55, AP2-58, AP2-59 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
Parish of Colton | 101, 102, 142, AP2-30, AP2-37, AP2-37b, AP2-61 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
189a, 194 | Provision of access for construction and diversion of, or works to, utilities apparatus | Diversion or installation of, or works to, utilities apparatus
Borough of Stafford, Parish of Colwich | 66, 84, 88, 89 | Creation of new public right of way | Creation of new public right of way | Works required in connection with the provision of a new public right of way
87 | Creation of new public right of way and provision of access for utility works | Creation of new public right of way and diversion or installation of, or works to, utilities apparatus | Works required in connection with the provision of a new public right of way
122, 139, 166, 181, AP2-7, AP2-64 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
AP2-69, AP2-70 | Provision of access for construction works | Diversion or installation of, or works to, utilities apparatus
Borough of East Staffordshire Parish of Abbots Bromley | AP2-32, AP2-100, AP2-101, AP2-104, AP2-106 to AP2-111, AP2-113, AP2-115, AP2-116, AP2-119 | Provision of access for construction works | Diversion or installation of, or works to, utilities apparatus
Parish of Hoar Cross | AP2-10, AP2-12, AP2-14, AP2-16, AP2-17, AP2-19, AP2-21, AP2-24, AP2-27, AP2-30, AP2-33, AP2-35 | Provision of access for construction works | Diversion or installation of, or works to, utilities apparatus
Parish of Newborough | AP2-7, AP2-9, AP2-10, AP2-12 | Provision of access for construction works | Diversion or installation of, or works to, utilities apparatus
Borough of Stafford, Parish of Ingestre | AP2-1 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
Parish of Tixall | 3a, 9, AP2-14 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
AP2-2 | Provision of access for construction and diversion of, or works to, utilities apparatus | Diversion or installation of, or works to, utilities apparatus
Parish of Hopton and Coton | 46, 59, 67, 69, 71, 86, 87, 90, 110, 113, 120, 125, 126, 129, 131 to 133, 135, 137, 139, 143, 146, 182, 185a, AP2-23, AP2-29, AP2-61, AP2-67, AP2-69, AP2-75 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
179 | Provision of access for utility works and creation of new public right of way | Diversion or installation of, or works to, utilities apparatus and creation of new public right of way | Works required in connection with the provision of a new public right of way
Parish of Salt and Enson | 1 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
Parish of Marston | 10, 17, 21, 33, 72, 79, AP2-1 to AP2-7, AP2-15, AP2-33, AP2-35 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
Parish of Whitgreave | AP2-3, AP2-4 | Creation of a new public right of way | Creation of a new public right of way | Works required in connection with the provision of a new public right of way
Parish of Stone Rural | 36, 38, 58a, AP2-9, AP2-13, AP2-15, AP2-16, AP2-43 | Creation of new public right of way | Creation of new public right of way | Works required in connection with the provision of a new public right of way
52, 67, 136, 138, AP2-20, AP2-21, AP2-34 to AP2-37, AP2-40, AP2-46, AP2-47 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
AP1-17, AP1-22 | Diversion or installation of, or works to, utilities apparatus | Diversion or installation of, or works to, utilities apparatus
Parish of Swynnerton | 66, 70, 74, 138, 147, 160, 164, 171, 173, 176, 178, 302 to 304, 317, 318, AP2-5 to AP2-7, AP2-12 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
91c, AP1-3, AP1-5, AP1-7, AP1-8, AP1-10, AP1-12 to AP1-15 | Diversion or installation of, or works to, utilities apparatus | Diversion or installation of, or works to, utilities apparatus
AP2-57 | Creation of a new public right of way | Creation of a new public right of way | Works required in connection with the provision of a new public right of way
Borough of Newcastle-under-Lyme Parish of Whitmore | 51, 55 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
102a, AP2-12 | Creation of new public right of way | Creation of new public right of way | Works required in connection with the provision of a new public right of way
Town of Newcastle-under-Lyme | AP2-15, AP2-16 | Worksite and access for construction | Works Nos. 78F ,78G and 78H
Parish of Madeley | 7, 207 | Provision of environmental mitigation | Environmental mitigation works
38, 181, 195, 196, 201 | Creation of new public right of way | Creation of new public right of way | Works required in connection with the provision of a new public right of way
93, AP2-25, AP2-27, AP2-29, AP2-34 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
County of Cheshire Borough of Cheshire East Parish of Blakenhall | 22, 26a, 33, 37, 42, 78, 107, 137, 139 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
Parish of Chorlton | 2, 10, 11 | Provision of access for utility works | Diversion or installation of, or works to, utilities apparatus
14, 53, 58, 60a | Creation of new public right of way | Creation of new public right of way | Works required in connection with the provision of a new public right of way
Parish of Basford | 21 | Creation of new public right of way | Creation of new public right of way | Works required in connection with the provision of a new public right of way
SCHEDULE 17 Conditions of deemed planning permission
Section 17
PART 1 Conditions
Introductory
1 The requirements in paragraphs 2 to 12 are conditions of deemed planning permission under section 17(1).
Condition relating to building works
2 (1) To the extent that development consists of building works, it must be carried out in accordance with plans and specifications for the time being approved by the relevant planning authority.
(2) In this paragraph “relevant planning authority” means the unitary authority or, in a non-unitary area, the district council in whose area the development is carried out.
(3) The relevant planning authority may, on approving a plan or specification for the purposes of this paragraph, specify any respect in which it requires additional details of the building works to be submitted for approval.
(4) Where the relevant planning authority exercises the power conferred under sub-paragraph (3), the plans and specifications referred to in sub-paragraph (1) must, as regards the specified respect, include a plan or specification showing the additional details.
(5) If the relevant planning authority is a qualifying authority, it may only refuse to approve plans or specifications for the purposes of this paragraph on the ground that—
(a) the design or external appearance of the building works ought to be modified—
(i) to preserve the local environment or local amenity,
(ii) to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or
(iii) to preserve a site of archaeological or historic interest or nature conservation value,
and is reasonably capable of being so modified, or
(b) the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.
(6) If the relevant planning authority is not a qualifying authority, it may only refuse to approve plans or specifications for the purposes of this paragraph on the ground that—
(a) the design or external appearance of the building works ought to be modified to preserve the local environment or local amenity and is reasonably capable of being so modified, or
(b) the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.
(7) The relevant planning authority may only impose conditions on approval for the purposes of this paragraph on a ground referred to in sub-paragraph (5) or (6) (as the case may be).
(8) In this paragraph, “building works” means the erection, construction, alteration or extension of any building, other than a temporary building.
(9) For these purposes, a building ancillary to a scheduled work is only a temporary building if it is intended to remain in place for no longer than two years after the date on which the scheduled work is brought into general use.
(10) The requirements in this paragraph do not apply to building works to the extent that they are ancillary to development consisting of—
(a) the disposal of waste or spoil, or
(b) the excavation of bulk materials from borrow pits.
(See paragraph 7 as to such development.)
Condition relating to other construction works
3 (1) If the relevant planning authority is a qualifying authority, development to which this paragraph applies must be carried out in accordance with plans and specifications for the time being approved by that authority.
(2) This paragraph applies to development to the extent that it consists of the construction of any of the following—
(a) a road vehicle park;
(b) earthworks;
(c) sight, noise or dust screens;
(d) transformers, telecommunications masts or pedestrian accesses to railway lines;
(e) fences or walls;
(f) lighting equipment.
(3) In this paragraph “relevant planning authority” means the unitary authority or, in a non-unitary area, the district council in whose area the development is carried out.
(4) The relevant planning authority may, on approving a plan or specification for the purposes of this paragraph, specify any respect in which it requires there to be submitted for approval additional details of the operation or work which gives rise to the need for approval under sub-paragraph (1).
(5) Where the relevant planning authority exercises the power conferred under sub-paragraph (4), the plans and specifications in accordance with which the development is required under sub-paragraph (1) to be carried out must, as regards the specified respect, include a plan or specification showing the additional details.
(6) The relevant planning authority may only refuse to approve plans or specifications for the purposes of this paragraph on a ground specified in relation to the work in question in the following table.
Development | Possible grounds for refusal of approval
1. A road vehicle park. | That the design or external appearance of the works ought to, and could reasonably, be modified— to preserve the local environment or local amenity, to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or to preserve a site of archaeological or historic interest or nature conservation value.
That the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.
2. Earthworks. 3. Sight, noise or dust screens. | That the design or external appearance of the works ought to, and could reasonably, be modified— to preserve the local environment or local amenity, to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or to preserve a site of archaeological or historic interest or nature conservation value.
If the development does not form part of a scheduled work, that the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.
4. Transformers, telecommunications masts or pedestrian accesses to railway lines. | That the design or external appearance of the works ought to, and could reasonably, be modified to preserve the local environment or local amenity.
That the development ought to, and could reasonably, be carried out on land elsewhere within the development's permitted limits.
5. Fences and walls (except for sight, noise and dust screens). | That the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.
6. Artificial lighting equipment. | That the design of the equipment, with respect to the emission of light, ought to, and could reasonably, be modified to preserve the local environment or local amenity.
If the development does not form part of a scheduled work, that the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.
(7) The relevant planning authority may only impose conditions on approval for the purposes of this paragraph on a ground specified in the table in sub-paragraph (6) in relation to the work in question.
(8) Any reference in sub-paragraph (2) or (6) to a description of works does not include works of that description of a temporary nature.
(9) In this paragraph—
“construction” includes erection, alteration, extension and (in the case of lighting equipment) installation;
“earthworks” means terracing, cuttings, embankments or other earth works;
“road vehicle park” does not include anything which is a building;
“sight, noise or dust screens” means any fences, walls or other barriers (including bunds) for visual or noise screening or dust suppression.
(10) The requirements in this paragraph do not apply where development to which this paragraph applies is ancillary to development consisting of—
(a) the disposal of waste or spoil, or
(b) the excavation of bulk materials from borrow pits.
(See paragraph 7 as to such development.)
Condition relating to matters ancillary to development
4 (1) If the relevant planning authority is a qualifying authority, development must be carried out in accordance with arrangements about ancillary matters which have been approved by that authority.
(2) In this paragraph “ancillary matters” means—
(a) handling of re-useable spoil or topsoil;
(b) storage sites for construction materials, spoil or topsoil;
(c) construction camps;
(d) works screening;
(e) artificial lighting;
(f) dust suppression;
(g) road mud control measures.
(3) In this paragraph, “relevant planning authority” means, subject to sub-paragraph (4), the unitary authority or, in a non-unitary area, the district council in whose area the development is carried out.
(4) Where the development is in a non-unitary area and consists of the disposal of waste or spoil or the excavation of bulk material from borrow pits, the relevant planning authority in respect of arrangements relating to ancillary matters is the county council.
(5) The reference in sub-paragraph (1) to arrangements does not, in the case of artificial lighting, include detailed arrangements.
(6) The relevant planning authority may only refuse to approve arrangements for the purposes of this paragraph—
(a) on the ground that the arrangements relate to development which, for the purposes of regulating the matter in question, ought to and can reasonably be considered in conjunction with other development which has deemed planning permission under section 17(1) and which is to be carried out in the authority's area, or
(b) on a ground specified in relation to the matter in the following table.
Matters | Grounds
1. Handling of re-useable spoil and topsoil | That the arrangements ought to be modified to ensure that the spoil or topsoil remains in good condition, and are reasonably capable of being so modified.
2. Storage sites for construction materials, spoil or topsoil. 3. Construction camps. 4. Works screening. | That the arrangements ought to be modified— to preserve the local environment, local amenity or a site of archaeological or historic interest or nature conservation value, or to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, and are reasonably capable of being so modified.
5. Artificial lighting. 6 Dust suppression. | That the arrangements ought to be modified to preserve the local environment or local amenity, and are reasonably capable of being so modified.
7. Road mud control measures. | That the arrangements ought to be modified— to preserve the local environment or local amenity, or to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, and are reasonably capable of being so modified.
(7) The relevant planning authority may only impose conditions on approval for the purposes of this paragraph—
(a) with the agreement of the nominated undertaker, and
(b) on a ground specified in the table in sub-paragraph (6)(b) in relation to the matter in question.
(8) In this paragraph—
“artificial lighting” means the use of artificial lighting on land within the Act limits for the purpose of carrying out the development;
“construction camps” means sites on land within the Act limits which are to be used for the residential accommodation of persons engaged in carrying out the development;
“construction materials” means minerals, aggregates or other construction materials required for the development;
“dust suppression” means the suppression of dust caused by construction operations carried out on land within the Act limits for the purpose of carrying out the development;
“handling of re-useable spoil and topsoil” means handling during removal, storage and re-use of any spoil or topsoil removed during the course of carrying out the development;
“road mud control measures” means measures to be taken on land within the Act limits to prevent or reduce the carrying of mud on to any public highway as a result of carrying out the development;
“storage sites” means sites on land within the Act limits at which materials are to be stored until used or re-used in carrying out the development or disposed of as waste;
“works screening” means the provision where necessary on land within the Act limits of any screening for working sites on such land required for the purpose of carrying out the development.
5 (1) The Secretary of State may for the purposes of paragraph 4 make a class approval of arrangements relating to the ancillary matters referred to in paragraph 4(2)(a), (b) and (d) to (g).
(2) A class approval may be made—
(a) generally or in relation to specific areas or specific descriptions of works, and
(b) subject to conditions.
(3) A class approval may make different provision for different cases.
(4) Before making a class approval the Secretary of State must consult the planning authorities who would be affected by it.
(5) Where arrangements made by the nominated undertaker are approved under a class approval, they do not require the approval of the relevant planning authority under paragraph 4.
(6) But the nominated undertaker may in the case of any particular arrangements request approval under paragraph 4.
(7) If the relevant planning authority to which such a request is made considers that the circumstances of the case justify it, the authority may grant approval under paragraph 4 (and, accordingly, the arrangements are subject to that approval instead of the class approval).
(8) A class approval may be varied or revoked.
Condition relating to road transport
6 (1) Where—
(a) the relevant planning authority is a qualifying authority, and
(b) development consists of the use of an authorised site,
arrangements relating to the routes by which anything is to be transported to the site on a highway by a large goods vehicle must be approved by the relevant planning authority.
(2) In this paragraph, “authorised site” means—
(a) a working or storage site,
(b) a site where anything transported to the site will be re-used, or
(c) a waste disposal site.
(3) Where a route to an authorised site includes a special road or trunk road, sub-paragraph (1) requires arrangements to be approved only in relation to transportation on so much of the route as lies between (but does not include) the site and—
(a) the special road or trunk road, or
(b) where the route includes more than one special road or trunk road, the last such road before reaching the site.
(4) In this paragraph “relevant planning authority” means the unitary authority or, in a non-unitary area, the county council in whose area the development is carried out.
(5) The relevant planning authority may only refuse to approve arrangements for the purposes of this paragraph on the ground that—
(a) the arrangements relate to development which, for the purposes of regulating the matter in question, ought to and can reasonably be considered in conjunction with development which has deemed planning permission under section 17(1) and which is to be carried out in the authority's area, or
(b) the arrangements ought to be modified—
(i) to preserve the local environment or local amenity,
(ii) to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or
(iii) to preserve a site of archaeological or historic interest or nature conservation value,
and are reasonably capable of being so modified.
(6) The relevant planning authority may only impose conditions on approval for the purposes of this paragraph—
(a) with the agreement of the nominated undertaker, and
(b) on the ground referred to in sub-paragraph (5)(b).
(7) Sub-paragraph (1) does not require arrangements to be approved in relation to transportation to an authorised site where the number of large goods vehicle movements (whether to or from the site) does not on any day exceed 24.
(8) In this paragraph—
“large goods vehicle” has the same meaning as in Part 4 of the Road Traffic Act 1988;
“special road” and “trunk road” have the same meaning as in the Highways Act 1980.
Conditions relating to waste and spoil disposal and excavation
7 (1) If the relevant planning authority is a qualifying authority, development to which this paragraph applies must be carried out in accordance with plans and specifications for the time being approved by that authority.
(2) This paragraph applies to development to the extent that it consists of—
(a) the disposal of waste or spoil, or
(b) the excavation of bulk materials from borrow pits.
(3) In this paragraph “relevant planning authority” means the unitary authority or, in a non-unitary area, the county council in whose area the development is carried out.
(4) The relevant planning authority may, on approving a plan or specification for the purposes of this paragraph, specify any respect in which it requires there to be submitted for approval additional details of the operation or work which gives rise to the need for approval under sub-paragraph (1).
(5) Where the relevant planning authority exercises the power conferred under sub-paragraph (4), the plans and specifications in accordance with which the development is required under sub-paragraph (1) to be carried out must, as regards the specified respect, include a plan or specification showing the additional details.
(6) The relevant planning authority may only refuse to approve plans or specifications for the purposes of this paragraph on a ground specified in sub-paragraph (7) or (8).
(7) The grounds in this sub-paragraph are that—
(a) the design or external appearance of disposal sites (in the case of the disposal of waste or spoil) or borrow pits (in the case of excavation of bulk material from such pits) on land within the Act limits,
(b) the methods by which such sites or pits are worked, or
(c) the noise, dust, vibration or screening arrangements during the operation of such sites or pits,
ought to, and could reasonably, be modified.
(8) The grounds in this sub-paragraph are that in order to—
(a) preserve the local environment or local amenity,
(b) prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or
(c) preserve a site of archaeological or historic interest or nature conservation value,
the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.
(9) The grounds in sub-paragraph (8) do not apply where the development is—
(a) within the limits of deviation for the scheduled works, or
(b) consists of the use of land specified in columns (1) and (2) of the table in Schedule 6 for a purpose specified in relation to the land in column (3) of that table.
(10) The relevant planning authority may only impose conditions on approval for the purposes of this paragraph—
(a) with the agreement of the nominated undertaker, and
(b) on a ground referred to in sub-paragraph (7) or (8) (taken with sub-paragraph (9)).
8 (1) If the relevant planning authority is a qualifying authority, development to which paragraph 7 applies may not be begun unless the authority has approved a scheme for the restoration of the land on which the development is to be carried out.
(2) In this paragraph “relevant planning authority” has the same meaning as in paragraph 7.
(3) The relevant planning authority may only refuse to approve, or impose conditions on the approval of, a scheme for the purposes of this paragraph on the ground that the scheme ought to be modified, and is reasonably capable of being modified.
(4) The nominated undertaker must carry out a scheme approved for the purposes of this paragraph once it has completed its use of the land to which the scheme relates for the purpose of carrying out the development to which paragraph 7 applies.
(5) In sub-paragraph (1), the reference to restoration includes a reference to restoration in the longer term; and, accordingly, a scheme for the restoration of land may include provision about aftercare.
Conditions on bringing scheduled works and depots into use
9 (1) If the relevant planning authority is a qualifying authority, no work to which this paragraph applies may be brought into use without the approval of that authority.
(2) This paragraph applies to—
(a) any scheduled work, except to the extent that the work is underground, and
(b) any depot constructed, in exercise of the powers conferred under this Act, for use for or in connection with the maintenance of railway vehicles or track, whether or not constructed for use also for other purposes.
(3) In this paragraph “relevant planning authority” means the unitary authority or, in a non-unitary area, the district council in whose area the work is carried out.
(4) The relevant planning authority must grant approval for the purposes of this paragraph if—
(a) it considers that there are no reasonably practicable measures which need to be taken for the purpose of mitigating the effect of the work or its operation on the local environment or local amenity, or
(b) it has approved, at the request of the nominated undertaker, a scheme consisting of provision with respect to the taking of measures for that purpose.
(5) The relevant planning authority may not refuse to approve, or impose conditions on the approval of, a scheme submitted for the purposes of sub-paragraph (4)(b) unless it is satisfied that it is expedient to do so on the ground that the scheme ought to be modified—
(a) to preserve the local environment or local amenity,
(b) to preserve a site of archaeological or historic interest, or
(c) in the interests of nature conservation,
and that the scheme is reasonably capable of being so modified.
(6) In this paragraph “railway vehicle” and “track” have the same meaning as in Part 1 of the Railways Act 1993.
10 Where the relevant planning authority approves a scheme for the purposes of paragraph 9(4)(b), the nominated undertaker must—
(a) carry out the scheme, and
(b) comply with any condition subject to which the scheme is approved.
Condition relating to discontinuation of ancillary operations
11 Where development consists of or includes the carrying out on any site of operations ancillary to the construction of any of the scheduled works, the operations must be discontinued as soon as reasonably practicable after the completion of the scheduled work or works.
