The Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014

PART 2 THE PORT OF LONDON AUTHORITY

1.  The provisions of this Part of this Schedule shall, unless otherwise agreed in writing between the undertaker and the Port of London Authority, have effect for the protection of the Port of London Authority.

2.  The construction or carrying out of any tidal work is not subject to any of the controls in sections 66-75 of the 1968 Act.

Definitions

3.  In this Part of this Schedule—

“the 1968 Act” means the Port of London Act 1968;

“detailed submission programme” means a programme setting out the anticipated dates for submissions seeking approval of detailed design of tidal works under paragraph 4;

“navigational risk assessment” means assessment of any potential risk of the tidal works at each site, and shall contain the following information:

(a)

existing navigational features including extent of authorised channels, existing navigational structures and constraints;

(b)

tidal characteristics;

(c)

existing river uses;

(d)

general navigational arrangements;

(e)

existing site specific issues;

(f)

existing navigational risks;

(g)

proposed navigational strategies;

(h)

delivery schedules; and

(i)

such other details as agreed between the undertaker and the Authority;

“permanent work” means any work or structure forming part of the authorised development that is required for the construction and operation of the authorised project that is on, in, under or over the surface of the land below the level of mean high water springs forming part of the river;

“plans and sections” includes sections, elevations, drawings, calculations, specifications, programmes, method statements, assessments of navigational risk and hydraulic information relating to the construction, carrying out and, where appropriate, removal of any tidal work;

“scour and accretion monitoring and mitigation strategy” means a scour and accretion monitoring and mitigation strategy for the tidal works to be submitted to the Authority including, but not limited to, results and clarification of existing and further works, and the extent, frequency, and form of the monitoring and mitigation for scour and accretion;

“scour and accretion monitoring and mitigation plan” means a plan prepared in accordance with paragraph 17;

“site” means Putney Embankment Foreshore, Carnwath Road Riverside, Dormay Street, Cremorne Wharf Depot, Chelsea Embankment Foreshore, Kirtling Street, Heathwall Pumping Station, Albert Embankment Foreshore, Victoria Embankment Foreshore, Blackfriars Bridge Foreshore, Chambers Wharf, Greenwich Pumping Station and King Edward Memorial Park Foreshore, Abbey Mills or any of them;

“specified day” means, in relation to any tidal work, the business day on which plans and sections of that work are received by the Authority under paragraph 5(1);

“temporary work” means any work or structure forming part of the authorised development that is not required for the operation of the authorised project and which is on, in, under or over the surface of the land below the level of mean high water springs forming part of the river;

“tidal work” means any permanent or temporary work or operation excluding any tunnelling works, constructed or carried out under this order that is, or may be on, in, under or over the surface of land below mean high water level forming part of the river, including

(j)

any projection over the river outside the order limits by booms, cranes and similar plant or machinery, whether or not they are situated within the order limits;

(k)

the placing or maintenance of apparatus, plant or equipment;

(l)

any survey or monitoring works undertaken pursuant to article 22 (authority to survey and investigate land) or maintenance works undertaken pursuant to article 36 (temporary use of land for maintaining authorised project) which would if not for the provisions of this order require a licence pursuant to section 66 of the 1968 Act;

(m)

any such work or operation (including any suspension or extinguishment of public rights of navigation under article 47 (public rights of navigation)) that affects the river or any function of the Authority, whether or not that work or operation is in, over or under the river,

but does not include maintenance dredging; and

“tunnelling works” means works 1a to 1d, 3b, 4b, 5b, 7, 10b, 11b, 12b, 14b, 15b, 16b and 20 so far as these works are under the river.

Time limits

4.—(1) The time limits for which this Part of this Schedule provides are subject to the provisions of this paragraph.

(2) The undertaker shall submit the detailed submission programme to the Authority for comment.

(3) If, by reason of the number or complexity of the submissions anticipated in the detailed submission programme, the Authority (acting reasonably) is of the view that it could not, while continuing to perform its statutory functions without interruption, comply with any time limit for which this Part of the Schedule provides, the Authority will notify the undertaker in writing within 15 business days of receiving the detailed submission programme.