Condition relating to site restoration
12 (1) The nominated undertaker must, after discontinuation of the use of any site for carrying out operations ancillary to the construction of any of the scheduled works, restore the site in accordance with a scheme agreed with the relevant planning authority.
(2) In this paragraph “relevant planning authority” means the unitary authority or, in a non-unitary area, the district council in whose area the work is carried out.
(3) For the purposes of sub-paragraph (1) the nominated undertaker must, within four months of the discontinuation of the use, submit a proposed scheme to the relevant planning authority.
(4) If—
(a) the nominated undertaker fails to submit a proposed scheme in accordance with sub-paragraph (3), or
(b) the nominated undertaker submits a proposed scheme in accordance with sub-paragraph (3) but no scheme is agreed for the purposes of sub-paragraph (1) before the end of the relevant period,
the scheme for the purposes of sub-paragraph (1) is to be such as the appropriate Ministers may determine after consulting the nominated undertaker and the relevant planning authority.
(5) In sub-paragraph (4)(b) “the relevant period” means—
(a) eight weeks beginning with the date on which the proposed scheme is submitted, or
(b) such longer period as the nominated undertaker and the relevant planning authority may agree.
(6) A scheme agreed or determined for the purposes of sub-paragraph (1) may reserve particulars for subsequent agreement between the nominated undertaker and the relevant planning authority.
(7) Where a particular reserved under sub-paragraph (6) is not agreed—
(a) by the time specified by or determined in accordance with the scheme, or
(b) by such later time as the nominated undertaker and the relevant planning authority may agree,
that particular is to be determined by the appropriate Ministers after consulting the nominated undertaker and the authority.
(8) Where, independently of any consultation under sub-paragraph (4) or (7), the appropriate Ministers ask the relevant planning authority for assistance in connection with their function under the sub-paragraph in question, they may require the nominated undertaker to reimburse to the relevant planning authority any expenses which the authority reasonably incurs in meeting the request.
(9) Sub-paragraph (1) does not apply to a site—
(a) to the extent that the site consists of land to which a scheme under paragraph 8 (waste or spoil etc) applies, or
(b) in relation to which the nominated undertaker is subject to an obligation under paragraph 5(1) of Schedule 15 (obligation to put land into such condition as an agreed scheme provides, before giving up possession of the land).
PART 2 Qualifying authorities
Specification of qualifying authorities
13 (1) As soon after the day on which this Act is passed as the Secretary of State considers reasonably practicable, the Secretary of State must by regulations specify every planning authority which—
(a) had, on or before the day on which the Bill for this Act was reported from Select Committee in the House of Lords, given the Secretary of State undertakings with respect to the handling of planning matters arising under this Schedule which he or she considered satisfactory, and
(b) has not subsequently been released from its undertakings.
(2) Subject to the following provisions of this paragraph, an authority which is specified under sub-paragraph (1) is a qualifying authority for the purposes of this Schedule.
(3) The Secretary of State may, if he or she considers it expedient to do so, by regulations provide that an authority is to cease to be a qualifying authority for the purposes of this Schedule.
(4) If, in relation to a planning authority which is not a qualifying authority for the purposes of this Schedule, the Secretary of State considers that the way in which the authority carries out its functions has been significantly affected by a change of circumstances occurring since the relevant day, the Secretary of State may by regulations provide that the authority is to be a qualifying authority for the purposes of this Schedule.
(5) In sub-paragraph (4), the reference to the relevant day is—
(a) in relation to an authority which has never been a qualifying authority for the purposes of this Schedule, to the day mentioned in sub-paragraph (1)(a), and
(b) in relation to an authority which has been a qualifying authority for the purposes of this Schedule, to the day on which it ceased, or last ceased, to be such an authority.
(6) Before making regulations under sub-paragraph (3) or (4), the Secretary of State must consult—
(a) the nominated undertaker, and
(b) unless the authority concerned has requested the making of the regulations, that authority.
Transition
14 (1) Regulations under paragraph 13 may contain such transitional provision and savings as the Secretary of State thinks fit.
(2) Without prejudice to the generality of sub-paragraph (1), provision under that sub-paragraph may include provision with respect to the effect of the authority becoming or ceasing to be a qualifying authority in relation to an approval which has already been requested or given.
(3) The Secretary of State may by agreement fetter the exercise of his or her discretion under sub-paragraph (1).
PART 3 Approvals: supplementary
Requests for planning approval
15 A planning authority may only grant approval under Part 1 of this Schedule at the request of the nominated undertaker.
16 (1) A planning authority need not consider a request for approval under Part 1 of this Schedule unless—
(a) the nominated undertaker has deposited with the authority a document setting out its proposed programme with respect to the making of requests under that Part to the authority, and
(b) the request is accompanied by a document explaining how the matters to which the request relates fit into the overall scheme of the works authorised by this Act.
(2) Sub-paragraph (1) does not apply to a request for approval of additional details.
Fees for requests for approval
17 (1) The appropriate Ministers may by regulations make provision about fees for requests to a planning authority for approval under Part 1 of this Schedule.
(2) Regulations under this paragraph may, in particular, make provision—
(a) for the payment of a fee and for the amount of a fee;
(b) about when a fee must be paid;
(c) for circumstances in which a fee is to be treated as paid;
(d) for the remission or refunding of a fee in whole or part;
(e) about the consequences of non-payment of a fee, including provision for the termination of the application concerned or any appeal against its refusal;
(f) for the resolution of disputes.
(3) Regulations under this paragraph may make such supplementary, incidental or consequential provision as the appropriate Ministers think fit.
(4) Nothing in regulations under section 303 of TCPA 1990 (fees for planning applications) applies to a request for approval under Part 1 of this Schedule.
Consultation on requests for approval
18 (1) This paragraph applies where a planning authority considers that a request for approval under Part 1 of this Schedule relates to matters which may affect any of the following—
(a) nature conservation,
(b) the conservation of the natural beauty or amenity of the countryside,
(c) the conservation of the natural beauty or amenity of inland or coastal waters or land associated with them,
(d) the conservation of flora or fauna which are dependent on an aquatic environment,
(e) the use of inland or coastal waters, or land associated with them, for recreational purposes, or
(f) a site of archaeological or historic interest.
(2) The planning authority must, within 5 days of receiving the request, invite the appropriate body or bodies to make representations.
(3) The appropriate body is—
(a) for the matters in sub-paragraph (1)(a) and (b), Natural England,
(b) for the matters in sub-paragraph (1)(c) and (e), Canal & River Trust so far as the matters relate to inland waters owned or managed by the Trust or land associated with such waters,
(c) for the matters in sub-paragraph (1)(c) and (e) other than as mentioned in paragraph (b), the Environment Agency,
(d) for the matter in sub-paragraph (1)(d), the Environment Agency, and
(e) for the matter in sub-paragraph (1)(f), the Historic Buildings and Monuments Commission for England.
(4) Where under sub-paragraph (2) a planning authority has invited a body to make representations about a request for approval under Part 1 of this Schedule, it must not make any decision about the request until—
(a) it has received representations from the body about the request,
(b) it has been informed by the body that it does not wish to make any representations, or
(c) 21 days have elapsed since the date of the invitation.
(5) An invitation under sub-paragraph (2) must specify the time limit for making representations.
Directions restricting powers of approval
19 (1) The appropriate Ministers may by directions restrict a planning authority's powers in relation to the giving of approval under Part 1 of this Schedule.
(2) Directions under this paragraph may—
(a) be given in relation to a specified approval or approvals of a specified description,
(b) be expressed to have effect without a time-limit or during a specified period, and
(c) revoke or vary previous directions under this paragraph.
Compulsory reference of requests for approval
20 (1) The appropriate Ministers may by directions require a planning authority to refer any request for approval under Part 1 to them.
(2) In determining a request referred to them under this paragraph, the appropriate Ministers have the same powers as the authority making the reference.
(3) The determination by the appropriate Ministers of a request referred to them under this paragraph is final.
(4) Directions under this paragraph may—
(a) be given in relation to a specified request or requests of a specified description, and
(b) revoke or vary previous directions under this paragraph.
Non-material changes to approvals
21 (1) A planning authority may at the request of the nominated undertaker make a non-material change to any approval given under Part 1 of this Schedule.
(2) In deciding whether a change is material, a planning authority must have regard to the effect of the change, together with any previous changes made under this paragraph, on the approval as originally given.
(3) The power under sub-paragraph (1) includes power to impose new conditions or to alter or remove existing conditions.
(4) The approval as changed must represent an approval the authority could have given originally.
(5) The consultation requirements in this Part of this Schedule do not apply to a change under this paragraph.
Termination of approval relating to road transportation arrangements
22 (1) An approval under paragraph 6 of arrangements relating to transportation ceases to have effect at the end of the relevant period if the nominated undertaker gives a termination notice to the planning authority which approved the arrangements.
(2) In sub-paragraph (1)—
(a) “termination notice” is a written notice that the arrangements in question are to cease to have effect;
(b) “the relevant period” means the period of 28 days beginning with the day on which the termination notice is given.
Appeals
23 (1) Where the nominated undertaker is aggrieved by a decision of a planning authority on a request for approval under Part 1 (including a decision to require additional details), it may appeal to the appropriate Ministers by giving notice of the appeal in the prescribed form to them and to the authority whose decision is appealed against within 42 days of notification of the decision.
(2) On an appeal under this paragraph, the appropriate Ministers may allow or dismiss the appeal or vary the decision of the authority whose decision is appealed against, but may only make a determination involving—
(a) the refusal of approval, or
(b) the imposition of conditions on approval,
on a ground open to that authority.
(3) Where, following receipt by a planning authority of a request by the nominated undertaker for approval under Part 1, the authority does not notify the undertaker within the appropriate period—
(a) of its decision on the request, or
(b) that the request has been referred to the appropriate Ministers in accordance with directions under paragraph 20,
this paragraph applies as if the authority had refused the request and notified the undertaker of its decision on the last day of the appropriate period.
(4) For the purposes of sub-paragraph (3), the appropriate period is—
(a) the period of 8 weeks beginning with the date on which the request was received by the planning authority, or
(b) such extended period as may be agreed upon in writing between the authority and the nominated undertaker.
(5) The appropriate Ministers may by regulations make provision for the extension of the appropriate period for the purposes of sub-paragraph (3) in connection with the payment of fees by means of cheque.
(6) An agreement under sub-paragraph (4)(b) may be made after, as well as before, the end of the appropriate period.
(7) No agreement may be made under sub-paragraph (4)(b) to extend a period after it has ended if the nominated undertaker has given notice of appeal against the refusal which is deemed under sub-paragraph (3) to have occurred because of the ending of the period.
(8) Where an agreement under sub-paragraph (4)(b) to extend a period is made after the period has ended, sub-paragraph (3) is to be treated as not having applied when the period ended.
(9) In this paragraph, “prescribed” means prescribed by regulations made by the appropriate Ministers.
(10) No appeal under section 78 of TCPA 1990 (right to appeal against planning decisions and failure to take such decisions) may be made against a decision, or failure to notify a decision, in relation to which a right of appeal arises under this paragraph.
24 (1) Unless the appropriate Ministers direct otherwise, their functions in relation to the determination of an appeal under paragraph 23 must, instead of being carried out by them, be carried out by a person appointed by them for the purpose.
(2) The appropriate Ministers may by a further direction revoke a direction under sub-paragraph (1) at any time before the determination of the appeal.
(3) A direction under sub-paragraph (1) or (2) must be served on the nominated undertaker and the planning authority whose decision is appealed against.
(4) At any time before the determination of an appeal by a person appointed for the purpose under this paragraph, the appropriate Ministers may revoke the appointment and appoint another person to determine the appeal instead.
(5) Where the function of determining an appeal under paragraph 23 is transferred from one person to another, the person to whom the function is transferred must consider the matter afresh, but the fact that the function is transferred does not entitle any person to make fresh representations or to modify or withdraw any representations already made.
(6) If the appropriate Ministers determine an appeal which another person was previously appointed to determine, they may, in determining it, take into account any report made to them by that person.
25 The decision of the person appointed under paragraph 24 or, as the case may be, of the appropriate Ministers on an appeal under paragraph 23 is final.
26 (1) An appeal under paragraph 23 is to be dealt with on the basis of written representations, unless the person deciding the appeal directs otherwise.
(2) Subject to that, the appropriate Ministers may by regulations make such provision as they think fit about procedure in relation to appeals under paragraph 23.
(3) Regulations under this paragraph may, in particular—
(a) make provision for a time limit within which any person entitled to make representations must submit them in writing and any supporting documents,
(b) empower the person deciding an appeal to proceed to a decision taking into account only such written representations and supporting documents as were submitted within the time limit, and
(c) empower the person deciding an appeal, after giving written notice of intention to do so to the nominated undertaker and the planning authority whose decision is appealed against, to proceed to a decision notwithstanding that no written representations were made within the time limit, if it appears to the person that there is sufficient material before the person to enable a decision on the merits of the case.
(4) Regulations under this paragraph may, in relation to such a time limit as is mentioned in sub-paragraph (3)(a)—
(a) prescribe the time limit in regulations, or
(b) enable the appropriate Ministers to give directions setting the time limit in a particular case or class of case.
Guidance by Secretary of State
27 (1) The Secretary of State may give guidance to planning authorities in relation to the exercise of their functions under this Schedule.
(2) A planning authority must have regard to the guidance.
(3) The guidance may make different provision for different cases.
(4) The guidance may be varied or revoked.
PART 4 Supplementary and general
Regulations
28 (1) Regulations under this Schedule may make different provision for different cases.
(2) Regulations under this Schedule must be made by statutory instrument.
(3) A statutory instrument containing regulations under this Schedule is subject to annulment in pursuance of a resolution of either House of Parliament.
Interpretation
29 In this Schedule—
“appropriate Ministers” means the Secretary of State for Housing, Communities and Local Government and the Secretary of State for Transport and, in relation to the carrying out of any function, means those Ministers acting jointly;
“building” includes any structure other than—
anything in the nature of plant or machinery,
any gate, fence, wall or other means of enclosure,
any tunnel, earthworks (within the meaning of paragraph 3) or railway track bed,
any sight, noise or dust screens (within the meaning of paragraph 3),
transformers, telecommunication masts or pedestrian accesses to railway lines,
lighting equipment, and
anything underground, except where forming part of a station and intended for use by members of the public without a ticket or other permission to travel;
“permitted limits”, in relation to any development, means the limits of the land on which the works of which the development forms part may be carried out under this Act;
“planning authority” means a county council or a district council.
Section 21(1)
Buildings authorised to be demolished, altered or extended
1 (1) This paragraph applies to—
(a) a listed building which—
(i) was a listed building immediately before 12 June 2017, and
(ii) is specified in table 1 (see the end of this Schedule), and
(b) a listed building which was not a listed building immediately before that date.
(2) If a listed building is one to which this paragraph applies—
(a) section 7 of the Listed Buildings and Conservation Areas Act (restriction on works affecting listed buildings) does not apply to works carried out in relation to the building in exercise of the powers under this Act,
(b) to the extent that a notice issued in relation to the building under section 38(1) of that Act (enforcement) requires the taking of steps which would be rendered ineffective, or substantially ineffective, by works proposed to be carried out in exercise of the powers under this Act, the notice does not have effect or, as the case may be, ceases to have effect,
(c) no steps may be taken in relation to the building under section 42(1) of that Act (execution of works specified in notice under section 38(1)) which would be rendered ineffective, or substantially ineffective, by works proposed to be carried out in exercise of the powers under this Act, and
(d) no works may be executed for the preservation of the building under section 54 of that Act (urgent works to preserve unoccupied listed buildings) which would be rendered ineffective, or substantially ineffective, by works proposed to be carried out in exercise of the powers under this Act.
(3) In the case of a building specified in table 1 in relation to which any description of works is specified in column (3) of the table, sub-paragraph (2)(a) has effect as if the reference to works carried out in exercise of the powers under this Act were, as regards demolition or alteration works (as opposed to extension works), to works so carried out which are of the specified description.
(4) The reference in sub-paragraph (3) to alteration works does not include alteration works carried out—
(a) for heritage or monitoring purposes (see paragraph 9(2)), or
(b) for noise mitigation purposes (see paragraph 9(3)).
Buildings in respect of which noise mitigation works are authorised
2 (1) This paragraph applies to a listed building which—
(a) was a listed building immediately before 12 June 2017, and
(b) is specified in table 2 (see the end of this Schedule).
(2) In the case of a listed building to which this paragraph applies—
(a) section 7 of the Listed Buildings and Conservation Areas Act (restriction on works affecting listed buildings) does not apply to works carried out in relation to the building for noise mitigation purposes (see paragraph 9(3)),
(b) to the extent that a notice issued in relation to the building under section 38(1) of that Act (enforcement) requires the taking of steps which would be rendered ineffective, or substantially ineffective, by works proposed to be carried out in exercise of the powers under this Act, the notice does not have effect or, as the case may be, ceases to have effect,
(c) no steps may be taken in relation to the building under section 42(1) of that Act (execution of works specified in notice under section 38(1)) which would be rendered ineffective, or substantially ineffective, by works proposed to be carried out in exercise of the powers under this Act, and
(d) no works may be executed for the preservation of the building under section 54 of that Act (urgent works to preserve unoccupied listed buildings) which would be rendered ineffective, or substantially ineffective, by works proposed to be carried out in exercise of the powers under this Act.
Damage to buildings
3 Section 59 of the Listed Buildings and Conservation Areas Act (acts causing or likely to result in damage to listed buildings) does not apply to anything done in exercise of the powers under this Act with respect to works.
Power to disapply provision made by paragraphs 1 to 3
4 (1) The Secretary of State may by regulations make any provision specified in sub-paragraph (2) in relation to any work constructed in exercise of the powers under this Act.
(2) The provision referred to in sub-paragraph (1) is—
(a) provision that paragraph 1(2)(a) or 2(2)(a) does not apply in relation to relevant works;
(b) provision that paragraph 1(2)(b) to (d) or 2(2)(b) to (d) does not apply in relation to proposed relevant works;
(c) provision that paragraph 3 does not apply in relation to relevant works.
(3) “Relevant works” means works which are—
(a) carried out in exercise of the powers under this Act for the maintenance or alteration of the work referred to in sub-paragraph (1), and
(b) begun on or after such day as may be specified in regulations under that sub-paragraph.
(4) Regulations under sub-paragraph (1) may make different provision for different purposes.
(5) Regulations under sub-paragraph (1) must be made by statutory instrument; and a statutory instrument containing such regulations must be laid before Parliament after being made.
Heritage partnership agreements
5 The provisions of any agreement under section 26A of the Listed Buildings and Conservation Areas Act (heritage partnership agreements) in relation to a building have effect subject to the powers under this Act with respect to works.
Inspection and observation of works
6 (1) Any person duly authorised in writing by the Historic Buildings and Monuments Commission for England (“the Commission”) or the relevant planning authority may at any reasonable time enter land for the purpose of inspecting or observing the carrying out in relation to any building on the land of decontrolled works.
(2) “Relevant planning authority” means the unitary authority or, in a non-unitary area, the district council in whose area the building is situated.
(3) The right under sub-paragraph (1) is not exercisable at a time when the nominated undertaker reasonably considers that it is not safe to exercise it.
(4) A person exercising the right under sub-paragraph (1) must comply with directions given by the nominated undertaker for the purpose of securing compliance with relevant health and safety provisions.
Recording of buildings
7 (1) The nominated undertaker must not carry out decontrolled works consisting of the demolition of a listed building unless—
(a) notice of the proposal to carry out the works has been given to the Commission, and
(b) the appropriate period since the giving of the notice has expired.
(2) The appropriate period, subject to sub-paragraph (3), is—
(a) 8 weeks, or
(b) such longer period as may have been agreed between the nominated undertaker and the Commission.
(3) In case of emergency, the appropriate period is such period as is reasonable in the circumstances.
(4) In determining whether the appropriate period has expired, any day on which entry to the building is refused under paragraph 8(2) is to be disregarded.
8 (1) Following the giving of a notice under paragraph 7(1) in relation to a listed building, any person duly authorised in writing by the Commission may, at any reasonable time during the inspection period, enter the building for the purpose of recording it.
(2) The right under sub-paragraph (1) is not exercisable at a time when the nominated undertaker reasonably considers that it is not safe to exercise it.
(3) A person exercising the right under sub-paragraph (1) must comply with directions given by the nominated undertaker for the purpose of securing compliance with relevant health and safety provisions.