(4) A notice given under paragraph 4(3) shall include the Authority’s reasonable estimate of the time required for it to deal with the submission or submissions identified pursuant to paragraph 4(3), such an estimate not to exceed 65 business days from the anticipated date of receipt of the relevant submission as identified in the detailed submission programme, and the Authority shall thereafter determine such a submission within the estimate included in its notice given pursuant to this paragraph.

Tidal works: approval of detailed design

5.—(1) Before—

(a) commencing the construction or carrying out of a tidal work; or

(b) commencing any operation for the maintenance of a tidal work,

the undertaker shall submit to the Authority plans and sections of the tidal work, a scour and accretion monitoring and mitigation plan relating to the tidal work, a navigational risk assessment, its proposals for any lighting and laying down of buoys to secure the navigational safety of the river in the vicinity of the proposed tidal works (including any area over which public rights of navigation have been suspended) and such further particulars as the Authority may reasonably require.

(2) A tidal work shall not be constructed, carried out or maintained except in accordance with plans and sections approved in writing by the Authority under this paragraph or determined under paragraph 24.

(3) Any approval of the Authority required under this paragraph shall not be unreasonably withheld but may be given subject to such reasonable conditions as the Authority may make for the protection of—

(a) traffic in, or the flow or regime of, the river;

(b) the use of its operational land or the river for the purposes of performing its functions; or

(c) the performance of any of its functions connected with environmental protection.

(4) Conditions made under paragraph 5(3) may include conditions as to—

(a) the proposed location of any temporary work and its dimensions;

(b) the length of time that any temporary work may be kept in place;

(c) the removal of any temporary work and the undertaking by the undertaker of any related work or operation that the Authority considers to be necessary for the purpose of removing or preventing any obstruction to navigation;

(d) the relocation, provision and maintenance of works (other than tidal works), moorings, apparatus and equipment necessitated by the tidal work; and

(e) the expiry of the approval if the undertaker does not commence construction or carrying out of the approved tidal work within a prescribed period.

(5) Subject to paragraph 5(6) and paragraph 5(7), an application for approval under this paragraph shall be deemed to have been refused if it is neither given nor refused within 35 business days of the specified day.

(6) An approval of the Authority under this paragraph shall not be deemed to have been unreasonably withheld if approval within the time limit specified by paragraph 5(5) has not been given pending the outcome of any consultation on the approval in question that the Authority is obliged to carry out in the proper exercise of its functions.

(7) In the event that the Authority requires further information pursuant to paragraph 5(1), then the Authority shall determine the submission submitted pursuant to paragraph 5(1) as soon as reasonably practicable, but in any event no later than 65 business days from the specified day.

(8) An approval of the Authority under this paragraph is evidence that the plans and sections to which the approval relates have been approved only as affecting the Authority, the Authority’s functions and the River in relation to those functions, and does not imply approval or endorsement of the plans and sections for any other purpose.

Public rights of navigation

6.—(1) The undertaker shall serve notice on the Authority under Article 47(3) not later than 20 business days prior to the proposed commencement date of any suspension or extinguishment of the public rights of navigation.

(2) Any such notice shall provide details (or in the case of a consent notice, proposed details) of the suspension or extinguishment including particulars of:

(a) commencement date;

(b) duration; and

(c) the affected area

and in the case of a consent notice shall include an explanation of the need for the proposed closure.

(3) Any suspension of the public rights of navigation under article 47(2) shall not take place except in accordance with approval in writing by the Authority and any conditions imposed by the Authority under this paragraph or determined under paragraph 24.

(4) The Authority may in relation to any consent notice impose reasonable conditions for any purpose described in paragraph 6(3).

(5) Conditions imposed under paragraph 6(4) may include conditions as to–

(a) the limits of any area subject to a temporary suspension of public rights of navigation;

(b) the duration of any temporary suspension;

(c) the means of marking or otherwise providing warning in the river of any area affected by a temporary suspension or permanent extinguishment of public rights of navigation; and

(d) the use by the undertaker of the area subject to any temporary suspension so as not to interfere with any other part of the river or affect its use.