(4) For the purposes of sub-paragraph (1), the inspection period, in relation to a building which is the subject of a notice under paragraph 7(1), is the period—
(a) beginning when notice under that provision is given, and
(b) ending when the prohibition under that provision ceases to apply to the building.
Interpretation
9 (1) In this Schedule—
“building” and “listed building” have the same meaning as in the Listed Buildings and Conservation Areas Act;
“decontrolled works” means works to which section 7 of the Listed Buildings and Conservation Areas Act would apply, but for paragraph 1(2)(a) or 2(2)(a) of this Schedule;
“the Listed Buildings and Conservation Areas Act” means the Planning (Listed Buildings and Conservation Areas) Act 1990.
(2) For the purposes of this Schedule, works relating to a building are carried out for heritage or monitoring purposes if the works are carried out for the purpose of—
(a) maintaining or restoring the building's character as a building of special architectural or historical interest, or
(b) affixing apparatus to any part of the building with a view to measuring any movement in the building or the ground on which it is erected in consequence of the carrying out of works in exercise of the powers under this Act.
(3) For the purposes of this Schedule, works relating to a building are carried out for noise mitigation purposes if the works are carried out in exercise of the power in paragraph 9 of Schedule 2.
(4) Anything which, by virtue of section 1(5) of the Listed Buildings and Conservation Areas Act (objects or structures fixed to, or within curtilage of, a building), is treated as part of a building for the purposes of that Act is to be treated as part of the building for the purposes of this Schedule.
Tables
TABLE 1: buildings authorised to be demolished, altered or extended
(1) | (2) | (3)
Area | Building | Works
County of Staffordshire District of Newcastle-under-Lyme Parish of Madeley | Milepost at NGR SJ 7687 4413 LB Grade II | Removal to storage and replacement following completion of the authorised works
Parish of Whitmore | Milepost at NGR SJ 7980 4054 Grade II | Removal to storage and replacement following completion of the authorised works
Parish of Maer | Milepost at NGR SJ 7724 3878 Grade II | Removal to storage and replacement following completion of the authorised works
County of Cheshire Town of Crewe | 1867 buildings at Crewe Railway Station Grade II | Modifications to platforms, signage, overhead lines, cable routes and other associated railway systems to facilitate additional services running through Crewe on the West Coast Main Line and the construction of footbridges to link platforms
TABLE 2: buildings in respect of which noise mitigation works are authorised
(1) | (2)
Area | Building
County of Staffordshire District of Rugeley Parish of Blithbury | Woodhouse Farm Grade II
District of Newcastle-under-Lyme Parish of Madeley | Hey House Grade II
Parish of Whitmore | Snape Hall Farmhouse Grade II
Section 21(2)
Disapplication of controls
1 (1) This paragraph has effect in relation to the Ancient Monuments and Archaeological Areas Act 1979.
(2) Section 2 (control of works affecting scheduled monuments) does not apply to works authorised by this Act.
(3) The powers of entry under the following provisions are not exercisable in relation to land used for or in connection with the carrying out of any of the works authorised by this Act—
section 6(1) (entry to ascertain condition of scheduled monument);
section 6A(1) (entry to enforce control of works affecting scheduled monument);
section 26 (entry to record matters of archaeological or historical interest).
(4) The provisions of the Act with respect to the functions of a person as a guardian by virtue of the Act, and the provisions of any agreement under section 17 (agreement concerning ancient monuments and land in their vicinity), have effect subject to the powers under this Act with respect to works.
(5) Section 19 (public access to monuments under public control) does not apply in relation to a monument which is closed by the nominated undertaker for the purposes of, in connection with or in consequence of the carrying out of any of the works authorised by this Act.
(6) Regulations under section 19(3) or (4A) (which may include provision prohibiting or regulating acts which would tend to injure or disfigure a monument or its amenities or to disturb the public in their enjoyment of it) do not apply to anything done in exercise of the powers under this Act with respect to works.
(7) The power under section 19(6) (power to refuse admission to monuments under public control) is not exercisable so as to prevent or restrict the exercise of the powers under this Act with respect to works.
(8) In section 25 (treatment of ancient monuments)—
(a) subsection (2) (superintendence by Commission) does not authorise the superintendence of the carrying out of any of the works authorised by this Act, and
(b) subsection (3) (power of Commission to charge for advice under subsection (1)) does not apply in relation to advice given in connection with the carrying out of any of those works.
(9) Section 28 (offence of damaging certain ancient monuments) does not apply to anything done in exercise of the powers under this Act with respect to works.
(10) Section 35 (notice required of operations in areas of archaeological importance) does not apply to operations carried out in exercise of the powers under this Act with respect to works.
(11) Section 39(1) (power to investigate in advance of operations notice any site which may be acquired compulsorily) has effect as if operations carried out in exercise of the powers under this Act with respect to works were exempt operations for the purposes of that provision.
(12) Section 42(1) (prohibition on use of metal detectors in protected places without consent) does not apply to the use of a metal detector for the purposes of or in connection with the exercise of the powers under this Act with respect to works.
(13) Section 42(3) (prohibition on removal without consent of object discovered by use of a metal detector in a protected place) does not apply to the removal of objects discovered by the use of a metal detector for the purposes of or in connection with the exercise of the powers under this Act with respect to works.
2 (1) The consent of the nominated undertaker is required for the exercise of the power of entry under section 36(1) of the National Heritage Act 1983 (entry to obtain information about ancient monuments and historic buildings for the purposes of the records kept by the Commission) in relation to land used, or intended for use, for or in connection with the carrying out of any of the works authorised by this Act.
(2) Consent for the purposes of sub-paragraph (1)—
(a) must not be unreasonably withheld;
(b) may be granted subject to compliance with any reasonable requirements or conditions imposed for reasons of safety or for the purpose of preventing interference with or delay to the works.
(3) Section 36(6) of the National Heritage Act 1983 (which, in relation to land on which works are being carried out, regulates the exercise of the power under section 36(1) to enter land to obtain information) does not apply in relation to land on which works authorised by this Act are being carried out.
(4) Any dispute under this paragraph must be referred to arbitration if the parties so agree, but must otherwise be determined by the Secretary of State for Transport and the Secretary of State for Culture, Media and Sport acting jointly.
Power to disapply provision made by paragraphs 1 and 2
3 (1) The Secretary of State may by regulations make any provision specified in sub-paragraph (2) in relation to any work constructed in exercise of the powers under this Act.
(2) The provision referred to in sub-paragraph (1) is—
(a) provision that paragraph 1(2) does not apply in relation to relevant works;
(b) provision that paragraph 1(3) does not apply in relation to land used for or in connection with the carrying out of relevant works;
(c) provision that paragraph 1(8)(a) and (b) do not apply in relation to relevant works;
(d) provision that paragraph 1(10) and (11) do not apply in relation to operations carried out in exercise of the powers under this Act which are, or are carried out in connection with, relevant works;
(e) provision that paragraph 1(12) does not apply in relation to use of a metal detector for the purposes of or in connection with relevant works;
(f) provision that paragraph 1(13) does not apply in relation to removal of objects discovered by any such use;
(g) provision that paragraph 2(1) does not apply in relation to land used, or intended for use, for or in connection with the carrying out of relevant works;
(h) provision that paragraph 2(3) does not apply in relation to land on which relevant works are being carried out.
(3) In this paragraph, “relevant works” means works which are—
(a) carried out in exercise of the powers under this Act for the maintenance or alteration of the work referred to in sub-paragraph (1), and
(b) begun on or after such day as may be specified in regulations under that sub-paragraph.
(4) Regulations under sub-paragraph (1) may make different provision for different purposes.
(5) Regulations under sub-paragraph (1) must be made by statutory instrument; and a statutory instrument containing such regulations must be laid before Parliament after being made.
Inspection and observation of works etc
4 (1) Any person duly authorised in writing by the Commission may at any reasonable time enter land on which (or in or under which) a scheduled monument is situated—
(a) for the purpose of observing or advising upon the exercise in relation to the land of any of the powers under paragraph 1 of Schedule 2 to this Act, or
(b) for the purpose of inspecting, observing or advising upon the carrying out of any works on the land in exercise of any of the other powers under this Act.
(2) The right under sub-paragraph (1) is not exercisable at a time when the nominated undertaker reasonably considers that it is not safe to exercise it.
(3) A person exercising the right under sub-paragraph (1) must comply with directions given by the nominated undertaker for the purpose of securing compliance with relevant health and safety provisions.
(4) In this paragraph, “scheduled monument” has the same meaning as in the Ancient Monuments and Archaeological Areas Act 1979.
Interpretation
5 In this Schedule, references to “the Commission” are to the Historic Buildings and Monuments Commission for England.
Section 22
Notice of removal of remains or monument
1 (1) Before removing from the land in question any remains or any monument to the deceased, the nominated undertaker must—
(a) publish a notice complying with sub-paragraph (2) in each of two successive weeks in a newspaper circulating in the area where the land is situated, and
(b) at the same time leave such a notice displayed in a conspicuous place on or near the land.
(2) A notice under sub-paragraph (1) must—
(a) identify the land to which it relates,
(b) set out in general terms the effect of paragraphs 2 to 7 (so far as relevant to remains to which sub-paragraph (1) applies),
(c) state where, and in what form, an application under paragraph 2(1) may be made, and
(d) state how the nominated undertaker proposes to carry out its functions under this Schedule with respect to the disposal of the remains or monument.
(3) No notice is required under sub-paragraph (1) before the removal of any remains or any monument to the deceased where the Secretary of State notifies the nominated undertaker that the Secretary of State is satisfied—
(a) that the remains were buried more than 100 years ago, and
(b) that no relative or personal representative of the deceased is likely to object to the remains or monument being removed in accordance with this Schedule.
(4) No notice is required under sub-paragraph (1) before the removal of any remains or any monument to the deceased if—
(a) a court has granted a faculty, in relation to the remains, to the nominated undertaker or a body corporate which is a member of the same group as the nominated undertaker, or
(b) on the passing of this Act, a licence under section 25 of the Burial Act 1857 (bodies not to be removed from burial grounds without licence of the Secretary of State) is in force in relation to the remains and the holder of the licence is the nominated undertaker or a body corporate which is a member of the same group as the nominated undertaker.
(5) In sub-paragraph (4)—
“court” has the meaning given by section 25(4) of the Burial Act 1857;
“group” means a body corporate and all other bodies corporate which are its subsidiaries within the meaning given by section 1159 of the Companies Act 2006.
Removal of remains under licence
2 (1) In the case of remains in relation to which paragraph 1(1) applies, the nominated undertaker must issue a licence for the removal of the remains if—
(a) it receives an application in writing from a relative or personal representative of the deceased, and
(b) the application is received before the end of the period of 56 days after the day on which notice relating to the remains is first published under paragraph 1(1)(a).
(2) In the case of remains in relation to which paragraph 1(3) applies, the nominated undertaker must issue a licence for the removal of the remains if—
(a) it receives an application in writing from a relative or personal representative of the deceased, and
(b) the application is received before the nominated undertaker has removed the remains under paragraph 4(1).
(3) A licensee under this paragraph may remove the remains to which the licence relates and bury them elsewhere or cremate them.
(4) The nominated undertaker must pay the reasonable costs of removal and reburial or cremation under this paragraph.
Removal of remains by nominated undertaker
3 (1) In the case of remains in relation to which paragraph 1(1) applies, the nominated undertaker may remove the remains after the expiry of the period of 56 days referred to in paragraph 2(1)—
(a) if no application under paragraph 2(1) has been received, or
(b) in a case where one or more applications under paragraph 2(1) have been received, if in the case of each application—
(i) a licence has been issued, and
(ii) at least 28 days have passed since the issue of the licence without the remains having been removed.
(2) The nominated undertaker must within two months of the removal of remains under sub-paragraph (1)—
(a) bury them in a place (whether or not consecrated) which is set apart for the purposes of burial, or
(b) cremate them in a crematorium.
(3) If—
(a) an application is made to the nominated undertaker under paragraph 2(1),
(b) the application is refused on the ground that the nominated undertaker is not satisfied that the applicant is a relative or personal representative of the deceased,
(c) within the period of 28 days beginning with the date of the notice of refusal the applicant has applied to the county court for a declaration that he or she is a relative or personal representative of the deceased (see paragraph 11(2)(b)), and
(d) that period of 28 days has elapsed without the court having determined the application made to it,
the nominated undertaker may remove the remains and any monument to the deceased.
(4) The nominated undertaker must, pending the court's determination, deal with any remains or monument removed under sub-paragraph (3) in such manner as the Secretary of State may direct.
4 (1) In the case of remains in relation to which paragraph 1(3) applies, the nominated undertaker may remove the remains—
(a) if no application under paragraph 2(2) has been received, or
(b) in a case where one or more applications under paragraph 2(2) have been received, if in the case of each application—
(i) a licence has been issued, and
(ii) at least 28 days have passed since the issue of the licence without the remains having been removed.
(2) The nominated undertaker must after the removal of remains under sub-paragraph (1)—
(a) within 12 months or such longer period as the Secretary of State may direct in relation to the case—
(i) bury them in a place (whether or not consecrated) which is set apart for the purposes of burial, or
(ii) cremate them in a crematorium, or
(b) deal with them in such other manner, and subject to such conditions, as the Secretary of State may direct.
(3) If—
(a) an application is made to the nominated undertaker under paragraph 2(2),
(b) the application is refused on the ground that the nominated undertaker is not satisfied that the applicant is a relative or personal representative of the deceased,
(c) within the period of 28 days beginning with the date of the notice of refusal the applicant has applied to the county court for a declaration that he or she is a relative or personal representative of the deceased (see paragraph 11(2)(b)), and
(d) that period of 28 days has elapsed without the court having determined the application made to it,
the nominated undertaker may remove the remains and any monument to the deceased.
(4) The nominated undertaker must, pending the court's determination, deal with any remains or monument removed under sub-paragraph (3) in such manner as the Secretary of State may direct.
5 (1) In the case of remains in relation to which paragraph 1(4) applies—
(a) the nominated undertaker may remove the remains, and
(b) if it does so, it is to be treated for the purposes of this Act as acting under this paragraph and not under the faculty or licence mentioned in paragraph 1(4).
(2) The nominated undertaker must within two months of the removal of remains under sub-paragraph (1)—
(a) bury them in a place (whether or not consecrated) which is set apart for the purposes of burial, or
(b) cremate them in a crematorium.
(3) Sub-paragraph (2) does not apply if the Secretary of State is satisfied that the remains were buried more than 100 years ago; and in such a case the nominated undertaker must, after the removal of remains under sub-paragraph (1)—
(a) within 12 months or such longer period as the Secretary of State may direct in relation to the case—
(i) bury them in a place (whether or not consecrated) which is set apart for the purposes of burial, or
(ii) cremate them in a crematorium, or
(b) deal with them in such other manner, and subject to such conditions, as the Secretary of State may direct.
Removal of monuments
6 (1) Where a licence to remove any remains is issued under paragraph 2(1) or (2), the licensee may remove from the land any monument to the deceased and re-erect it elsewhere or otherwise dispose of it.
(2) The nominated undertaker must pay the reasonable costs of removal and re-erection under sub-paragraph (1).
7 (1) Where any remains are removed under a licence under paragraph 2(1) or (2), the nominated undertaker may remove from the land any monument to the deceased which is not removed by the licensee within 28 days of the issue of the licence.
(2) Where the nominated undertaker removes any remains under paragraph 3, 4 or 5, it may also remove from the land any monument to the deceased.
(3) Where any remains are removed (by a person other than the nominated undertaker) under a faculty or a licence under section 25 of the Burial Act 1857, the nominated undertaker may remove from the land any monument to the deceased which is not removed by the person to whom the faculty is granted or the licensee (as the case may be).
(4) The nominated undertaker may move any monument removed under this paragraph to the place, if any, where the remains of the deceased are buried or to some other appropriate place.
(5) The nominated undertaker must break and deface any monument removed under this paragraph which is not dealt with under sub-paragraph (4).
Records
8 (1) Where any remains in relation to which paragraph 1(1) applies are removed under this Schedule, or remains in relation to which paragraph 1(4) applies are removed under paragraph 5(2), the nominated undertaker must, within two months of the removal, provide the Registrar General with a certificate which—
(a) identifies the remains, so far as practicable,
(b) states the date on which, and the place from which, the remains were removed, and
(c) states the date and place of reburial or cremation.
(2) Where any remains in relation to which paragraph 1(3) applies are removed under this Schedule, or remains in relation to which paragraph 1(4) applies are removed under paragraph 5(3), the nominated undertaker must, within 12 months of the removal or such longer period as the Secretary of State may direct in relation to the case, provide the Registrar General with a certificate which—
(a) identifies the remains, so far as practicable,
(b) states the date on which, and the place from which, the remains were removed,
(c) if at the time the certificate is provided the remains have been reburied or cremated, states the date and place of reburial or cremation, and
(d) if at that time the remains have not been reburied or cremated, states where and by whom they are kept.
(3) Where any monument is removed under this Schedule, the nominated undertaker must, within two months of the removal—
(a) deposit with the local authority in whose area the monument was situated prior to the removal a record which—
(i) identifies the monument,
(ii) gives any inscription on it,
(iii) states the date on which, and the place from which, it was removed, and
(iv) states the place, if any, to which it was moved or how it was disposed of, and
(b) provide the Registrar General with a copy of the record deposited under paragraph (a).
(4) The nominated undertaker may require any person who removes remains or a monument under this Schedule to provide it with any information about the remains or monument removed which it needs in order to comply with sub-paragraph (1), (2) or (3).
(5) In sub-paragraph (3)(a), “local authority” means the unitary authority or, in a non-unitary area, the district council.
Discharge of functions by nominated undertaker
9 (1) Where the nominated undertaker removes remains in relation to the removal of which a licence has been granted under paragraph 2(1) or (2), it must carry out in accordance with the reasonable requests of the licensee—
(a) its functions under paragraph 3 or 4 with respect to disposal of the remains, and
(b) if it removes any monument to the deceased, the functions under paragraph 7 with respect to disposal of the monument.
(2) In a case where more than one licence is granted under paragraph 2(1) or (2) and the licensees make different reasonable requests for the purposes of sub-paragraph (1), the nominated undertaker must carry out the functions referred to in that sub-paragraph in accordance with directions given by the Secretary of State.
(3) Directions under sub-paragraph (2) may include directions that—
(a) a licensee may apply to the county court to determine how remains or a monument are to be disposed of, and
(b) how the remains or monument are to be dealt with pending the court's determination.
10 The Secretary of State may give such directions as the Secretary of State thinks fit with respect to the carrying out of any function of the nominated undertaker under this Schedule.
Relatives and personal representatives
11 (1) In this Schedule, references to a relative of the deceased are to a person who—
(a) is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased, or
(b) is, or is a child of, a brother, sister, uncle or aunt of the deceased.
(2) For the purposes of this Schedule, a person is to be taken to be a relative or personal representative of the deceased if—
(a) the nominated undertaker is satisfied that the person is a relative or personal representative of the deceased, or
(b) the county court, on the application of the person, has declared that the person is a relative or personal representative of the deceased.
Section 27
Water abstraction and impounding
1 The restriction imposed by section 24(1) of WRA 1991 (restriction on the abstraction of water) does not apply in relation to the abstraction of water for the purposes of or in connection with the construction of the works authorised by this Act.
2 Section 25 of WRA 1991 (restrictions on impounding) does not apply to anything done in exercise of the powers conferred by this Act with respect to works.
3 (1) Section 48A(1) of WRA 1991 (duty not to cause loss or damage to another by the abstraction of water) does not apply in relation to the abstraction of water in connection with the exercise of the powers conferred by this Act.
(2) Where—
(a) the nominated undertaker causes loss or damage to another person by the abstraction of water in connection with the exercise of the powers conferred by this Act, and
(b) the circumstances are such that causing the loss or damage would have constituted breach of the duty under section 48A(1) of WRA 1991, but for sub-paragraph (1),
the nominated undertaker must compensate the other person for the loss or damage.
(3) Compensation under sub-paragraph (2) is to be assessed on the same basis as damages for breach of the duty under section 48A(1) of WRA 1991.
(4) Section 48A(5) of WRA 1991 (prohibition of claims in respect of loss or damage caused by abstraction of water which are not claims under that section) has no application to claims under—
(a) this paragraph, or
(b) Part 4 of Schedule 32.
No environmental permit required for operating regulated facility etc
4 (1) Regulation 12(1) of the Environmental Permitting Regulations (which requires an environmental permit for certain activities) does not apply to the carrying on of a relevant flood risk activity, a water discharge activity or a groundwater activity in exercise of the powers conferred by this Act with respect to works.
(2) In this paragraph—
(a) “groundwater activity” and “water discharge activity” have the meaning given, respectively, by paragraph 3 of Schedule 22 and paragraph 3 of Schedule 21 to the Environmental Permitting Regulations;
(b) “relevant flood risk activity” means an activity within paragraph 3(1)(a), (b) or (c) of Schedule 25 to those Regulations;
(c) “Environmental Permitting Regulations” means the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154).
Floods
5 Paragraph 5 of Schedule 1 to FWMA 2010 (consent required for alteration, removal or replacement of designated feature) does not apply to anything done in exercise of the powers conferred by this Act with respect to works.
Drainage
6 Paragraph 7 of Schedule 3 to FWMA 2010 (approval required for drainage system for construction work) does not apply in relation to anything done in exercise of the powers conferred by this Act with respect to works.
Eels
7 Part 4 of the Eels (England and Wales) Regulations 2009 (S.I. 2009/3344) (passage of eels) does not apply to anything done in exercise of the powers conferred by this Act with respect to works.
Interpretation
8 In this Schedule—
“abstraction” has the same meaning as in WRA 1991;
“FWMA 2010” means the Flood and Water Management Act 2010;
“WRA 1991” means the Water Resources Act 1991.
Section 28(1)
Building regulations
1 (1) Nothing in—
(a) Part 1 of the 1984 Act with respect to building regulations, or
(b) any building regulations,
applies to a building held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(2) Sub-paragraph (1) does not apply in relation to a building which is a house or hotel.
(3) Sub-paragraph (1) does not apply in relation to a building which is used as offices or showrooms unless it forms part of a railway station or other railway facility.
(4) In sub-paragraph (3), “railway facility” includes a maintenance depot, electrical supply facility or stabling facility used for the purposes of a railway.
(5) The reference in sub-paragraph (1)(b) to building regulations does not include the provisions listed in regulation 34(1) of the Building Regulations 2010 (S.I. 2010/2214) (requirements relating to energy efficiency).
Drain repairs
2 In section 61 of the 1984 Act—
(a) subsection (2) (local authority officers to have access to drain repair works), and
(b) subsection (3) (offence for failure to comply with section 61),
do not apply to the repair, reconstruction or alteration of an underground drain which is carried out for Phase 2a purposes.
Drain disconnections
3 Where works described in section 62(1)(a), (b) or (c) of the 1984 Act (reconstruction and other drain works) are carried out for Phase 2a purposes, section 62 of the 1984 Act (which requires drains to be disconnected when they become disused or unnecessary in consequence of reconstruction and other works) has effect as if—
(a) in subsection (1), for “as the local authority may reasonably require” there were substituted “ as the person considers necessary ”,
(b) subsections (2) and (3) were omitted,
(c) for subsection (4) there were substituted—
(4) Before carrying out works described in subsection (1)(a), (b) or (c), the person carrying out the works must give at least 48 hours' notice to the local authority.
, and
(d) subsection (5) were omitted.
Raising of chimneys
4 (1) This paragraph applies where—
(a) the nominated undertaker is given a notice under section 73(1) of the 1984 Act (notice requiring chimney of adjoining building to be raised and requiring owner or occupier of that building to allow access to it for that purpose),
(b) the taller building is a building held, or to be held, by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act, and
(c) the owner or occupier of the adjoining building referred to in section 73(1)(b) of the 1984 Act serves a counter-notice on the nominated undertaker.
(2) The owner or occupier of the adjoining building may not enter upon relevant Phase 2a land, for the purposes of carrying out the work to which the counter-notice relates, without the consent of the Secretary of State or the nominated undertaker.
(3) “Relevant Phase 2a land” means land held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under the Act.
(4) Where, by reason of the withholding of consent for the purposes of sub-paragraph (2), the owner or occupier of the adjoining building is unable to carry out the work to which the counter-notice relates, the counter-notice ceases to have effect.
(5) In this paragraph, references to “the taller building” and a “counter-notice” are to be construed in accordance with section 73 of the 1984 Act.
Construction of cellars and rooms below subsoil water level
5 (1) Section 74(1) of the 1984 Act (which requires local authority consent for the construction of a cellar or room below subsoil water level in, or as part of, a house, shop, inn, hotel or office) does not apply to the construction of a cellar or room in connection with a shop, inn, hotel or office which forms part of a railway station or other railway facility which is being used, or which is intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(2) In sub-paragraph (1), “railway facility” includes a maintenance depot, electrical supply facility or stabling facility used for the purposes of a railway.
Demolition of whole or part of building
6 Sections 80(2)(b), 81 and 82 of the 1984 Act (which concern a local authority's power to serve notice about a demolition) do not apply to the demolition of the whole or part of a building carried out in exercise of the powers under this Act and to which section 80 of the 1984 Act otherwise applies.
Interpretation
7 In this Schedule—
“the 1984 Act” means the Building Act 1984;
“building regulations” has the same meaning as in the 1984 Act (see section 122 of that Act).
Section 28(2)
1 In this Schedule, “the 1996 Act” means the Party Wall etc. Act 1996.
2 No notice under section 1(2) or (5) of the 1996 Act (notice before building on line of junction with adjoining land) is required before the building of any wall for Phase 2a purposes.
3 Sections 1(6) and 2 of the 1996 Act (rights of adjoining owners) do not have effect to confer rights in relation to—
(a) anything held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act, or
(b) land on which there is any such thing.
4 No party structure notice under section 3 of the 1996 Act is required before the exercise of any right conferred by section 2 of that Act (right to repair etc party wall) for the purposes of or in connection with—
(a) the construction of the works authorised by this Act, or
(b) the maintenance of any such work during the period beginning with the date on which the work is completed and ending 5 years after the date on which it is brought into general use.
5 Section 6 of the 1996 Act (underpinning of adjoining buildings) does not apply in relation to a proposal to excavate, or excavate for and erect anything, for Phase 2a purposes.
6 (1) Where—
(a) a building owner (within the meaning of the 1996 Act) serves a notice under section 6(5) of that Act, and
(b) the building or structure of the adjoining owner (within the meaning of that Act) referred to in that provision is a building or structure—
(i) erected for Phase 2a purposes, or
(ii) situated on land held by the Secretary of State or the nominated undertaker for the purposes of the nominated undertaker's undertaking under this Act,
section 6 of that Act has effect with the following modifications.
(2) Those modifications are—
(a) subsection (3) is omitted;
(b) for subsections (6) and (7) substitute—
(6) The notice referred to in subsection (5) (“the proposals notice”)—
(a) shall be accompanied by plans and sections showing—
(i) the site and depth of any excavation the building owner proposes to make; and
(ii) if he proposes to erect a building or structure, its site; and
(b) where the notice includes a proposal to underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner, shall—
(i) include a detailed description of those works; and
(ii) specify the building owner's programme for carrying them out.
(6A) The adjoining owner may serve a notice on the building owner consenting to the proposals notice.
(6B) Where the proposals include the carrying out of works mentioned in subsection (6)(b), the consent notice served under subsection (6A) must state whether the adjoining owner—
(a) is to carry out those works himself, or
(b) requires the works to be carried out by the building owner.
(7) If an owner on whom a proposals notice has been served does not serve a consent notice within the period of 14 days beginning with the day on which the proposals notice was served, he shall be deemed to have dissented from the notice and a dispute shall be deemed to have arisen between the parties.
(7A) Works to underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner (whether proposed in the proposals notice or otherwise) are to be carried out by the adjoining owner, unless the building owner is required to carry them out—
(a) by virtue of a requirement within subsection (6B)(b), or
(b) where a dispute is deemed to have arisen between the parties in relation to any matter, by a notice served by the adjoining owner on the building owner within the period of 14 days beginning with—
(i) the day on which the parties settle the dispute, or
(ii) the day on which an award is made under section 10 in relation to the dispute.
(7B) The works (whether carried out by the adjoining owner or the building owner) are to be carried out—
(a) at the building owner's expense, and
(b) in accordance with the description and programme agreed by the parties (whether by virtue of a consent notice or in connection with the settlement of any dispute) or determined in accordance with section 10 (in the case of a dispute in relation to which an award is made under that section).
7 (1) This paragraph applies where a dispute arises or is deemed to have arisen in respect of a matter connected with any work to which the 1996 Act relates and the work—
(a) is required for Phase 2a purposes, or
(b) relates to a building or structure situated on land held by the Secretary of State or the nominated undertaker for the purposes of the nominated undertaker's undertaking under this Act.
(2) In such a case, the 1996 Act has effect as if for section 10 (resolution of disputes) there were substituted—
Resolution of disputes
10 (1) Where a dispute arises or is deemed to have arisen between a building owner and an adjoining owner in respect of any matter connected with any work to which this Act applies, the dispute is to be settled by a single arbitrator, who is to be—
(a) agreed on by both parties, or
(b) in default of agreement, appointed on the application of either party, after notice in writing to the other, by the President of the Institution of Civil Engineers.
(2) If the arbitrator—
(a) refuses to act,
(b) neglects to act for a period of 10 days beginning with the day on which either party serves a request on the arbitrator,
(c) dies before the dispute is settled, or
(d) becomes or deems himself or herself incapable of acting,
subsection (1) applies again.
(3) The arbitrator must settle by award any matter—
(a) which is connected with any work to which this Act relates, and
(b) which is in dispute between the building owner and the adjoining owner.
(4) An award may determine—
(a) the right to execute any work;
(b) the time and manner of executing any work; and
(c) any other matter arising out of or incidental to the dispute including the costs of making the award.
(5) But, unless otherwise agreed between the building owner and the adjoining owner, any period appointed by the award for executing any work does not begin to run until after the end of the period prescribed by this Act for service of the notice in respect of which the dispute arises or is deemed to have arisen.
(6) The reasonable costs incurred in—
(a) making or obtaining an award under this section,
(b) reasonable inspections of work to which the award relates, and
(c) any other matter arising out of the dispute,
are to be paid by such of the parties as the arbitrator determines.
(7) Where the arbitrator makes an award, the arbitrator must serve it forthwith on the parties.
(8) The award is conclusive and must not except as provided by this section be questioned in any court.
(9) Either of the parties to the dispute may appeal to the county court against the award within the period of 14 days beginning with the day on which the award is served on the party making the appeal.
(10) On such an appeal, the county court may—
(a) rescind the award or modify it in such manner as the court thinks fit; and
(b) make such order as to costs as the court thinks fit.
(3) Where the 1996 Act has effect as mentioned in sub-paragraph (2)—
(a) section 7(5) has effect as if the words “(or surveyors acting on their behalf)” were omitted,
(b) section 8(5) has effect as if the reference to a surveyor appointed or selected under section 10 were to an arbitrator agreed or appointed under section 10 (as modified by sub-paragraph (2)),
(c) section 8(6) has effect as if it provided for the arbitrator to give notice of its intention to enter land or premises, and
(d) section 12(3)(b) has effect as if the reference to the surveyor or surveyors were to the arbitrator.
8 (1) Where, by virtue of paragraph 6, work to which a notice under section 6(5) of the 1996 Act relates is carried out by an adjoining owner, sections 13 and 14 of that Act have effect subject to the following modifications.
(2) Section 13(1) has effect as if it enabled the adjoining owner, within the period of two months beginning with the day of the completion of the work, to serve on the building owner an account in writing showing particulars and expenses of the work.
(3) Section 13(2) has effect as if it enabled the building owner to serve on the adjoining owner a notice objecting to the account served under section 13(1) (as modified by sub-paragraph (2)).
(4) Section 14 has effect as if—
(a) for subsection (1) there were substituted—
(1) All expenses to be defrayed by a building owner in accordance with an account served under section 13 shall be paid by the building owner.
,and
(b) subsection (2) were omitted.
Section 29
Works in or near highways
1 (1) Section 141 of the Highways Act 1980 (restriction on planting trees or shrubs in or near carriageway) does not apply to any tree or shrub planted for the purposes of or in connection with the exercise of the powers conferred by this Act.
(2) Section 167 of that Act (powers relating to retaining walls near streets) does not apply to any length of a retaining wall erected on land held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(3) Section 169(1) of that Act (control of scaffolding on highways) does not apply to anything erected, placed or retained in, upon or over a highway for the purposes of or in connection with the exercise of the powers conferred by this Act.
(4) The provisions of this paragraph apply in relation to a highway for which the Secretary of State or a strategic highways company is the highway authority only if the Secretary of State or the strategic highways company consents (and consent may be subject to conditions).
Street works
2 (1) The powers conferred by section 56(1) and (1A) of the New Roads and Street Works Act 1991 (powers to give directions as to the timing of proposed and subsisting street works) do not apply in relation to works proposed to be, or being, carried out under the powers conferred by this Act.
(2) Section 56A of that Act (power to give directions as to placing of apparatus) does not apply in relation to the placing of apparatus in exercise of the powers conferred by this Act.
(3) No restriction under section 58(1) of that Act (power to impose restriction on execution of street works following completion of substantial road works) has effect in relation to works carried out under the powers conferred by this Act.
(4) Section 61(1) of that Act (under which the consent of the street authority is required for the placing of apparatus in a protected street) does not apply to the placing of apparatus in exercise of the powers conferred by this Act.
(5) Section 62(2) of that Act (power following designation of protected street to require removal or repositioning of apparatus already placed in the street) does not apply in relation to apparatus placed in exercise of the powers conferred by this Act.
(6) Section 62(4) of that Act (power, when designation as protected street commences or ceases, to give directions with respect to works in progress) does not apply in relation to works being carried out under the powers conferred by this Act.
(7) Section 63(1) of that Act (under which Schedule 4 to that Act has effect for requiring the settlement of a plan and section of street works to be executed in a street designated by the street authority as having special engineering difficulties) does not apply in relation to works to be executed under the powers conferred by this Act.
(8) The power conferred by section 73A(1) of that Act (power to require undertaker to re-surface street) may not be exercised in relation to an undertaker who is within subsection (2) of that section because of—
(a) having given a notice in respect of works proposed to be carried out under the powers conferred by this Act, or
(b) executing, or having executed, works under those powers.
(9) Nothing in section 74A of that Act (power to make regulations requiring payment of charges for street works), or in regulations made under it, applies in relation to the execution of works under the powers conferred by this Act.
(10) No contribution is payable under section 78A(1)(b) of that Act (contributions by other undertakers to costs incurred in executing works specified in a re-surfacing notice) because of the execution of works under the powers conferred by this Act.
(11) Schedule 3A to that Act (restriction on works following substantial street works) does not apply where a notice under section 54 (advance notice of certain works) or section 55 (notice of starting date of works) of that Act is in respect of works to be executed under the powers conferred by this Act.
(12) No notice under paragraph 2(1)(d) of that Schedule (power by notice to require notification of works which an undertaker proposes to carry out in a part of a highway to which a proposed restriction applies) has effect to require the notification of works proposed to be carried out under the powers conferred by this Act.
(13) No directions under paragraph 3 of that Schedule (directions as to the date on which undertakers may begin to execute proposed works) may be issued to the nominated undertaker.
(14) Paragraph 3(4) of that Schedule (under which it is an offence for an undertaker to execute street works before the completion of certain other street works) does not apply in relation to the execution of works under the powers conferred by this Act.
(15) Paragraph 5(1) of that Schedule (effect of direction under paragraph 4 restricting further works) does not apply in relation to the execution of works under the powers conferred by this Act.
(16) The provisions of this paragraph apply in relation to a street for which the Secretary of State or a strategic highways company is the street authority only if the Secretary of State or the strategic highways company consents (and consent may be subject to conditions).
Permit schemes
3 (1) Nothing in Part 3 of the Traffic Management Act 2004 (permit schemes), or in any permit scheme or permit regulations under that Part, applies in relation to the carrying out of works under the powers conferred by this Act.
(2) Where a permit scheme under Part 3 of the 2004 Act is in respect of a street for which the Secretary of State or a strategic highways company is the highway authority, sub-paragraph (1) applies in relation to the scheme only if the highway authority in respect of the street consents (and consent may be subject to conditions).
Section 30
Lorry ban orders
1 (1) In this Schedule, “lorry ban order” means an order made at any time under section 1, 9 or 14 of the Road Traffic Regulation Act 1984 which to any extent imposes—
(a) a prohibition or restriction on the use of heavy commercial vehicles, or any class of such vehicles, in an area, zone or place, or on a road, specified in the order, or
(b) a requirement that heavy commercial vehicles, or any class of such vehicles, use a specified through route.
(2) The reference in sub-paragraph (1)(a) to a prohibition or restriction on the use of heavy commercial vehicles on a road does not include a prohibition or restriction on their use on part of the width of a road.
(3) It is immaterial for the purposes of sub-paragraph (1) whether the prohibition, restriction or requirement is subject to exceptions.
(4) This paragraph applies in relation to a lorry ban order made by the Secretary of State or a strategic highways company only if the Secretary of State or the strategic highways company consents (and consent may be subject to conditions).
Required provision in lorry ban orders
2 (1) If a lorry ban order does not contain the required provision, it is to be treated as if it did.
(2) The required provision is provision to the effect that—
(a) a person proposing to use heavy commercial vehicles in connection with authorised works in a way which would otherwise constitute a breach of the prohibition, restriction or requirement referred to in paragraph 1(1) may apply for the issue of a permit in respect of that use, and
(b) the use authorised by such a permit does not constitute a breach of the prohibition, restriction or requirement.
Issue of emergency permits
3 (1) This paragraph applies where a person proposes to undertake a journey before the end of the next complete eight working days, being a journey—
(a) proposed to be undertaken in connection with the carrying out of authorised works, and
(b) for which a permit under a lorry ban order is required if the prohibition, restriction or requirement is not to be breached.
(2) The person may apply for a permit under the lorry ban order for the journey by giving the details mentioned in sub-paragraph (3), by telephone or by electronic means, to the authority responsible for dealing with permits under the order.
(3) The details referred to above are—
(a) the identity of the applicant,
(b) how the applicant may be contacted by telephone or by electronic means,
(c) the registration number of the vehicle to which the application relates,
(d) the authorised works in connection with which the journey is to be undertaken,
(e) whether any approved arrangements are relevant to the application and, if so, what they are,
(f) the date when the journey is proposed to be undertaken,
(g) in the case of an order made otherwise than by the Secretary of State or a strategic highways company, whether it is proposed to stop in the area of the traffic authority for delivery or collection purposes and, if so, the place or places and time or times at which it is proposed to do so, and
(h) in the case of an order made by the Secretary of State or a strategic highways company, such details of the place or places and time or times at which it is proposed to stop for delivery or collection purposes as may be set out in conditions attaching to consent given under paragraph 1(4).
4 (1) An authority responsible for dealing with permits under a lorry ban order must make arrangements enabling applications under paragraph 3 to be made at any time.
(2) Once an application for a permit has been made under paragraph 3, then, for the purpose of any relevant journey, the application is to be treated as granted subject to such conditions as the Secretary of State may by order specify.
(3) A journey is a relevant journey for the purposes of sub-paragraph (2) if it is begun before the authority to which the application is made has communicated its decision on the application to the applicant by the means specified by the application under paragraph 3(3)(b).
(4) The power to make an order under sub-paragraph (2) includes—
(a) power to make different provision for different cases, and
(b) power to make an order varying or revoking any order previously made under that provision.
Grant of applications for permit
5 (1) This paragraph applies where an application for the issue of a permit under a lorry ban order—
(a) is made under paragraph 3, or
(b) is otherwise expressed to be made in connection with the carrying out of authorised works.
(2) The application must be granted if the issue of a permit is reasonably required—
(a) for the purpose of enabling authorised works to be carried out in a timely and efficient manner, or
(b) for the purpose of enabling authorised works to be carried out in accordance with approved arrangements.
(3) If the application is granted, no condition may be imposed which is likely to obstruct the carrying out of authorised works—
(a) in a timely and efficient manner, or
(b) in accordance with approved arrangements.
(4) An applicant aggrieved by a decision under sub-paragraph (2) or (3) may appeal to the Secretary of State by giving notice of the appeal to—
(a) the Secretary of State, and
(b) the authority whose decision is appealed against,
within 28 days of notification of the decision.
(5) On an appeal under sub-paragraph (4), the Secretary of State may allow or dismiss the appeal or vary the decision of the authority whose decision is appealed against.