(6) For the purposes of Article 47(4) the Authority shall issue its notice to mariners:-

(a) in relation to a temporary suspension or permanent extinguishment under article 47(1) within 15 business days of receipt of the undertaker’s notice served pursuant to paragraph 6(1);

(b) in relation to a temporary suspension under Article 47(2) within 15 business days of consent to the suspension being given by the Authority or determined pursuant to paragraph 24.

(7) Sub-paragraphs (5), (6) and (7) of paragraph 5 apply to any application for consent made by the undertaker under Article 47(2).

(8) In this paragraph “consent notice” means a notice relating to temporary suspension requiring consent under Article 47(2).

General provision as to construction of works including inspection

7.  The construction or carrying out of any tidal work shall, once commenced, be carried out by the undertaker with all reasonable dispatch and to the reasonable satisfaction of the Authority so that river traffic, the flow or regime of the river and the exercise of the Authority’s functions shall not suffer more interference than is reasonably practicable, and the Authority shall be entitled by its officer at all reasonable times, on giving such notice as may be reasonable in the circumstances, to inspect and survey such operations.

Works to river banks

8.  The undertaker shall not, in exercise of the powers conferred by article 19 (discharge of water), damage or interfere with the beds or banks of any watercourse forming part of the river unless such damage or interference is approved (or determined under paragraph 24) as a tidal work or is otherwise approved in writing by the Authority.

Discharges etc.

9.—(1) The undertaker shall not without the consent of the Authority—

(a) deposit in or allow to fall or be washed into the river any gravel, soil or other material;

(b) discharge or allow to escape either directly or indirectly into the river any offensive or injurious matter in suspension or otherwise; or

(c) directly or indirectly discharge any water into the river.

(2) Any consent of the Authority under this paragraph shall not be unreasonably withheld but may be given subject to such terms and conditions as the Authority may reasonably impose.

(3) Any such consent shall be deemed to have been given if it is neither given nor refused (or is refused but without an indication of the grounds for refusal) within 5 business days of the day on which the request for consent is submitted under paragraph 9(1).

(4) Article 19 (discharge of water) has effect subject to this paragraph.

Navigational lights, buoys, etc

10.—(1) The undertaker shall, at or near any tidal work, and any other work below mean high water level of which the undertaker is in possession, exhibit such lights, lay down such buoys and take such other steps for preventing danger to navigation as the Authority may from time to time reasonably require.

(2) The Authority shall give the undertaker not less than 20 business days written notice of a requirement under paragraph 10(1) except in the case of emergency when the Authority shall give such notice as is reasonably practicable.

(3) Without prejudice to section 133 of the 1968 Act (Lights detrimental to navigation), the undertaker shall comply with the directions of the Harbour Master from time to time with regard to the lighting on the tidal works, or the screening of such lighting, so as to ensure that it is not a hazard to navigation on the river.

Removal etc of the Authority’s moorings and buoys

11.—(1) Subject to paragraph 11(2), if by reason of the construction of any tidal work it is reasonably necessary for the Authority to incur the cost of—

(a) temporarily or permanently altering, removing, re-siting, repositioning or reinstating existing moorings or aids to navigation (including navigation marks or lights) owned by the Authority;

(b) laying down and removing substituted moorings or buoys; or

(c) carrying out dredging operations for any such purpose;

not being costs which it would have incurred for any other reason, the undertaker shall pay the costs reasonably so incurred by the Authority.

(2) The Authority shall give to the undertaker not less than 20 business days’ notice of its intention to incur such costs, and take into account any representations which the undertaker may make in response to the notice within 10 business days of the receipt of the notice.

Removal of temporary works

12.—(1) On completion of the construction or carrying out of any part of a permanent work, authorised by this Order the undertaker shall as soon as practicable remove—

(a) any temporary work carried out only for the purposes of that part of the permanent work; and

(b) any materials, plant and equipment used for such construction or carrying out,

and shall make good the site of the permanent work to the reasonable satisfaction of the Authority.

(2) Accordingly, on completion of the construction of the authorised development everything within the description in paragraph 12(1)(a) or (b) and relating to the authorised development shall have been removed as soon as reasonably practicable in accordance with this paragraph.