(6) If, on an appeal under sub-paragraph (4) against a decision under sub-paragraph (3), the Secretary of State varies the decision, the variation has effect from and including the date on which the appeal was instituted or such later date as the Secretary of State may specify.
(7) The applicant may not challenge a decision under sub-paragraph (3) otherwise than by an appeal under sub-paragraph (4).
Supplementary interpretation
6 (1) In this Schedule—
“approved arrangements” means arrangements approved for the purposes of paragraph 6 of Schedule 17;
“authorised works” means works authorised by this Act;
“electronic means” includes email and the internet;
“heavy commercial vehicle” has the same meaning as in the Road Traffic Regulation Act 1984 (see section 138 of that Act);
“traffic authority” has the same meaning as in the Road Traffic Regulation Act 1984 (see section 121A of that Act);
“working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.
(2) In this Schedule, references to the issuing of a permit include the giving of any consent.
Section 31
Control of noise on construction sites
1 (1) In the Control of Pollution Act 1974, sections 60 (control of noise on construction sites) and 61 (prior consent for work on construction sites) each have effect, in relation to works carried out in exercise of the powers conferred by this Act, as if—
(a) in subsection (7) (appeal against notice or against failure to give consent or the giving of qualified consent), for “a magistrates' court” there were substituted “ the Secretary of State ”, and
(b) after that subsection there were inserted—
(7A) If within seven days of the giving of notice of appeal under subsection (7) of this section the appellant and the local authority so agree, the appeal shall, instead of being determined by the Secretary of State, be referred to arbitration.
(2) The Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly may, in relation to appeals which (by virtue of sub-paragraph (1)) are referred to arbitration under section 60(7A) or 61(7A) of the Control of Pollution Act 1974, by regulations make any such provision as may be made by regulations under section 70 of that Act in relation to appeals under Part 3 of that Act to the Secretary of State.
(3) Regulations under sub-paragraph (2) must be made by statutory instrument; and a statutory instrument containing such regulations is subject to annulment in pursuance of a resolution of either House of Parliament.
Defences to proceedings relating to statutory nuisance
2 In proceedings for an offence under section 80(4) of the Environmental Protection Act 1990 (offence of contravening abatement notice) in respect of a statutory nuisance falling within section 79(1)(g) or (ga) of that Act where the offence consists in contravening requirements imposed by virtue of section 80(1)(a) or (b) of that Act, it is a defence to show that the nuisance—
(a) is a consequence of—
(i) the construction, use or maintenance of the works authorised by this Act, or
(ii) the operation of Phase 2a of High Speed 2, and
(b) cannot reasonably be avoided.
3 (1) Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990 (summary proceedings by person aggrieved by statutory nuisance) in relation to—
(a) a statutory nuisance falling within section 79(1)(g) of that Act (noise emitted from premises), or
(b) a statutory nuisance falling within section 79(1)(ga) of that Act (noise emitted by vehicle, machinery or equipment in a street),
no order may be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows that sub-paragraph (2) or (3) applies.
(2) This sub-paragraph applies if the nuisance—
(a) relates to premises or, as the case may be, to a vehicle, machinery or equipment, used by the nominated undertaker for the purposes of or in connection with the exercise of the powers conferred by this Act with respect to works, and
(b) is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60, or a consent given under section 61 of the Control of Pollution Act 1974.
(3) This sub-paragraph applies if the nuisance—
(a) is a consequence of—
(i) the construction, use or maintenance of the works authorised by this Act, or
(ii) the operation of Phase 2a of High Speed 2, and
(b) cannot reasonably be avoided.
4 Section 61(9) of the Control of Pollution Act 1974 (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) does not apply where the consent relates to the use of premises or, as the case may be, of a vehicle, machinery or equipment by the nominated undertaker for the purposes of or in connection with the exercise of the powers conferred by this Act with respect to works.
Section 32
Cheshire County Council Act 1968 (c. xxxvi)
1 Section 12 of the Cheshire County Council Act 1968 (prohibition of parking of heavy commercial vehicles) does not apply to the use of any parking place by a heavy commercial vehicle (within the meaning of that section) which is reasonably necessary—
(a) for the purposes of, or in connection with, the exercise of the powers conferred by this Act with respect to works, or
(b) for the purposes of the nominated undertaker's undertaking under this Act.
Cheshire County Council Act 1980 (c. xiii)
2 (1) Section 12 of the Cheshire County Council Act 1980 (plans for new streets) does not apply to any work carried out in exercise of the powers conferred by this Act.
(2) Part 8 of that Act (storage of flammable materials) does not apply in relation to a stack on land held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(3) Section 50 of that Act (building plans: access for fire brigade) does not apply to plans relating to a building held, or to be held, by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(4) Section 57 of that Act (prescription of signs to be used on certain buildings) does not apply in relation to a building held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
Staffordshire Act 1983 (c. xviii)
3 (1) Section 7 of the Staffordshire Act 1983 (plans for new streets) does not apply to any work carried out in exercise of the powers conferred by this Act.
(2) Where—
(a) a local authority (within the meaning of that Act) proposes to exercise the power conferred by section 9(1) of that Act (provision of parking places in parks, etc), and
(b) the power is proposed to be exercised in relation to an area of park, pleasure ground or open space which is situated over or within a distance of 15 metres (measured in any direction) from any railway forming part of Phase 2a of High Speed 2,
section 9(5) of that Act has effect as if it also required the local authority to consult the nominated undertaker.
(3) Section 10(1)(b) of that Act (ornamental or mown land) does not apply to the use of a vehicle which is reasonably necessary—
(a) for the purposes of, or in connection with, the exercise of the powers conferred by this Act with respect to works, or
(b) for the purposes of the nominated undertaker's undertaking under this Act.
(4) Section 12 of that Act (dust) does not apply to building operations carried out in exercise of the powers conferred by this Act.
(5) Section 16 of that Act (powers of entry for Prevention of Damage by Pests Act 1949) does not apply in relation to any land held by the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(6) Section 26 of that Act (building plans: access for fire brigade) does not apply to plans relating to a building held, or to be held, by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(7) Part 7 of that Act (storage of flammable materials) does not apply in relation to a stack on land held by the Secretary of State or the nominated undertaker and used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act.
(8) Where—
(a) the county council proposes to make an order under section 40(1) of that Act (power to stop up highways), and
(b) the highway is part of a route identified in a deposited statement as a construction traffic route,
section 40(1) of that Act has effect as if it also required the council to give notice to the nominated undertaker.
SCHEDULE 28 Application of other railway legislation etc
Section 37
Highway (Railway Crossings) Act 1839 (c. 45)
1 The Highway (Railway Crossings) Act 1839 does not apply to a railway authorised by this Act.
Railway Regulation Act 1840 (c. 97)
2 (1) In its application to Phase 2a of High Speed 2, or a train all or part of whose journey is on Phase 2a of High Speed 2, section 16 of the Railway Regulation Act 1840 (obstruction of officers of railway company or trespass upon railway) has effect as if—
(a) the maximum fine which may be imposed on summary conviction of the offence for which it provides were level 3 on the standard scale (instead of level 1), and
(b) the court had, as an alternative to imposing a fine, the power to award imprisonment for a period not exceeding 51 weeks (in the case of an offence committed in England and Wales) or 12 months (in the case of an offence committed in Scotland).
(2) In relation to an offence committed in England and Wales before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in sub-paragraph (1)(b) to 51 weeks is to be read as a reference to one month.
Railway Regulation Act 1842 (c. 55)
3 Section 9 of the Railway Regulation Act 1842 does not apply to a railway authorised by this Act.
Railways Clauses Consolidation Act 1845 (c. 20)
4 (1) The following provisions only of the Railways Clauses Consolidation Act 1845 are incorporated with this Act, in so far as they are applicable for the purposes of this Act and not inconsistent with its provisions—
sections 2 to 4, 6, 16, 18, 21, 24, 30, 31, 37 and 38 (so far as relating to section 31), 46, 67 to 70, 73, 86, 97, 103, 105, 140, 142, 144, 145 and 162 to 164.
(2) In their application by virtue of sub-paragraph (1)—
(a) section 2 has effect with the substitution for “so incorporated as aforesaid” of “incorporated”;
(b) section 6 has effect with the omission of “and to take lands for that purpose”, “taken or” and “for the value of the lands so taken or used, and”;
(c) sections 18 and 21 do not apply in any case where the relations between the nominated undertaker and any other person are regulated by sections 84 and 85 of the New Roads and Street Works Act 1991 or Part 2 of Schedule 32 (protective provisions relating to utility undertakers);
(d) section 46 has effect with the omission of the words from “of the height” to “in that behalf provided”;
(e) section 68 has effect with the omission of the words from “Such and” to “formation thereof” and from “together with all necessary gates” to “all necessary stiles”.
Regulation of Railways Act 1889 (c. 57)
5 In its application to Phase 2a of High Speed 2, or a train all or part of whose journey is on Phase 2a of High Speed 2, section 5 of the Regulation of Railways Act 1889 has effect as follows—
(a) section 5(1) (failure to produce ticket, pay fare or give name and address) has effect as if the maximum fine which may be imposed on summary conviction of the offence for which it provides were level 2 on the standard scale (instead of level 1);
(b) section 5(2) (power to arrest passenger who fails to produce ticket and refuses to give name and address) has effect as if after “refuses” there were inserted “ or fails ”;
(c) section 5(3) (travel with intent to avoid payment of fare) has effect as if the maximum fine which may be imposed on summary conviction of the offence for which it provides were level 3 on the standard scale (instead of level 2).
British Transport Commission Act 1949 (c xxix)
6 (1) Section 55 of the British Transport Commission Act 1949 (penalty for trespass on railways etc) also applies in relation to any railway, siding, tunnel, railway embankment, cutting or similar work constructed in exercise of the powers conferred by this Act.
(2) Section 56 of that Act (penalty for stone throwing etc on railways) also applies in relation to any railway or siding constructed in exercise of the powers conferred by this Act.
Section 38
Directions as to results to be achieved
1 (1) This paragraph applies where a difference is referred under section 38(3) to arbitration.
(2) The parties must notify the Secretary of State of the referral without delay after the commencement of the arbitral proceedings.
(3) The Secretary of State may, on request or otherwise, direct the arbitrator as to results that are to be achieved by the agreement for which terms are to be determined by the arbitration.
(4) A direction under this paragraph may be made even though the making of the direction affects the outcome of proceedings to which the Secretary of State, or a body in which the Secretary of State has an interest, is a party.
(5) A request for a direction under this paragraph may be made by the arbitrator (as well as by a party).
(6) For the purpose of determining whether or not the arbitrator has to comply with a direction under this paragraph, the rule is that the arbitrator must comply with the direction in determining terms of the agreement if the direction—
(a) is relevant to the determination of those terms, and
(b) is given to the arbitrator before the award determining those terms is made.
(7) For the purpose of determining what the arbitrator has to do to comply with a direction under this paragraph, the rule is that the arbitrator must carry out the function of determining terms of the agreement so as to secure, so far as is reasonably practicable, that the results concerned are achieved by the agreement.
Directions as to consolidation and grouping of proceedings
2 (1) The Secretary of State may, on request or otherwise, direct—
(a) that a group of proceedings is to be consolidated, or
(b) that concurrent hearings are to be held in a group of proceedings.
(2) In sub-paragraph (1) “group of proceedings” means a group consisting of—
(a) section 38(3) proceedings, and
(b) any one or more of the following—
(i) other section 38(3) proceedings,
(ii) arbitral proceedings related to the proceedings mentioned in paragraph (a), and
(iii) arbitral proceedings related to section 38(3) proceedings that are to be consolidated with the proceedings mentioned in paragraph (a).
(3) A request for a direction under this paragraph may be made by the arbitrator or any of the arbitrators (as well as by a party).
(4) A direction under this paragraph must specify the terms on which the proceedings are to be consolidated or on which concurrent hearings are to be held.
(5) Where a direction under this paragraph provides for the consolidation of proceedings that do not all have the same arbitrator, the terms that may be specified in the direction include (in particular)—
(a) terms specifying the person who is to be the arbitrator in the consolidated proceedings;
(b) terms under which that person is to be determined.
(6) For the purposes of this paragraph—
(a) “section 38(3) proceedings” means proceedings on arbitration of a difference referred under section 38(3), and
(b) arbitral proceedings are “related” to section 38(3) proceedings if—
(i) the arbitral proceedings are not section 38(3) proceedings,
(ii) at least one of the parties to the arbitral proceedings is also a party to the section 38(3) proceedings, and
(iii) the Secretary of State considers that the subject-matter of the arbitral proceedings is connected with the subject-matter of the section 38(3) proceedings.
Section 40
Traffic authority to consult Secretary of State before making traffic regulation order
1 (1) This paragraph applies where—
(a) the traffic authority for a relevant road is a person other than the Secretary of State,
(b) the authority proposes to make a traffic regulation order in relation to the road, and
(c) it appears to the authority that provision made by the order could significantly interfere with the use of the road by heavy commercial vehicles for the purposes of the construction of the works authorised by this Act.
(2) Before making the order, the authority must consult the Secretary of State (in addition to any other person the authority is required to consult under or by virtue of Part 3 of Schedule 9 to RTRA 1984).
(3) In this paragraph—
“heavy commercial vehicle” has the same meaning as in RTRA 1984 (see section 138 of that Act);
“relevant road” means a road, other than a special road or trunk road, which falls within one or more of the following paragraphs—
a road which is part of a route identified in a deposited statement as a construction traffic route;
a road which is part of a route in relation to which approval has been given under paragraph 6 of Schedule 17 (routes for transportation by large goods vehicles);
where a request for approval under paragraph 6 of Schedule 17 has been made but not determined, a road which is part of a route to which the request for approval relates;
a road any part of which is within the Act limits.
(4) For the purposes of the definition of “relevant road”, “special road” and “trunk road” have the same meaning as in the Highways Act 1980.
2 (1) The Secretary of State may by notice designate—
(a) a road, or part of a road, in relation to which paragraph 1(2) does not apply;
(b) a description of traffic regulation orders in relation to which paragraph 1(2) does not apply.
(2) A notice under sub-paragraph (1)(a) has effect until further notice.
(3) The Secretary of State must give a notice under sub-paragraph (1)(a) to the traffic authority for the road (or part of the road) to which the notice relates.
(4) A notice under sub-paragraph (1)(b) may have effect generally or in relation to areas specified in the notice.
(5) The Secretary of State must give a notice under sub-paragraph (1)(b) to every traffic authority which would be affected by the notice.
(6) Failure by a traffic authority to comply with paragraph 1(2) in relation to a traffic regulation order does not affect the validity of the order.
3 (1) Paragraph 1(2) ceases to apply in relation to a traffic authority if the Secretary of State gives the authority a notice stating that—
(a) no further works are proposed to be constructed under this Act in the authority's area, and
(b) the use of relevant roads in the authority's area is no longer required by heavy commercial vehicles for the purposes of the construction of the works authorised by this Act.
(2) Paragraph 1(2) ceases to apply in relation to a particular part of the area of a traffic authority (“the relevant part”) if—
(a) the Secretary of State reasonably considers that the relevant part can be treated separately from the rest of the authority's area for the purposes of paragraph 1(2), and
(b) the Secretary of State gives the authority a notice stating that—
(i) no further works are proposed to be constructed under this Act in the relevant part, and
(ii) the use of relevant roads in the relevant part is no longer required by heavy commercial vehicles for the purposes of the construction of the works authorised by this Act.
(3) The Secretary of State must give a traffic authority a notice under sub-paragraph (1) or (2) as soon as reasonably practicable after the Secretary of State forms the view that the applicable requirements are met.
(4) For the purposes of sub-paragraph (3), the applicable requirements are met—
(a) in a sub-paragraph (1) case, if sub-paragraph (1)(a) and (b) apply in relation to the authority's area, and
(b) in a sub-paragraph (2) case, if sub-paragraph (2)(b)(i) and (ii) apply in relation to the relevant part.
(5) In this paragraph, “heavy commercial vehicle” and “relevant road” have the same meaning as in paragraph 1.
Power of Secretary of State to direct traffic authority to make traffic regulation order
4 (1) The Secretary of State may give a direction to a traffic authority requiring the authority to make a traffic regulation order if the Secretary of State considers that the making of such an order is—
(a) necessary for the purposes of the timely, efficient and cost-effective construction of the works authorised by this Act, and
(b) reasonable in the circumstances.
(2) Paragraph 1(2) does not apply (if it otherwise would) to the making of a traffic regulation order in pursuance of a direction under this paragraph.
(3) Where a traffic authority makes a traffic regulation order in pursuance of a direction under this paragraph (a “relevant order”), the authority may not without the Secretary of State's consent make a further traffic regulation order which contains—
(a) provision varying or revoking the relevant order, or
(b) provision as respects any length of road for any purpose where—
(i) an order has been made as respects that length of road for a similar purpose, and
(ii) that order has been varied or revoked by the relevant order.
(4) The power to give a direction under this paragraph includes power to vary or revoke a previous direction given under this paragraph.
5 (1) This paragraph applies where, in pursuance of a direction under paragraph 4, a traffic authority is required to make an order under section 1 or 9 of RTRA 1984.
(2) The order is to be treated for the purposes of Part 3 and paragraph 28 of Schedule 9 to RTRA 1984, and regulations made under Part 3 of that Schedule, as if it were required to be made in pursuance of a direction under paragraph 2 of that Schedule.
(3) The provisions mentioned in sub-paragraph (2) have effect accordingly, but as if—
(a) paragraph 26(1) of Schedule 9 to RTRA 1984 (which requires the Secretary of State to take account of objections) were omitted,
(b) for the purposes of the application of paragraph 28 of Schedule 9 to RTRA 1984 (provision about the variation or revocation of certain orders)—
(i) the reference in that paragraph to Part 2 of that Schedule included a reference to paragraph 4(3) of this Schedule, and
(ii) any reference in that Part to paragraph 13(1)(e) and (f) of that Schedule were read instead as a reference to paragraph 4(3) of this Schedule, and
(c) any provision in regulations made under Part 3 of Schedule 9 to RTRA 1984 relating to the holding of a public inquiry were omitted.
(4) Paragraph 35 of Schedule 9 to RTRA 1984 (provision for questioning validity of orders) has effect, in its application to the order, as if—
(a) the reference in sub-paragraph (a) to the relevant powers were to those powers as they apply in the case of an order made in pursuance of a direction under paragraph 4 above, and
(b) the reference in sub-paragraph (b) to the relevant requirements were to those requirements as modified by sub-paragraph (3) above.
6 (1) This paragraph applies where, in pursuance of a direction under paragraph 4, a traffic authority is required to make an order under section 14 of RTRA 1984.
(2) Section 15 of RTRA 1984 (duration of orders under section 14) does not apply to the order.
(3) The order has effect for the period specified or described in the direction.
(4) The period specified or described by virtue of sub-paragraph (3) must be such as the Secretary of State considers is reasonable for the purposes of the construction of the works authorised by this Act.
Further powers of Secretary of State (including in relation to variation or revocation of orders)
7 (1) The Secretary of State may direct a traffic authority to revoke a traffic regulation order made by the authority in pursuance of a direction under paragraph 4.
(2) The Secretary of State may direct a traffic authority to vary a traffic regulation order made by the authority in pursuance of a direction under paragraph 4, where—
(a) the Secretary of State considers that the variation is—
(i) necessary for the purposes of the timely, efficient and cost-effective construction of the works authorised by this Act, and
(ii) reasonable in the circumstances, or
(b) the effect of the variation is to remove or relax a restriction imposed by the order on the use of any road.
8 (1) Where a traffic authority fails to comply with a direction under paragraph 4, the Secretary of State may make the traffic regulation order required by the direction.
(2) Where a traffic authority fails to comply with a direction under paragraph 7, the Secretary of State may by order vary or revoke the traffic regulation order (as required by the direction).
9 (1) The Secretary of State may by order made by statutory instrument vary or revoke a traffic regulation order (whenever made) if the Secretary of State considers the variation or revocation—
(a) necessary for the purposes of the timely, efficient and cost-effective construction of the works authorised by this Act, and
(b) reasonable in the circumstances.
(2) This paragraph has effect without prejudice to the powers conferred on the Secretary of State by paragraphs 7 and 8.
10 (1) This paragraph applies to an order under paragraph 8 or 9.