Survey of river bed

13.  The undertaker shall, at its own expense, carry out the following surveys, the scope of which shall be agreed by the undertaker and the Authority—

(a) before the commencement of construction or carrying out of the first tidal work to be commenced following approval under paragraph 5, a survey of such parts of the river as might be affected by sedimentation or scouring that might result from the construction of so much of the authorised project as would comprise tidal works if they were to be constructed, such survey being for the purpose of establishing the condition of the river at the time the survey is carried out;

(b) before the commencement of construction or carrying out of any tidal work approved under paragraph 5, a survey of such parts of the river as might be affected by sedimentation or scouring resulting from that tidal work, such survey being for the purpose of establishing the condition of the river at the time the survey is carried out;

(c) during the construction or carrying out of any tidal work, such surveys of the river (for the purpose of ascertaining the effect of that tidal work on the river) as are stipulated in the scour and accretion monitoring and mitigation strategy or the relevant scour and accretion monitoring and mitigation plan; and

(d) after completion of, respectively, any tidal work and all the tidal works constructed or carried out under this Order, a survey of the completed tidal works as constructed or carried out (for the purpose of establishing the condition of the river and the effect that the tidal work or the authorised project is, or as the case may be the tidal works are, having on sedimentation or scouring, the flow and regime of the river, the navigation of the river or the protection of structures within the river or the exercise of the Authority’s functions) as are stipulated in the scour and accretion monitoring and mitigation strategy or the relevant scour and accretion monitoring and mitigation plan.

Sedimentation, etc: remedial action

14.—(1) This paragraph applies if any part of the river has become or is likely to become subject to sedimentation, scouring or other changes in the flow or regime of the river which—

(a) is wholly or partly caused by a tidal work during the period beginning with the commencement of construction of the tidal work and (subject to sub-paragraph (4)) ending with the expiration of 6 years after the date of completion of all the tidal works comprised in the authorised project; and

(b) for the safety of navigation or for the protection of any works in the river, should in the reasonable opinion of the Authority be removed or made good.

(2) The undertaker shall either—

(a) pay to the Authority any additional expense to which the Authority may reasonably be put in dredging the river to remove the sedimentation or in making good the scouring so far as (in either case) it is attributable to the tidal work; or

(b) carry out the necessary dredging or work to make good the scouring at its own expense and subject to the prior approval of the Authority which may be subject to reasonable conditions but which may not be unreasonably withheld or delayed;

and the expenses payable by the undertaker under this paragraph include any additional expenses accrued or incurred by the Authority in carrying out surveys or studies which may be agreed with the undertaker in connection with the implementation of this paragraph.

(3) The Authority may serve notice on the undertaker before the expiration of 6 years after the date of completion of all the tidal works comprised in the authorised project stating that in the opinion of the Authority the river or any part of it may become subject to sedimentation, scouring or other changes in the flow or regime of the river after the expiry of the said six year period. Any such notice shall specify the additional period for protection (which cannot exceed a period of 10 years after the date of completion of all the tidal works comprised in the authorised project) and the Authority’s case for requiring this.

(4) On receipt of any notice the undertaker may serve a counter-notice within 15 business days beginning on the day the notice was received such notice to include details of the undertaker’s objection to the Authority’s notice or any conditions it may wish to impose on compliance by the undertaker with the Authority’s notice.

(5) In the event that the Authority and the undertaker cannot agree the matters raised in the Authority’s notice and the undertaker’s counter-notice within two months from the service of the undertaker’s counter-notice either party may refer the matter to arbitration under paragraph 24.

(6) If the undertaker fails to serve a counter-notice or if it serves a counter-notice and the matter is either agreed between the Authority and the undertaker or determined pursuant to paragraph 14(5) then the provisions of paragraph 14(1) and (2) shall apply during such additional period as specified in the Authority’s notice or as may be agreed or determined pursuant to paragraph 14(5).