(2) Paragraph 4 of Schedule 9 to RTRA 1984 (reserve powers of Secretary of State, including power to recover expenses) applies to the order as it applies to an order made by virtue of paragraph 3 of that Schedule.
(3) Parts 3 and 4 of Schedule 9 to RTRA 1984, and regulations made under paragraph 24 of that Schedule, apply to the order as they apply to an order made by virtue of the relevant paragraph of that Schedule, but as if—
(a) any provision in the regulations relating to the holding of a public inquiry were omitted, and
(b) for the purposes of the application of paragraph 28 of that Schedule (provision about the variation or revocation of certain orders)—
(i) the reference in that paragraph to Part 2 of that Schedule included a reference to paragraph 10(5) of this Schedule, and
(ii) any reference in that Part to paragraph 13(1)(e) and (f) of that Schedule were read instead as a reference to paragraph 10(5) of this Schedule.
(4) For the purposes of sub-paragraph (3), “the relevant paragraph” of Schedule 9 to RTRA 1984 is—
(a) in the case of an order under paragraph 8 of this Schedule, paragraph 3 of that Schedule, and
(b) in the case of an order under paragraph 9 of this Schedule, paragraph 7 of that Schedule.
(5) Where the Secretary of State makes an order to which this paragraph applies, the relevant authority may not without the Secretary of State's consent make a further traffic regulation order which contains—
(a) provision varying or revoking the Secretary of State's order, or
(b) provision as respects any length of road for any purpose where—
(i) an order has been made as respects that length of road for a similar purpose, and
(ii) that order has been varied or revoked by the Secretary of State's order.
(6) Paragraph 16 of Schedule 9 to RTRA 1984 (powers of Secretary of State where an order is submitted for consent) applies for the purposes of sub-paragraph (5) as if the further traffic regulation order had been submitted for consent under Part 2 of that Schedule.
Power to restrict traffic authority from making or implementing traffic regulation order
11 (1) The Secretary of State may give a direction to a traffic authority prohibiting the authority from making or bringing into operation a traffic regulation order (whenever made) if the Secretary of State considers that such an order could significantly interfere with the use of any road for the purposes of the construction of the works authorised by this Act.
(2) A prohibition imposed by virtue of this paragraph may be expressed—
(a) so as to have effect generally or for a period specified in the direction;
(b) so as to prohibit the making or bringing into operation of a traffic regulation order without the Secretary of State's consent.
(3) The power to give a direction under this paragraph includes power to vary or revoke a previous direction given under this paragraph.
Consultation requirements applicable to Secretary of State
12 (1) The Secretary of State must consult a traffic authority—
(a) before giving a direction to the authority under paragraph 4, 7 or 11, or
(b) before making an order under paragraph 8(2) or 9 in relation to a traffic regulation order made by the authority.
(2) The purpose of consultation is—
(a) to ensure public safety and, so far as reasonably practicable, to reduce public inconvenience, and
(b) to take account of the requirements (however expressed) to which the traffic authority is subject under an enactment or under an agreement or undertaking entered into in pursuance of an enactment.
Guidance
13 (1) The Secretary of State must prepare a statement setting out, in general terms—
(a) guidance in connection with the duty under paragraph 1(2) (which requires a traffic authority to consult the Secretary of State before making a traffic regulation order), and
(b) how the Secretary of State proposes to exercise the powers conferred on the Secretary of State by the preceding provisions of this Schedule.
(2) The Secretary of State may from time to time revise the statement.
(3) In preparing or revising the statement, the Secretary of State must consult—
(a) the nominated undertaker, and
(b) those traffic authorities which the Secretary of State considers are likely to be subject to the duty under paragraph 1(2) or to be affected by the exercise of the powers mentioned in sub-paragraph (1)(b) (or both).
Removal of vehicles
14 (1) An authorised person may remove a vehicle, or arrange for its removal, where conditions 1 and 2 are met.
(2) Condition 1 is that the vehicle has been permitted to remain at rest, or has broken down and remained at rest—
(a) on any road in contravention of a prohibition or restriction imposed by a traffic regulation order, or
(b) on any road which is stopped up under paragraph 2 or 8 of Schedule 4.
(3) Condition 2 is that it appears to the authorised person that the vehicle is likely, if it is not removed—
(a) to obstruct the carrying out of any of the works authorised by this Act, or
(b) to be at risk of being damaged in consequence of the doing of anything for the purposes of the construction of the works authorised by this Act.
(4) References in sub-paragraphs (1) and (3) to the removal of a vehicle are to its removal to another position on the road in question or to another road.
(5) Before exercising the power under sub-paragraph (1), an authorised person must give notice to—
(a) the local authority (as defined by section 100(5) of RTRA 1984) in whose area the vehicle is situated, and
(b) the chief officer of the police force in whose area the vehicle is situated.
(6) A person removing a vehicle under or by virtue of sub-paragraph (1) may do so—
(a) by towing or driving the vehicle, or
(b) in such other manner as the person thinks necessary,
and may take such measures in relation to the vehicle as the person thinks necessary to enable its removal.
(7) This paragraph is without prejudice to provision made by regulations under section 99 of RTRA 1984.
(8) In this paragraph—
“authorised person” means a person authorised by the nominated undertaker for the purposes of this paragraph;
“vehicle” has the same meaning as in section 99 of RTRA 1984.
Interpretation
15 In this Schedule—
“road” has the same meaning as in RTRA 1984 (see section 142(1) of that Act);
“RTRA 1984” means the Road Traffic Regulation Act 1984;
“traffic authority” has the same meaning as in RTRA 1984 (see section 121A of that Act);
“traffic regulation order” means an order under section 1, 9 or 14 of RTRA 1984.
SCHEDULE 31 Extension of planning permission for statutory undertakers
Section 42
Case where planning permission extended
1 (1) Article 3(10) of the General Permitted Development Order (which excepts development requiring an environmental assessment from the general planning permission granted by that Order) does not apply to development which—
(a) falls within a class of development described as permitted development in a provision of Schedule 2 to that Order that is listed in sub-paragraph (2), and
(b) is covered by an environmental assessment in connection with the High Speed Rail (West Midlands - Crewe) Bill.
(2) The provisions of Schedule 2 to the General Permitted Development Order that are referred to in sub-paragraph (1)(a) are—
in Part 8, classes A, B, C and D;
in Part 9, class C;
in Part 13, classes A, B and D;
Part 15;
in Part 16, classes A, B, C and E.
(3) References in sub-paragraph (2) to particular provisions of the General Permitted Development Order include references to the corresponding provisions of any instrument replacing that Order.
(4) In this paragraph, “the General Permitted Development Order” means the Town and Country Planning (General Permitted Development) (England) Order 2015 (S.I. 2015/596).
Condition of extended planning permission
2 (1) Planning permission granted by virtue of paragraph 1 is subject to the condition that development is carried out in accordance with such requirements as the Secretary of State may by notice to the developer specify for the purpose of—
(a) avoiding a breach of an undertaking given by the Secretary of State to the Select Committee of either House of Parliament to which the High Speed Rail (West Midlands - Crewe) Bill was committed, or
(b) securing that the environmental effects of carrying out the development are not materially different from those envisaged by the statement by virtue of which paragraph 1(1)(b) applies.
(2) The power conferred by sub-paragraph (1) is exercisable after, as well as before, development is commenced.
(3) The power conferred by sub-paragraph (1) includes power, exercisable in the same manner, to vary or revoke a notice under that sub-paragraph.
(4) The condition imposed by sub-paragraph (1) is in addition to any condition to which the planning permission may be subject apart from this paragraph.
Controls on proposed development
3 (1) Where—
(a) it appears to the Secretary of State that a person is proposing to carry out development of a kind mentioned in paragraph 1(1)(a), and
(b) the Secretary of State is of the opinion that the proposed development is not covered by an environmental assessment in connection with the High Speed Rail (West Midlands - Crewe) Bill,
the Secretary of State may give notice of that opinion to the proposed developer.
(2) The power conferred by sub-paragraph (1) includes power, exercisable in the same manner, to withdraw a notice under that sub-paragraph.
(3) Where a notice under sub-paragraph (1) has been given (and not withdrawn), paragraph 1 is to be treated as not applying to the carrying out of the development by the proposed developer.
4 (1) Where it appears to the Secretary of State that—
(a) a person is proposing to carry out development of a kind mentioned in paragraph 1(1)(a),
(b) the development is covered by an environmental assessment in connection with the High Speed Rail (West Midlands - Crewe) Bill, and
(c) it is necessary or desirable to do so for the purpose of avoiding a breach of an undertaking given by the Secretary of State to the Select Committee of either House of Parliament to which that Bill was committed,
the Secretary of State may by notice to the proposed developer disapply paragraph 1(1) in relation to the carrying out of the development by that person.
(2) The power conferred by sub-paragraph (1) includes power, exercisable in the same manner, to revoke a notice under that sub-paragraph.
Notices
5 (1) A notice under this Schedule must—
(a) specify the person to whom it is given,
(b) specify the development to which it relates,
(c) explain the reasons for it, and
(d) in the case of a notice under paragraph 3, explain its effect.
(2) The Secretary of State must, when giving a notice under this Schedule, give a copy to the unitary authority or, in a non-unitary area, the district council in whose area the development is or is to be carried out.
Section 43
PART 1 Highways and traffic
1 (1) The following provisions of this Part have effect, unless otherwise agreed in writing between the nominated undertaker and the highway authority concerned.
(2) In this Part—
“plans” includes sections and specifications;
“property of the highway authority” means any apparatus of the highway authority affixed to or placed under any highway.
(3) Part 3 of the New Roads and Street Works Act 1991 does not apply in relation to any matter which is regulated by this Part.
2 Wherever in this Part provision is made with respect to the approval or consent of the highway authority, that approval or consent must be in writing and subject to such reasonable terms and conditions as the highway authority may require, but must not be unreasonably withheld.
3 In exercising the powers conferred by this Act in relation to any highway the nominated undertaker must—
(a) have regard to the potential disruption of traffic which may be caused, and
(b) seek to minimise such disruption so far as is reasonably practicable.
4 (1) This paragraph applies to the construction of any tunnel, subway or other structure authorised by this Act under and within 8 metres of the surface of any highway which comprises a carriageway.
(2) The nominated undertaker must not, without the consent of the highway authority, carry out works to which this paragraph applies except in accordance with plans submitted to, and approved by, the highway authority.
(3) If, within 28 days after such plans have been submitted, the highway authority has not approved or disapproved them, it is deemed to have approved the plans as submitted.
(4) This paragraph does not apply to street works within the meaning of Part 3 of the New Roads and Street Works Act 1991.
5 In the construction of any part of the works to which paragraph 4 applies under a highway no part of it may, except with the consent of the highway authority, be so constructed as to—
(a) interfere with the provision of proper means of drainage of the surface of the highway, or
(b) be nearer than two metres to the surface of the highway.
6 (1) The provisions of this paragraph have effect in relation to, and in relation to the construction of, any new bridge, or any extension or alteration of an existing bridge, which carries—
(a) any part of the works authorised by this Act over a highway, or
(b) a highway over any part of those works.
Any such new bridge, or (as the case may be) any bridge so extended or altered, is referred to in this paragraph as “the bridge”.
(2) Before commencing the construction of, or the carrying out of any work in connection with, the bridge which involves interference with a highway, the nominated undertaker must submit to the highway authority for its approval plans, drawings and particulars (in this paragraph referred to as “plans”) relating to the work, and the bridge must not be constructed and the works must not be carried out except in accordance with the plans submitted to, and approved by, the highway authority.
(3) If, within 28 days after the plans have been submitted, the highway authority has not approved or disapproved them, it is to be deemed to have approved the plans as submitted.
(4) If the bridge carries any part of the works authorised by this Act over any highway—
(a) it must be constructed in such manner as to prevent so far as may be reasonably practicable the dripping of water from the bridge, and
(b) the highway authority may, at the cost of the nominated undertaker, provide and place such lamps and apparatus as may from time to time be reasonably necessary for efficiently lighting any highway under or in the vicinity of the bridge.
7 The nominated undertaker must—
(a) secure that so much of the works authorised by this Act as is constructed under any highway must be so designed, constructed and maintained as to carry the appropriate loading recommended for highway bridges by the Secretary of State at the time of construction of the works, and
(b) indemnify the highway authority against, and make good to the highway authority, the expenses which the highway authority may reasonably incur in the maintenance or repair of any highway, or any tunnels, sewers, drains or apparatus in the highway, by reason of non-compliance with the provisions of this paragraph.
8 (1) Any officer of the highway authority duly appointed for the purpose may at all reasonable times, on giving to the nominated undertaker such notice as may in the circumstances be reasonable, enter upon and inspect any part of the works authorised by this Act which—
(a) is in, over or under any highway, or
(b) which may affect any highway or any property of the highway authority,
during the carrying out of the works.
(2) The nominated undertaker must give to such officer all reasonable facilities for such inspection and, if the officer is of the opinion that the construction of the work is attended with danger to any highway or to any property of the highway authority on or under any highway, the nominated undertaker must adopt such measures and precautions as may be reasonably practicable for the purpose of preventing any damage or injury to the highway.
9 (1) The nominated undertaker must not alter, disturb or in any way interfere with any property of the highway authority on or under any highway, or the access to that property, without the consent of the highway authority.
(2) Any alteration, diversion, replacement or reconstruction of any such property which may be necessary must be made by the highway authority or the nominated undertaker as the highway authority thinks fit, and the expense reasonably incurred by the highway authority in so doing must be repaid to the highway authority by the nominated undertaker.
(3) If, within 28 days after a request for consent has been submitted, the highway authority has not given or refused such consent, it is to be deemed to have consented to the request as submitted.
10 The nominated undertaker must not remove any soil or material from any highway except so much as is excavated in the carrying out of the works authorised by this Act.
11 (1) If the highway authority, after giving to the nominated undertaker not less than 28 days' notice (or, in case of emergency, such notice as is reasonably practicable) of its intention to do so, incurs any additional expense in consequence of the construction of the works authorised by this Act—
(a) in the signposting of traffic diversions,
(b) in the taking of other measures in relation to those diversions, or
(c) in the repair of any highway by reason of the diversion of traffic from a road of a higher standard,
the nominated undertaker must repay to the highway authority the amount of any such expense reasonably so incurred.
(2) Sub-paragraph (3) applies in respect of an amount which, but for that sub-paragraph, would be payable to the highway authority by virtue of sub-paragraph (1) in respect of the repair of any highway.
(3) If the highway fell or would have fallen due for repair as part of the maintenance programme of the highway authority at any time within 10 years of the repair being carried out by the nominated undertaker, so as to confer on the highway authority financial benefit (whether by securing the completion of overdue maintenance work for which the highway authority is liable or by deferment of the time for such work in the ordinary course), the amount payable to the highway authority must be reduced by the amount which represents that benefit.
12 The nominated undertaker must not, except with the consent of the highway authority—
(a) deposit any soil or material, or store any plant, in or over a highway to which the public continues to have access so as to obstruct or render less safe the use of the highway,
(b) deposit any soils or materials on any such highway outside a hoarding,
(c) erect or retain on or over such a highway any scaffolding or other structure which obstructs the highway unless the structure comprises screening which has been approved under Schedule 17 (planning conditions),
but if within 28 days after request for it any such consent is neither given nor refused it is to be deemed to have been given.
13 The nominated undertaker must, if reasonably so required by the highway authority, provide and maintain to the reasonable satisfaction of the highway authority, during such time as the nominated undertaker may occupy any part of a highway for the purpose of the construction of any part of the works authorised by this Act, temporary bridges and temporary ramps for vehicular or pedestrian traffic over any part of the works or in such other position as may be necessary to prevent undue interference with the flow of traffic in the highway.
14 (1) Where any part of any highway has been broken up or disturbed by the nominated undertaker and not permanently stopped up or diverted, the nominated undertaker must—
(a) make good the subsoil, foundations and surface of that part of the highway to the reasonable satisfaction of the highway authority, and
(b) maintain the same to the reasonable satisfaction of the highway authority for such time as may reasonably be required for the permanent reinstatement of the highway.
(2) The reinstatement of that part of the highway must be carried out by the nominated undertaker to the reasonable satisfaction of the highway authority in accordance with such requirements as to specification of material and standards of workmanship as may be prescribed for equivalent reinstatement work by regulations made under section 71 of the New Roads and Street Works Act 1991.
15 (1) This paragraph applies where damage to any highway or property of the highway authority on or under any highway is caused by, or results from—
(a) the construction of any work authorised by this Act, or
(b) any act or omission of the nominated undertaker, its contractors, agents or employees whilst engaged upon such work.
(2) In the case of damage to a highway, the nominated undertaker may make good such damage to the reasonable satisfaction of the highway authority.
(3) The nominated undertaker must pay compensation to the highway authority—
(a) in a case where the nominated undertaker does not make good such damage to a highway;
(b) in the case of damage to property of the highway authority.
16 The fact that any act or thing may have been done in accordance with plans approved by the highway authority must not (if it was not attributable to the act, neglect or default of the highway authority or of any person in its employ or its contractors or agents) exonerate the nominated undertaker from any liability, or affect any claim for damages, under this Part or otherwise.
17 (1) Any dispute arising between the nominated undertaker and the highway authority under this Part is to be determined by arbitration if—
(a) the parties agree, or
(b) the dispute relates to the amount of any sum payable under this Part,
but must otherwise be determined by a person appointed by the Secretary of State.
(2) Any person appointed by the Secretary of State under sub-paragraph (1) must, in determining any dispute arising under this Part, have regard to such matters as may be specified by the Secretary of State on making the appointment.
PART 2 Electricity, gas, water and sewerage undertakers
18 (1) The following provisions of this Part have effect, unless otherwise agreed in writing between the nominated undertaker, or the Secretary of State as the case may be, and the undertakers concerned.
(2) In this Part—
“alternative apparatus” means alternative apparatus adequate to enable the undertakers to fulfil their functions as effectively as is achievable using the apparatus which the alternative apparatus is to replace;
“apparatus” means—
in the case of electricity undertakers, electric lines or electrical plant (as defined in the Electricity Act 1989) belonging to, or maintained by, such undertakers;
in the case of gas undertakers, mains, pipes or other apparatus belonging to, or maintained by, a gas transporter for the purposes of the conveyance or storage of gas;
in the case of water undertakers—
mains, pipes or other apparatus belonging to, or maintained by, such undertakers for the purposes of water supply; and
any water mains or service pipes (or part of a water main or service pipe) that is the subject of an agreement to adopt made under section 51A of the Water Industry Act 1991;
in the case of sewerage undertakers—
any sewer, drain or works vested in a sewerage undertaker under the Water Industry Act 1991 and includes a sludge main, disposal main (within the meaning of section 219 of that Act) or sewer outfall and any manholes, ventilating shafts, pumps or other accessories forming part of any such sewer, drain or work; and
any sewer which is so vested or is the subject of a notice of intention to adopt given under section 102(4) of that Act or an agreement to adopt made under section 104 of that Act;
and includes any structure in which apparatus is or is to be lodged or which gives or will give access to apparatus;
“construction” includes execution, placing, altering, replacing, relaying and removal and, in its application to works which include or comprise any operation, means the carrying out of that operation;
“functions” includes powers and duties;
“in” in a context referring to apparatus in land includes under, over, across, along or upon land;
“plans” includes sections and method statements;
“removed” and “removal” in a context referring to the removal of apparatus includes the disconnection and abandonment of apparatus where the retention of decommissioned apparatus would not affect the construction and use of the works authorised by this Act;
“service obligations” means any service obligation imposed on the undertakers by or under the enactments authorising them to carry on their respective undertakings;
“undertakers” means any of the following, namely, a licence holder within the meaning of Part 1 of the Electricity Act 1989, a gas transporter within the meaning of Part 1 of the Gas Act 1986, a water undertaker within the meaning of the Water Industry Act 1991, a sewerage undertaker within Part 1 of that Act and any local authority which is a relevant authority for the purposes of section 97 of that Act; and, in relation to any apparatus, means the undertaker to whom it belongs or by whom it is maintained.
(3) Except in paragraphs 26(3) and 27, the provisions of this Part are not to apply to any apparatus in respect of which the relations between the nominated undertaker and the undertakers are regulated by the provisions of Part 3 of the New Roads and Street Works Act 1991.
(4) The exercise of the powers under paragraphs 2 to 6 of Schedule 2 in relation to apparatus to which this Part applies is subject to paragraph 25 of this Part, and paragraphs 28 and 29 of this Part apply instead of section 176 (right to compensation) of the Housing and Planning Act 2016, as applied by paragraph 8(2) of Schedule 2 in relation to the exercise of those powers.
19 (1) The following provisions of this paragraph have effect in any case where the Secretary of State or the nominated undertaker, in exercise of the powers of this Act, acquires any interest in or temporarily occupies any land in which apparatus is placed.
(2) Unless a certificate is issued by the appropriate Ministers under sub-paragraph (3) the apparatus must not be removed under this Part, and any right of the undertakers to maintain, repair, renew, adjust, alter or inspect the apparatus in that land is not to be extinguished until any necessary alternative apparatus has been constructed and is in operation to the reasonable satisfaction of the undertakers.
(3) Where the appropriate Ministers certify in relation to any apparatus that—
(a) failure to remove the apparatus would cause undue delay to the construction of the scheduled works, and
(b) the removal of the apparatus before the provision of alternative apparatus in accordance with this paragraph would not substantially prejudice the ability of the undertakers to meet any relevant service obligations,
that apparatus may be removed (or required by the nominated undertaker to be removed) under this Part before any necessary alternative apparatus has been constructed or is in operation to the reasonable satisfaction of the undertakers.
(4) In this paragraph “appropriate Ministers” means the Secretary of State for Transport acting jointly with either the Secretary of State for Environment, Food and Rural Affairs or the Secretary of State for Energy Security and Net Zero.
20 (1) This paragraph applies where—
(a) the nominated undertaker for the purpose of constructing any work authorised by this Act in, on or under any land, requires the removal of any apparatus placed in that land, and gives the undertakers not less than 28 days' written notice of that requirement, together with a plan of the proposed work, and of the proposed position of the alternative apparatus to be provided or constructed, or
(b) in consequence of the exercise of any of the powers of this Act, the undertakers reasonably require to remove any apparatus.
(2) Where it is reasonably practicable to do so, the nominated undertaker or the Secretary of State must afford the undertakers the requisite facilities and rights for the construction of any necessary alternative apparatus in other land which is available for the purpose and which is held or used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act or held by the Secretary of State, or in which either of them has sufficient rights or interests and subsequently for the maintenance, repair, renewal and inspection of such apparatus.
(3) Sub-paragraph (4) applies where facilities and rights required for the construction of apparatus under sub-paragraph (2) are to be afforded elsewhere than in such other land and neither the nominated undertaker nor the Secretary of State is able to afford such facilities and rights.
(4) The undertakers must, on receipt of a written notice from the nominated undertaker that this sub-paragraph applies, as soon as reasonably possible use their best endeavours to obtain the necessary facilities and rights; and neither the nominated undertaker nor the Secretary of State is obliged to provide such facilities and rights in the other land.
21 (1) Any alternative apparatus to be constructed by the undertakers in pursuance of paragraph 20 in land held or used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act or held by the Secretary of State, or in which the undertakers have obtained the necessary facilities and rights, must be constructed in such manner, and in such line or situation and in accordance with such programme, as is—
(a) agreed between the undertakers and the nominated undertaker with a view to securing, among other things, the efficient implementation of the necessary work, the avoidance of unnecessary delay and the continued fulfilment by the undertakers of their service obligations to a standard no less than that achieved prior to the removal of the apparatus which the alternative apparatus replaces, or
(b) in default of agreement, determined in accordance with paragraph 31.
(2) If the undertakers fail to comply with an agreement made under sub-paragraph (1), or with a determination under paragraph 31, they must compensate the nominated undertaker in respect of any loss or damage directly resulting from the failure, other than loss or damage arising from matters outside the reasonable control of the undertakers or loss of, or arising from delayed receipt of, operating revenue due to delayed opening of Phase 2a of High Speed 2.
22 (1) This paragraph applies where—
(a) the manner of construction and the line and situation of any necessary alternative apparatus have been agreed or determined as provided under paragraph 21, and
(b) any such facilities and rights as are referred to in paragraph 20 have been granted to or obtained by the undertakers, or an undertaking has been given that such facilities or rights will be granted.
(2) The undertakers must proceed with all reasonable despatch to—
(a) construct and bring into operation the alternative apparatus, and
(b) remove any apparatus required by the nominated undertaker to be removed under the provisions of this Part.
(3) If the undertakers fail to comply with sub-paragraph (2)(b), the nominated undertaker may remove the apparatus.
(4) Following the removal of apparatus under the provisions of this Part, or its abandonment, any rights of the undertakers relating to that apparatus in or over the land in which it was or is situated are extinguished and all responsibility of the undertakers for any apparatus which is abandoned is to cease.
23 (1) This paragraph applies where the nominated undertaker gives notice to the undertakers that it desires to carry out any part of so much of the work necessary in connection with the construction of the alternative apparatus, or the removal of the apparatus required to be removed, as is or will be situated in any lands—
(a) held or used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act, or
(b) held by the Secretary of State.
(2) Such work, instead of being carried out by the undertakers, must be carried out by the nominated undertaker—
(a) in accordance with plans and specifications and in a position agreed between the undertakers and the nominated undertaker, or, in default of agreement, determined in accordance with paragraph 31, and
(b) with all reasonable despatch under the superintendence (if given) and to the reasonable satisfaction of the undertakers.
(3) Nothing in this paragraph authorises the nominated undertaker to carry out any connection to or disconnection of any existing apparatus or to carry out any works associated with a connection or disconnection within 600 millimetres of the point of connection or disconnection.
24 (1) This paragraph applies where, in accordance with the provisions of this Part, the nominated undertaker or the Secretary of State affords to the undertakers facilities and rights for the construction, maintenance, repair, renewal and inspection of alternative apparatus on land—
(a) held or used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act, or
(b) held by the Secretary of State.
(2) Those facilities and rights must be granted upon such terms and conditions as may be—
(a) agreed between the nominated undertaker or, as the case may be, the Secretary of State, and the undertakers, or
(b) in default of agreement, determined in accordance with paragraph 31.
(3) In determining such terms and conditions in respect of alternative apparatus, a person making a determination under paragraph 31 must have regard to any template provisions issued by the appropriate Ministers and determined in accordance with sub-paragraph (4); and must—
(a) give effect to all reasonable requirements of the nominated undertaker for ensuring the safety and efficient operation of the works authorised by this Act and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the nominated undertaker or the use of the same, and
(b) have regard to the undertakers' ability to fulfil their service obligations.
(4) For the purposes of determining the matters under sub-paragraph (3) the appropriate Ministers must consult the undertakers to which paragraph 24 may apply on the form of the proposed template provisions, and any objections to the form of those provisions which have not been resolved within six months after this Act comes into force must be referred to an independent person acting as an expert appointed to make a final determination as to the form of the template provisions.
(5) The independent person making a determination under sub-paragraph (4) is to be appointed by the President of the Royal Institution of Chartered Surveyors and in making that determination that person must have regard to the matters specified in sub-paragraph (3)(a) and (b).
(6) If the facilities and rights to be afforded by the nominated undertaker or the Secretary of State in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted, are more or less favourable on the whole to the undertakers than the facilities, rights, terms and conditions applying to the apparatus to be removed, compensation must be paid to or by the nominated undertaker or the Secretary of State to or by the undertakers in respect of the difference as is reasonable having regard to all the circumstances of the case.
(7) In this paragraph “the appropriate Ministers” means the Secretary of State for Transport acting jointly with the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Energy Security and Net Zero.
25 (1) Not less than 28 days before commencing to construct any work authorised by this Act which is near to, or will or may affect, any apparatus the removal of which has not been required by the nominated undertaker under paragraph 20, the nominated undertaker must submit to the undertakers a plan and description of the work and of any protective measures which the nominated undertaker proposes to take in respect of that apparatus, together with a specification of such measures where appropriate.
(2) The work must be constructed only in accordance with the plan and description submitted under sub-paragraph (1) and in accordance with such reasonable requirements as may be made by the undertakers for the alteration or otherwise for the protection of the apparatus or for securing access to the apparatus, and the undertakers are to be entitled by their officer to watch and inspect the construction of the work.
(3) If the undertakers within 14 days after the submission to them of any such plan and description, in consequence of the works proposed by the nominated undertaker, reasonably require the removal of any apparatus and give written notice to the nominated undertaker of that requirement, this Part has effect as if the removal of such apparatus had been required by the nominated undertaker under paragraph 20.
(4) Nothing in sub-paragraphs (1) to (3) precludes the nominated undertaker from submitting at any time, or from time to time, but in no case less than 28 days before commencing the construction of the work, a new plan and description of it in lieu of the plan and description previously submitted, and having done so the provisions of those sub-paragraphs apply to and in respect of the new plan and description.
(5) The nominated undertaker is not required to comply with sub-paragraphs (1) to (3) in a case of emergency but in such a case it must give notice to the undertakers as soon as reasonably practicable and a plan and description of those works as soon as reasonably practicable subsequently, and must comply with those sub-paragraphs so far as reasonably practicable in the circumstances.
26 (1) If in consequence of the exercise of the powers of this Act the access to any apparatus is materially obstructed the nominated undertaker must, so far as reasonably practicable, provide alternative means of access to such apparatus which is no less convenient than the access enjoyed by the undertakers prior to the obstruction.
(2) The nominated undertaker must, so far as is reasonably practicable, so exercise its powers under paragraphs 2 to 6 of Schedule 2 as not to obstruct or render less convenient the access to any apparatus.
(3) Notwithstanding the temporary stopping up or diversion of any highway under paragraph 8 of Schedule 4, the undertakers may do all such works and things in any such highway as may be reasonably necessary to enable them to inspect, repair, maintain, renew, remove or use any apparatus which at the time of the stopping up or diversion was in that highway.
27 Where, in consequence of this Act, any part of any highway in which any apparatus is situate ceases to be part of a highway, the undertakers may exercise the same rights of access to such apparatus as they enjoyed immediately before the passing of this Act, but nothing in this paragraph is to affect any right of the nominated undertaker or of the undertakers to require removal of that apparatus under this Part or the power of the nominated undertaker to construct works in accordance with paragraph 25.
28 (1) Subject to the following provisions of this paragraph, the nominated undertaker must repay to the undertakers the reasonable expenses incurred by the undertakers in, or in connection with—
(a) the removal and relaying or replacing, alteration or protection of any apparatus or the construction of any new apparatus under any provision of this Part,
(b) the cutting off of any apparatus from any other apparatus in consequence of the exercise by the nominated undertaker of any power under this Act, and
(c) any other work or thing rendered reasonably necessary in consequence of the exercise by the nominated undertaker of any such power.
(2) The value of any apparatus removed under the provisions of this Part is to be deducted from any sum payable under sub-paragraph (1), that value being calculated after removal.
(3) Sub-paragraph (4) applies where, in pursuance of the provisions of this Part—
(a) alternative apparatus of better type, or greater capacity or of greater dimensions is placed in substitution for existing apparatus of worse type, of smaller capacity or of smaller dimensions, except where this has been solely due to using the nearest currently available type, or
(b) apparatus (whether existing apparatus or alternative apparatus) is placed at a depth greater than the depth at which the existing apparatus was situated.
(4) If 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 the nominated undertaker or, in default of agreement, is not determined to be necessary in accordance with paragraph 31, then, if it involves cost in the construction of works under paragraph 23 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 undertakers by virtue of sub-paragraph (1) is to be reduced by the amount of that excess
(5) For the purposes of sub-paragraphs (3) and (4)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended serves a purpose (either additional to or instead of that served by the existing apparatus) which was not served by the existing apparatus, and
(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole is to be treated as if it also had been agreed or had been so determined.
(6) An amount which apart from this sub-paragraph would be payable to the undertakers in respect of works by virtue of this paragraph must, if the works include the placing of apparatus provided in substitution for apparatus placed more than seven and a half years earlier so as to confer on the undertakers any financial benefit by deferment of the time for renewal of the apparatus or of the system of which it forms part in the ordinary course, be reduced by the amount which represents that benefit.
(7) In any case where work is carried out by the nominated undertaker pursuant to paragraph 23 and, if such work had been carried out by the undertakers, the repayment made to the undertakers under this paragraph would fall to be reduced pursuant to sub-paragraphs (3) to (6), the undertakers must pay to the nominated undertaker such sum as represents the amount of that reduction.
29 (1) This paragraph applies where, by reason of the construction of any of the works authorised by this Act, or any subsidence resulting from any of those works, 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 the undertakers, or there is any interruption in any service provided by any of the undertakers.
(2) Subject to sub-paragraphs (3) and (4), the nominated undertaker must—
(a) bear and pay the cost reasonably incurred by the undertakers in making good such damage or restoring the supply,
(b) make reasonable compensation to the undertakers for loss sustained by them by reason of any such damage or interruption, and
(c) indemnify the undertakers against claims, demands, proceedings, and damages which may be made or taken against, or recovered from the undertakers by reason of any such damage or interruption.
(3) Nothing in sub-paragraph (2) is to impose any liability on the nominated undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of the undertakers, their officers, servants, contractors or agents.
(4) The undertakers must give the nominated undertaker reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand must be made without the consent of the nominated undertaker which, if it withholds such consent, must have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
30 In any case where Network Rail Infrastructure Limited (“Network Rail”) is the nominated undertaker the provisions of this Part have effect subject to any existing agreement between Network Rail and an undertaker relating to apparatus laid or erected on land belonging to Network Rail.
31 (1) Any dispute arising between the nominated undertaker and the undertakers under this Part is to be determined by arbitration if—
(a) the parties agree, or
(b) the dispute relates to the amount of any sum payable under this Part,
but otherwise is to be determined by a person appointed by the appropriate Ministers.
(2) Any person appointed by the appropriate Ministers under sub-paragraph (1) must, in determining any dispute arising under this Part, have regard to such matters as may be specified by the appropriate Ministers on making the appointment.
(3) The costs and fees of the person determining the dispute and the costs of the parties to the dispute are to be allocated between the parties as that person may direct.
(4) In this paragraph “the appropriate Ministers” means the Secretary of State for Transport acting jointly with either the Secretary of State for Environment, Food and Rural Affairs or the Secretary of State for Energy Security and Net Zero.
PART 3 Electronic communications code networks
32 (1) The following provisions of this Part have effect, unless otherwise agreed in writing between the nominated undertaker, or the Secretary of State as the case may be, and an operator of an electronic communications code network.
(2) In this Part—
“alternative apparatus” means apparatus provided in replacement of electronic communications apparatus in connection with the construction of the authorised works;
“the appropriate Ministers” means the Secretary of State for Transport and the Secretary of State for Science, Innovation and Technology acting jointly;
“the authorised works” means the works authorised by this Act;
“construction” includes installation (and “construct” is to be construed accordingly);
“electronic communications code” means the code set out in Schedule 3A to the Communications Act 2003;
“operator”, “electronic communications apparatus”, and “electronic communications code network” have the meaning given by paragraph 1(1) of Schedule 17 to the Communications Act 2003.
33 (1) Subject to sub-paragraph (2), Part 10 of the electronic communications code applies for the purposes of the authorised works.
(2) Parts 6 and 10 of the electronic communications code do not apply for the purposes of the authorised works—
(a) insofar as such works are regulated by the New Roads and Street Works Act 1991 or any regulation made under that Act,
(b) where the nominated undertaker exercises a right under subsection (4)(b) of section 272 of TCPA 1990 or under an order made under that section to remove electronic communications apparatus, or
(c) in respect of any matter regulated by sub-paragraphs (3) to (8) of paragraph 35.
34 The temporary stopping up or diversion of any highway under paragraph 8 of Schedule 4 does not affect any right of an operator under Part 8 of the electronic communications code in respect of any apparatus which at the time of the stopping up or diversion is in the highway.
35 (1) Where a highway is stopped up under paragraph 2 or 3 of Schedule 4, any operator of an electronic communications code network whose electronic communications apparatus is under, over, in, on, along or across that highway may exercise the same rights of access in order to inspect, maintain, adjust, repair or alter that apparatus as if this Act had not been passed, but this is subject to sub-paragraph (2).
(2) Nothing in sub-paragraph (1) affects any right of the nominated undertaker or the operator to require removal of that apparatus under this Part or the power of the nominated undertaker to alter or remove apparatus in accordance with Part 10 of the electronic communications code.
(3) The nominated undertaker must give not less than 28 days' notice of its intention to stop up any highway under paragraph 2 or 3 of Schedule 4 to any operator of an electronic communications code network whose apparatus is under, over, in, on, along or across the highway.
(4) Where a notice under sub-paragraph (3) has been given, the operator, if it reasonably considers that it is necessary for the safe and efficient operation and maintenance of the apparatus, may, and if reasonably requested so to do by the nominated undertaker in the notice, must, as soon as reasonably practicable after the service of the notice—
(a) remove the apparatus and place it or other apparatus provided in substitution for it in such other position as the operator may reasonably determine and have power to place it, or
(b) provide other apparatus in substitution for the existing apparatus and place it in such other position as described in paragraph (a).
(5) Subject to the following provisions of this paragraph the nominated undertaker must pay to any operator of an electronic communications code network an amount equal to the cost reasonably incurred by the operator in or in connection with—
(a) the execution of relocation works required in consequence of the stopping up of the highway, and
(b) the doing of any other work or thing rendered necessary by the execution of relocation works.
(6) Sub-paragraph (7) applies where—
(a) in the course of the execution of relocation works under sub-paragraph (4)—
(i) apparatus of better type, greater capacity or greater dimensions is placed in substitution for existing apparatus of worse type, smaller capacity or smaller dimensions, except where this has been solely due to using the nearest currently available type, capacity or dimension, or
(ii) apparatus (whether existing apparatus or apparatus substituted for existing apparatus) is placed at a depth greater than the depth at which existing apparatus was, and
(b) 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 the nominated undertaker, or, in default of agreement, is not determined to be necessary in consequence of the construction of the authorised works in order to ensure the continued efficient operation of the electronic communications code network of the operator.
(7) If the execution of the relocation works involves cost exceeding that which would have been involved if the apparatus placed had been of the existing type, capacity or dimensions, or at the existing depth, as the case may be, the amount which apart from this paragraph would be payable to the operator by virtue of sub-paragraph (5) is to be reduced by the amount of that excess.
(8) For the purposes of sub-paragraphs (6) and (7)—
(a) an extension of apparatus to a length greater than the length of existing apparatus is not to be treated as a placing of apparatus of greater dimensions than those of the existing apparatus except in a case where the apparatus as so extended provides more than an equivalent service, and
(b) where the provision of a joint in a cable is agreed, or is determined to be necessary, the consequential provision of a jointing chamber or of a manhole (in either case of such type, capacity and dimensions as is reasonably appropriate) is to be treated as if it also had been agreed or had been so determined.
(9) The amount which apart from this sub-paragraph would be payable to an operator in respect of works by virtue of sub-paragraph (5) (and having regard, where it applies, to sub-paragraph (7)) must, if the works include the placing of apparatus provided in substitution for apparatus placed more than seven and a half years earlier so as to confer on the operator 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.
(10) Sub-paragraphs (5) to (9) do not apply where the authorised works constitute major transport works or major highway works for the purpose of Part 3 of the New Roads and Street Works Act 1991 (including that provision as applied by paragraph 10 of Schedule 4 to this Act), but instead—
(a) the allowable costs of any relocation works are to be determined in accordance with section 85 of that Act (sharing of costs of necessary measures) and any regulations for the time being having effect under that section, and
(b) the allowable costs are to be borne by the nominated undertaker and the operator in such proportions as may be prescribed by any such regulations.
36 (1) Where the nominated undertaker or the Secretary of State affords to an operator facilities and rights for the construction, maintenance, repair, renewal and inspection of alternative apparatus on land held or used, or intended for use, by the nominated undertaker for the purposes of its undertaking under this Act or held by the Secretary of State, those facilities and rights must be granted upon such terms and conditions as may be agreed between the nominated undertaker or, as the case may be, the Secretary of State, and the operator or, in default of agreement, determined in accordance with paragraph 39.
(2) In determining such terms and conditions, a person making a determination under paragraph 39 must have regard to any template provisions issued by the appropriate Ministers and determined in accordance with sub-paragraph (3); and must—
(a) give effect to all reasonable requirements of the nominated undertaker for ensuring the safety and efficient operation of the authorised works and for securing any subsequent alterations or adaptations of the alternative apparatus which may be required to prevent interference with any proposed works of the nominated undertaker or the use of the same; and
(b) have regard to the operator's ability to fulfil its service obligations.