Protective action

15.—(1) If any tidal work is constructed or carried out—

(a) otherwise than in accordance with the requirements of this Part of this Schedule or with any condition in an approval given pursuant to paragraph 5; or

(b) during construction is found (when measured against any of the surveys carried out under paragraph 13(1)(a) and (b)) to give rise to sedimentation or scouring that is detrimental to traffic in, or the flow or regime of, the river,

then the Authority may by notice in writing require the undertaker at its own expense to comply with the remedial requirements specified in the notice.

(2) The requirements that may be specified in a notice given under paragraph 15(1) are—

(a) in the case of a tidal work to which paragraph 15(1)(a) applies, such requirements as may be specified in the notice for the purpose of giving effect to the requirements of—

(i) this Part of this Schedule; or

(ii) the condition that has been breached; or

(b) in any case within paragraph 15(1)(b), such requirements as may be specified in the notice for the purpose of preventing, mitigating or making good the sedimentation or scouring, so far as required by the needs of traffic in, or the flow or regime of, the river.

(3) If the undertaker does not comply with a notice under paragraph 15(1), or is unable to do so then the Authority may in writing require the undertaker to—–

(a) remove, or alter the tidal work, and where the tidal work is removed to restore the site of that work (to such extent as the Authority reasonably requires) to its former condition; or

(b) take such other action as the Authority may reasonably specify for the purpose of remedying the non-compliance to which the notice relates.

(4) If—

(a) the undertaker becomes aware that a tidal work is giving rise to environmental impacts over and above those reported in the environmental statement; or

(b) the Authority becomes aware that any tidal work is causing an environmental impact over and above those anticipated by the environmental statement and the Authority notifies the undertaker of that environmental impact, the reasons why the Authority believes that the environmental impact is being caused by a tidal work and of the measures that the Authority reasonably believes are necessary to counter or mitigate that environmental impact,

the undertaker shall implement the measures that the Authority has notified to the undertaker or shall implement such other measures as agreed between the undertaker and the Authority.

Obstruction in the river

16.—(1) If any pile, stump or other obstruction to navigation becomes exposed as a result of constructing any tidal work (other than a pile, stump or other obstruction on the site of a structure comprised in any permanent work), the undertaker shall, as soon as reasonably practicable after the receipt of notice in writing from the Authority requiring such action, remove it from the river or, if it is not reasonably practicable to remove it—

(a) cut the obstruction off at such level below the bed of the river as the Authority may reasonably direct; or

(b) take such other steps to make the obstruction safe as the Authority may reasonably require.

(2) If after such reasonable period as may be specified in a notice under this paragraph the 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, the Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing shall be recoverable from the undertaker.

Scour monitoring and mitigation

17.—(1) The undertaker shall submit a scour and accretion monitoring and mitigation strategy to the Authority for approval, such determination to be given—

(a) by 30th September 2014; or

(b) within 5 business days of this Order coming into force; or

(c) by the expiry of 20 business days from receipt of the submission made under this paragraph,

whichever is the latest.

(2) Prior to the commencement of any tidal work, a scour and accretion monitoring and mitigation plan for that tidal work shall be prepared by the undertaker in accordance with the scour and accretion monitoring and mitigation strategy approved under paragraph 17(1) or otherwise determined, and the scour and accretion monitoring and mitigation plan shall be submitted to the Authority for approval within 35 business days of the specified day.

(3) Following any submission of a scour and accretion monitoring and mitigation plan under paragraph 17(2), the approval process in paragraph 5 shall apply to such submission as if it were a submission under paragraph 5(1) and the “specified day” shall be the first business day on which such submission is received by the Authority under paragraph 17(2).

(4) The carrying out of any tidal work shall proceed only in accordance with the scour and accretion monitoring and mitigation plan as approved by the Authority under paragraph 17(2).

Abandoned or Decayed Works

18.—(1) If any tidal work or any other work of which the undertaker is in possession in exercise of any of the powers of this order (being a work which is below mean high water level) is abandoned or falls into decay, the Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either—

(a) to repair or restore the work, or any part of it; or,

(b) to remove the work and (to such extent as the Authority reasonably requires) to restore the site of the work to its former condition.