(3) For the purposes of determining the matters under sub-paragraph (2) the appropriate Ministers must consult the operators to which paragraph 36 may apply on the form of the proposed template provisions, and any objections to the form of those provisions which have not been resolved within six months after this Act comes into force must be referred to an independent person acting as an expert appointed to make a final determination as to the form of the template provisions.
(4) The independent person making a determination under sub-paragraph (3) is to be appointed by the President of the Royal Institution of Chartered Surveyors and in making that determination that person must have regard to the matters specified in sub-paragraph (2)(a) and (b).
(5) If the facilities and rights to be afforded by the nominated undertaker or the Secretary of State in respect of any alternative apparatus, and the terms and conditions subject to which those facilities and rights are to be granted are more or less favourable on the whole to the operator than the facilities, rights, terms and conditions applying to the apparatus to be removed, compensation must be paid to or by the nominated undertaker or the Secretary of State to or by the operator in respect of the difference as is reasonable having regard to all the circumstances of the case.
37 (1) Sub-paragraph (2) applies where, by reason of the construction of the authorised works or any subsidence resulting from any of those works—
(a) damage is caused to any electronic communications apparatus, other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works,
(b) damage is caused to property of the operator of an electronic communications code network, or
(c) there is any interruption in the supply of the service provided by the operator.
(2) The nominated undertaker must—
(a) bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply,
(b) make reasonable compensation to the operator for loss sustained by it, and
(c) indemnify the operator against all claims, demands, proceedings, or damages which may be made or taken against, or recovered from, the operator, by reason of any such damage or interruption.
But this is subject to sub-paragraphs (3) to (5).
(3) Sub-paragraph (2) does not apply in connection with any apparatus in respect of which the relations between the nominated undertaker and the operator are regulated by the provisions of Part 3 of the New Roads and Street Works Act 1991.
(4) Nothing in sub-paragraph (2) is to impose any liability on the nominated undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of the operator, its officers, servants, contractors or agents.
(5) The operator must give the nominated undertaker reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand is to be made without the consent of the nominated undertaker which, if it withholds such consent, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
(6) This paragraph applies instead of section 176 (right to compensation) of the Housing and Planning Act 2016, as applied by paragraph 8(2) of Schedule 2 in relation to the exercise of the powers of paragraphs 2 to 6 of that Schedule.
38 In any case where Network Rail Infrastructure Limited (“Network Rail”) is the nominated undertaker the provisions of this Part have effect subject to any existing agreement between Network Rail and an operator relating to apparatus laid or erected on land belonging to Network Rail.
39 (1) Any dispute arising between the nominated undertaker and an operator under this Part is to be determined by arbitration if—
(a) the parties agree, or
(b) the dispute relates to the amount of any sum payable under this Part,
but is otherwise to be determined by a person appointed by the appropriate Ministers.
(2) Any person appointed by the appropriate Ministers under sub-paragraph (1) must, in determining any dispute arising under this Part, have regard to such matters as may be specified by the appropriate Ministers on making the appointment.
(3) The costs and fees of the person determining the dispute and the costs of the parties to the dispute are to be allocated between the parties as that person may direct.
PART 4 Land drainage, flood defence, water resources and fisheries
40 (1) The following provisions of this Part have effect, unless otherwise agreed in writing between the nominated undertaker and the drainage authority concerned.
(2) In this Part—
“the Agency” means the Environment Agency;
“a category 1 specified work” means so much of any permanent or temporary work or operation authorised by this Act (which includes, for the avoidance of doubt, any dredging and any geotechnical investigations that may be undertaken) as—
consists of a flood risk activity, a water discharge activity or groundwater activity within the meaning of the Environmental Permitting Regulations, or
involves abstraction of water, or is likely to materially affect the quantity or quality of water which any person is licensed or permitted to abstract, from a source of supply within the meaning of the Water Resources Act 1991;
“a category 2 specified work” means any of the following—
erecting any mill dam, weir or other like obstruction to the flow of any ordinary watercourse, or raising or otherwise altering any such obstruction,
erecting a culvert in an ordinary watercourse,
altering a culvert in a manner that would be likely to affect the flow of an ordinary watercourse, or
altering, removing or replacing a structure or feature designated by a local drainage authority under Schedule 1 to the Flood and Water Management Act 2010;
“construction” includes execution, placing, altering, replacing, relaying and removal and “construct” and “constructed” are construed accordingly;
“the drainage authority” means—
in relation to a category 1 specified work, the Agency;
in relation to a category 2 specified work, the drainage board concerned within the meaning of section 23 of the Land Drainage Act 1991;
“drainage work” means any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring, and includes land which provides or is to provide flood storage capacity for any watercourse;
“the Environmental Permitting Regulations” means the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154);
“fishery” means any waters containing fish and fish in, or migrating to or from such waters and the spawn, spawning grounds or food of such fish;
“local drainage authority” means a drainage authority other than the Agency;
“ordinary watercourse” has the meaning given by the Land Drainage Act 1991;
“plans” includes sections, drawings, specifications and method statements;
“watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows except a public sewer as defined by the Water Industry Act 1991.
(3) Where any approval is required under this Part from a local drainage authority, that authority must—
(a) have regard, in imposing any conditions or requirements, to any model conditions issued by the Agency (following consultation with the other drainage authorities and the nominated undertaker);
(b) consult the Agency in any case where it proposes to impose conditions or requirements, or to refuse approval, and must specifically seek the Agency's advice concerning any proposal to depart from the model conditions;
(c) provide the nominated undertaker with reasons and supporting evidence in any case where it gives a decision which does not accord with the view or advice of the Agency given in response to consultation under paragraph (b).
41 (1) Before beginning to construct any specified work, the nominated undertaker must submit to the drainage authority plans of the work and such further particulars available to it as the drainage authority may within 28 days of the submission of the plans reasonably require.
(2) Any such specified work must not be constructed except in accordance with such plans as may be approved in writing by the drainage authority, or determined under paragraph 51.
(3) Any approval of the drainage authority required under this paragraph—
(a) must not be unreasonably withheld,
(b) is to be deemed to have been given if it is neither given nor refused within 56 days of the submission of the plans for approval or where further particulars are submitted under sub-paragraph (1), within 56 days of the submission of those particulars, and
(c) may be given subject to such reasonable requirements or conditions as the drainage authority may make for the protection of any drainage work or fishery or for the protection of water resources, or for the prevention of flooding or pollution or in the discharge of its statutory environmental duties.
42 (1) This paragraph applies to any request for approval of plans under paragraph 41 to the extent that the plans relate to a groundwater activity within the meaning of paragraph 3 of Schedule 22 to the Environmental Permitting Regulations, except where the circumstances described in paragraph 3(3) of that Schedule apply.
(2) In exercising its functions in relation to that request the drainage authority must comply with the requirements of paragraph 7(2) to (5) of Schedule 22 to the Environmental Permitting Regulations, subject to paragraph 8 of that Schedule, as if the request for approval were as an application for a permit under those regulations.
43 The requirements which the drainage authority may make under paragraph 41 include conditions requiring the nominated undertaker at its own expense to construct such protective works (including any new works as well as alterations to existing works) as are reasonably necessary—
(a) to safeguard any drainage work against damage, or
(b) to secure that its efficiency for flood defence purposes is not impaired and that the risk of flooding is not otherwise increased,
by reason of the specified work.
44 (1) Any specified work, and all protective works required by the drainage authority under paragraph 41, must be constructed to the reasonable satisfaction of the drainage authority and an officer of the drainage authority is entitled on giving such notice as may be reasonable in the circumstances, to inspect and watch the construction of such works.
(2) The nominated undertaker must give to the drainage authority not less than 14 days' notice of its intention to commence construction of any specified work and notice of its completion not later than 7 days after the date on which it is brought into use.
(3) If any part of the works comprising a structure in, over or under a watercourse is constructed otherwise than in accordance with the requirements of this Part, the drainage authority may by notice require the nominated undertaker at the nominated undertaker's own expense to comply with the requirements of this Part or (if the nominated undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the drainage authority reasonably requires.
(4) Subject to sub-paragraph (5), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon the nominated undertaker, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the drainage authority may execute the works specified in the notice and any expenditure reasonably incurred by it in so doing is to be recoverable from the nominated undertaker.
(5) In the event of any dispute as to whether sub-paragraph (3) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the drainage authority must not, except in an emergency, exercise the powers conferred by sub-paragraph (4) until the dispute has been finally determined.
45 (1) Subject to sub-paragraph (5) the nominated undertaker must from the commencement of the construction of the specified works maintain in good repair and condition and free from obstruction any drainage work which is situated within the limits of deviation and on land held by the nominated undertaker for the purposes or in connection with the specified works, whether the drainage work is constructed under this Act or is already in existence.
(2) If any such drainage work is not maintained to the reasonable satisfaction of the drainage authority, the drainage authority may by notice require the nominated undertaker to repair and restore the work, or any part of it, or (if the nominated undertaker so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed), to remove the drainage work and restore the site to its former condition, to such extent and within such limits as the drainage authority reasonably requires.
(3) If, within a reasonable period being not less than 28 days beginning with the date on which a notice in respect of any drainage work is served under sub-paragraph (2) on the nominated undertaker, the nominated undertaker has failed to begin taking steps to comply with the reasonable requirements of the notice and has not subsequently made reasonably expeditious progress towards their implementation, the drainage authority may do what is necessary for such compliance and may recover any expenditure reasonably incurred by it in so doing from the nominated undertaker.
(4) In the event of any dispute as to the reasonableness of any requirement of a notice served under sub-paragraph (2), the drainage authority must not except in a case of emergency exercise the powers of sub-paragraph (3) until the dispute has been finally determined.
(5) This paragraph does not apply to—
(a) drainage works which are vested in the drainage authority, or which the drainage authority or another person is under an obligation to maintain and is not proscribed by the powers of the Act from doing so;
(b) any obstruction of a drainage work for the purpose of a work or operation authorised by the Act and carried out in accordance with the provisions of this Part.
46 (1) If by reason of the construction of any specified work or of the failure of any such work the efficiency of any drainage work for flood defence purposes is impaired, or that work is otherwise damaged, so as to require remedial action, such impairment or damage must be made good by the nominated undertaker to the reasonable satisfaction of the drainage authority and if the nominated undertaker fails to do so, the drainage authority may make good the same and recover from the nominated undertaker the expense reasonably incurred by it in doing so.
(2) In any case where immediate action by the drainage authority is reasonably required in order to secure that the imminent flood risk is avoided or reduced, the drainage authority may take such steps as are reasonable for the purpose, and may recover from the nominated undertaker the reasonable cost of so doing provided that notice specifying those steps is served on the nominated undertaker as soon as reasonably practicable after the drainage authority has taken, or commenced to take, the steps specified in the notice.
(3) Nothing in paragraph 44, 45 or 46 authorises the drainage authority to execute works on or affecting an operational railway without the prior consent in writing of the nominated undertaker, such consent not to be unreasonably withheld.
47 (1) The nominated undertaker must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in any fishery during the construction of any specified work.
(2) If by reason of—
(a) the construction of any specified work, or
(b) the failure of any such work,
damage to a fishery is caused, or the Agency has reason to expect that such damage may be caused, the Agency may serve notice on the nominated undertaker requiring it to take such steps as may be reasonably practicable to make good the damage or, as the case may be, to protect the fishery against such damage.
(3) If, within such time as may be reasonably practicable for that purpose after the receipt of written notice from the Agency of any damage or expected damage to a fishery, the nominated undertaker fails to take such steps as are described in sub-paragraph (2), the Agency may take those steps and may recover from the nominated undertaker the expense reasonably incurred by it in doing so.
(4) In any case where immediate action by the Agency is reasonably required in order to secure that the risk of damage to a fishery is avoided or reduced, the Agency may take such steps as are reasonable for the purpose, and may recover from the nominated undertaker the reasonable cost of so doing provided that notice specifying those steps is served on the nominated undertaker as soon as reasonably practicable after the Agency has taken, or commenced to take, the steps specified in the notice.
48 (1) The nominated undertaker must indemnify the drainage authority from all claims, demands, proceedings or damages, which may be made or taken against, or recovered from the drainage authority by reason of—
(a) any damage to any drainage work so as to impair its efficiency for flood defence purposes,
(b) any damage to a fishery,
(c) any raising or lowering of the water table in land adjoining the works authorised by this Act or adjoining any sewers, drains and watercourses, or
(d) any flooding or increased flooding of any such lands,
which is caused by, or results from, the construction of any specified work or any act or omission of the nominated undertaker, its contractors, agents or employees whilst engaged upon the work.
(2) The drainage authority must give to the nominated undertaker reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand is to be made without the consent of the nominated undertaker which, if it withholds such consent, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
49 Nothing in paragraph 48 requires the nominated undertaker to indemnify the drainage authority in respect of any claim, demand, proceedings or damages which the drainage authority could reasonably make, take against or recover from any other person.
50 The fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by the drainage authority, or to its satisfaction, or in accordance with any determination under paragraph 51, does not (in the absence of negligence on the part of the drainage authority, its officers, contractors or agents) relieve the nominated undertaker from any liability under the provisions of this Part.
51 Any dispute arising between the nominated undertaker and the drainage authority under this Part is to be determined by arbitration.
PART 5 Canal & River Trust
52 (1) The following provisions of this Part have effect, unless otherwise agreed in writing between the nominated undertaker, or the Secretary of State as the case may be, and Canal & River Trust.
(2) In this Part—
“the canal” means any canal or waterway owned or managed by Canal & River Trust, and includes any works connected therewith for the maintenance of which Canal & River Trust is responsible and any lands held or used by Canal & River Trust for the purposes of the canal including the towpath beside a canal or waterway;
“construction” includes execution, placing, altering, replacing and relaying and includes removal;
“plans” includes sections, drawings, specifications and method statements;
“specified work” means so much of any permanent or temporary work authorised by this Act as is in, across, under, or within 15 metres of, or may in any way affect, the canal.
53 The Secretary of State must not under the powers under section 4(1) acquire compulsorily any land of Canal & River Trust or any easement or other right over such land other than such land, or easements or other rights, as is reasonably necessary for, or in connection with, the construction, maintenance or operation of works authorised by this Act having regard also to the statutory duties of Canal & River Trust.
54 (1) Before beginning to construct any specified work, the nominated undertaker must submit to Canal & River Trust plans of the work and such further particulars available to it as Canal & River Trust may within 14 days of the submission of the plans reasonably require.
(2) Any specified work must not be constructed except in accordance with such plans as may be approved in writing by Canal & River Trust or determined under paragraph 62.
(3) Any approval of Canal & River Trust required under this paragraph must not be unreasonably withheld and—
(a) is to be deemed to have been given if it is neither given nor refused (with an indication of the grounds for refusal) within 28 days of the submission of the plans for approval or where further particulars are submitted under sub-paragraph (1), within 28 days of the submission of those particulars; and
(b) may be given subject to such reasonable requirements as Canal & River Trust may make for the purpose of ensuring the safety or stability of the canal, including requirements as to the construction of protective works.
55 (1) Any specified work, and any protective works required by Canal & River Trust under paragraph 54(3)(b), must be constructed with all reasonable despatch to the reasonable satisfaction of Canal & River Trust, and in such manner as to cause as little damage to the canal as may be reasonably practicable and as little interference as may be reasonably practicable with the passage of vessels using the canal and use of the towpath, and Canal & River Trust is to be entitled by its officer at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect the construction of such work or works.
(2) The nominated undertaker must give to Canal & River Trust not less than 28 days' notice of its intention to commence construction of any specified work or any protective works and also, except in emergency (when the nominated undertaker is to give such notice as may be reasonably practicable), of its intention to carry out any works for the repair or maintenance of any specified work insofar as such works of repair or maintenance affect or interfere with the canal.
56 (1) The nominated undertaker must not deposit any polluting material on, in or over the canal and must not without the consent of Canal & River Trust—
(a) deposit any other materials on, in or over the canal (other than materials comprised in a specified work); or
(b) notwithstanding anything in this Act, discharge any water directly or indirectly into the canal.
(2) Any consent of Canal & River Trust required under this paragraph is not to be unreasonably withheld and—
(a) is to be deemed to have been given if it is neither given nor refused within 28 days of the submission of the request for it; and
(b) may be given subject to such reasonable requirements as Canal & River Trust may make—
(i) in the case of a deposit, so as to ensure that the use of the canal is not obstructed or rendered less safe, and
(ii) in the case of a discharge, concerning the reimbursement by the nominated undertaker of expenses incurred by Canal & River Trust in disposing of the water so discharged, being expenses which Canal & River Trust would not have incurred but for the discharge.
57 In its application to the discharge of water into the canal, paragraph 10(5) of Schedule 2 has effect subject to the terms of any conditions attached to the consent under paragraph 56(2) and, where such discharge includes a deposit to which consent has been given under paragraph 56(1), to any conditions attached to that consent.
58 (1) If as a result of the construction of any specified work any part of the towpath or access way beside the canal, or any public right of way giving access to that path or way, is temporarily closed to pedestrians or cyclists and there is no way which provides a reasonable alternative, the nominated undertaker must, so far as reasonably practicable and to the extent that it is consistent with safety, provide a substitute path or paths for such time as the closure continues.
(2) This paragraph is without prejudice to the requirements of paragraph 8(2) or (5) of Schedule 4.
59 (1) If any canal work is abandoned, Canal & River Trust may by notice require the nominated undertaker to take such reasonable steps as may be specified in the notice to remove the work and (to such extent as Canal & River Trust reasonably requires) to restore the site to its former condition.
(2) If any canal work is in such condition that it is, or is likely to become, a danger to or to interfere with navigation, Canal & River Trust may by notice require the nominated undertaker to take such reasonable steps as may be specified in the notice—
(a) to repair and restore the work or part of it, or
(b) if the nominated undertaker so elects, to remove the work and (to such extent as Canal & River Trust reasonably requires) to restore the site to its former condition.
(3) If—
(a) a work which consists of a canal work and a non-canal work is abandoned or falls into decay; and
(b) the non-canal work is in such a condition as to interfere with the right of navigation in the relevant canal or as to interfere with the rights of access or use of land adjacent to the relevant canal,
Canal & River Trust may include the non-canal work, or any part of it, in any notice under this paragraph.
(4) If after such reasonable period as may be specified in a notice under this paragraph the nominated undertaker has failed to begin taking steps to comply with the requirements of the notice or after beginning has failed to make reasonably expeditious progress towards their implementation, Canal & River Trust may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing is to be recoverable from the nominated undertaker.
(5) In this paragraph “canal work” means so much of any specified work or any other work of which the nominated undertaker is in possession under the powers of this Act as is in or over a canal owned or managed by Canal & River Trust and “non-canal work” means so much of any such work as is not in or over a canal.
60 (1) The nominated undertaker must indemnify Canal & River Trust from all claims, demands, proceedings or damages, which may be made or given against, or recovered from Canal & River Trust by reason of any damage to the canal which is caused by the construction of any specified work or protective work or any act or omission of the nominated undertaker, its contractors, agents or employees whilst engaged upon the work and from any costs reasonably incurred in making good such damage.
(2) Canal & River Trust must give to the nominated undertaker reasonable notice of any such claim or demand and no settlement or compromise of any such claim or demand is to be made without the consent of the nominated undertaker which, if it notifies Canal & River Trust that it desires to do so, is to have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
61 (1) Nothing in paragraph 60 is to impose any liability on the nominated undertaker with respect to any damage to the extent that it is attributable to the act, neglect or default of Canal & River Trust, its officers, servants, contractors or agents.
(2) But the fact that any work or thing has been executed or done in accordance with a plan approved or deemed to be approved by Canal & River Trust, or to its satisfaction, or in accordance with a determination under paragraph 62, does not (in the absence of negligence on the part of Canal & River Trust, its officers, servants, contractors or agents) relieve the nominated undertaker from any liability under the provisions of this Part.
62 (1) Any dispute arising between the nominated undertaker and Canal & River Trust under this Part of this Schedule is to be determined by arbitration if—
(a) the parties agree, or
(b) the dispute relates to the amount of any sum payable under this Part,
but must otherwise be determined by a person appointed by the appropriate Ministers.
(2) Any person appointed by the appropriate Ministers under sub-paragraph (1) must, in determining any dispute arising under this Part, have regard to such matters as may be specified by the appropriate Ministers on making the appointment.
(3) In this paragraph, the reference to the appropriate Ministers is to the Secretary of State for Transport and the Secretary of State for Environment, Food and Rural Affairs acting jointly.