(2) If any tidal work is in such condition that it is, or is likely to become, a danger to or an interference with navigation in the river, the Authority may by notice in writing require the undertaker to take such reasonable steps as may be specified in the notice either—

(a) to repair and restore the work or part of it; or

(b) if the undertaker so elects, to remove the tidal work and (to such extent as the Authority reasonably requires) to restore the site of the work to its former condition.

(3) If after such reasonable period as may be specified in a notice under this paragraph the 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, the Authority may carry out the works specified in the notice and any expenditure reasonably incurred by it in so doing shall be recoverable from the undertaker.

Permanent works where land not acquired

19.—(1) Notwithstanding any rule of law, any permanent work that is constructed in, on under or over land that is not acquired by the undertaker shall remain vested in the undertaker and shall not be annexed to the land.

(2) The Authority will grant to the undertaker a licence under section 66 of the 1968 Act in respect of any work to which sub-paragraph (1) applies.

Facilities for navigation

20.—(1) The undertaker shall not in the exercise of the powers granted by this order interfere with any marks, lights or other navigational aids in the river without the agreement of the Authority, and shall ensure that access to such aids remains available during and following construction of any tidal works.

(2) The undertaker shall at any tidal works provide, or afford, reasonable facilities (including an electricity supply) for the Authority to provide at the undertaker’s cost, from time to time, such navigational lights, signals, radar, or other apparatus for the benefit, control and direction of navigation as the Authority may deem necessary by reason of the construction or carrying out of any tidal works, and shall ensure that access remains available to apparatus during and following construction of or carrying out of such works.

Indemnities, costs and exercise of DCO powers and compensation

21.—(1) The undertaker shall be responsible for and make good to the Authority all financial costs or losses not otherwise provided for in this Part of this Schedule which may reasonably be incurred or suffered by the Authority by reason of—

(a) the construction or operation of the authorised project or the failure of any works comprised within it;

(b) anything done in relation to a mooring or buoy pursuant to paragraph 10; or;

(c) any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction or operation of the authorised project or dealing with any failure of the authorised project;

(d) and the undertaker shall indemnify the Authority from and against all claims and demands arising out of or in connection with the authorised project or any such failure, act or omission.

(2) The fact that any act or thing may have been done—

(a) by the Authority on behalf of the undertaker; or

(b) by the undertaker, its employees, contractors or agents in accordance with plans or particulars submitted to or modifications or conditions specified by the Authority, or in a manner approved by the Authority, or under its supervision or the supervision of its duly authorised representative;

shall not (if it was done or required without negligence on the part of the Authority or its duly authorised representative, employee, contractor or agent) excuse the undertaker from liability under the provisions of this paragraph.

(3) In complying with the indemnity provisions pursuant to this paragraph the undertaker’s liability shall either be limited to a sum to be agreed between the parties or unlimited.

(4) The Authority shall give the undertaker reasonable notice of any such claim or demand as is referred to in sub-paragraph (1), and no settlement or compromise of any such claim or demand shall be made without the prior consent of the undertaker.

Maintenance dredging

22.  For the avoidance of doubt, section 73 of the 1968 Act shall apply to any maintenance dredging carried out by the undertaker.

Notifications

23.—(1) The undertaker shall serve notice in writing of any transfer made pursuant to Article 9 upon the Authority together with a copy of the instrument or deed effecting such transfer within 10 business days of any such transfer.

(2) The undertaker shall serve a copy of its application to discharge requirement PW4 in the Order upon the Authority within 10 business days of the submission of such application.

(3) The undertaker shall inform the Authority in writing of the intended start date and the likely duration of tidal works on a site at least 10 business days prior to the commencement of the first tidal work on that site.

(4) The undertaker shall serve notice in writing specifying the details of the vertical and horizontal alignment of any tunnelling works at least 10 business days prior to the carrying out of the tunnelling works to which the notice relates.

(5) Not less than 3 months after the completion of construction of any tidal work or any tunnelling works in the river the undertaker shall provide to the Authority plans and sections of the work as constructed.

Disputes

24.  Any dispute arising between the undertaker and the Authority under this Part of this Schedule shall be determined by arbitration in accordance with article 63 (arbitration) unless otherwise agreed in writing by the undertaker and the Authority.