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

SECTION 1 Protection of TfL Railway Companies

1.  The provisions of this Part of this Schedule shall have effect unless otherwise agreed in writing by the protected person and the undertaker.

2.  In this Part of this Schedule—

“approval” in relation to specified works means approval of the engineer appointed by the protected person whose protected property is affected by those works such approval not to be unreasonably withheld or delayed;

“construction” shall include reconstruction, altering, replacing, relaying, removal, maintenance and repair of the specified works;

“CRL” means Crossrail Limited, a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 04212657;

“CRL Property” means any lands held or used by CRL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which CRL is responsible for when the construction of the specified works commence;

“DLRL” means Docklands Light Railway Limited, a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 02052677;

“DLRL Property” means any lands held or used by DLRL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which DLRL is responsible for when the construction of the specified works commence;

“engineer” means the engineer appointed by each of the protected persons;

“LUL” means London Underground Limited a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 01900907;

“LUL Property” means any lands held or used by LUL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which LUL is responsible for when the construction of the specified works commence;

“Non-River DCO Works” means the authorised development and associated development and any ancillary works to be constructed on any land located outside of the River Areas;

“plans” includes sections, designs, drawings, specifications, soil reports, staging proposals, programmes, calculations, methods of construction, risk assessments and details of the extent, timing and duration of any proposed occupation of protected property and “approved plans” means plans approved or deemed to be approved or settled by arbitration in accordance with the provisions of this Part of this Schedule;

“protected person” means LUL or DLRL or RfL or CRL;

“protected property” means in relation to each protected person any lands held or used by that protected person for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which that protected person is responsible when the relevant specified works are begun;

“River Areas” means the areas comprising the rivers known as the River Thames and Deptford Creek and such areas include the bed, banks, sub-soil, foreshore and river walls of the River Thames and Deptford Creek but do not include works to the surface of structures over the River Areas;

“River DCO Works” means that part of the authorised development consisting of any works of excavation, piling, sinking or boreholes, tunnelling or other works carried out within the River Areas;

“RfL” means Rail for London Limited a company limited by shares and incorporated under the Companies Act 1985, whose registered number is 05965930; and

“RFL Property” means any lands held or used by RfL for the purposes of its operational undertaking, and any works, apparatus and equipment connected therewith for the maintenance or operation of which RfL is responsible for when the construction of the specified works commence;

“the specified works” means

(a)

so much of any Non-River DCO Works as may be situated within 15 metres (measured in any direction) of the CRL Property, DLRL Property, LUL Property or RfL Property or may in any way affect CRL Property, DLRL Property, LUL Property or RfL Property; and

(b)

so much of any River DCO Works as may be situated within, 50 metres (measured in any direction) of CRL Property, DLRL Property, LUL Property or RfL Property within the River Areas, or may in any way affect CRL Property, DLRL Property, LUL Property, or RfL Property.

3.—(1) The undertaker shall not under the powers conferred by or under this Order without the consent of the protected person, acquire or enter upon, take or use whether temporarily or permanently or acquire any new rights over protected property.

(2) The undertaker shall not exercise the powers under article 22 above or the powers under section 11(3) of the 1965 Act, in respect of any protected property except with the consent of the protected person.

4.—(1) The undertaker shall, before commencing the specified works, furnish to the protected person such proper and sufficient plans of the specified works as may reasonably be required for the approval of the engineer and shall not commence the specified works until the plans have been approved in writing by the engineer or settled by arbitration.

(2) If, within a period of 56 days beginning with the date on which plans have been furnished to the protected person under sub-paragraph (1) above, the engineer has not notified their disapproval and the grounds of their disapproval, they shall be deemed to have approved the plans as submitted.

(3) If the undertaker, in the course of carrying out specified works on protected property (i) uses any materials that the engineer considers inferior or unfit for the purpose intended, (ii) executes any work which will have an adverse effect on the safe and efficient operation of the railway or (iii) makes any material deviation from materials approved by the engineer, then the protected person shall give notice to the undertaker that the protected person desires itself to construct that part of the specified works which in the opinion of the engineer will or may affect the stability of, or the safe operation of protected property, then, provided that the protected person has first given the undertaker the opportunity to remedy the specified works , if the undertaker desires such part of the specified works to be constructed, the protected person shall construct it with all reasonable dispatch on behalf of and to the reasonable satisfaction of the undertaker in accordance with approved plans.

(4) Upon signifying their approval of the plans the engineer may specify any protective works, whether temporary or permanent, which in their opinion should be carried out before the commencement of the specified works to ensure the stability of protected property, the continuation of the safe and effective operation of the protected person’s operational undertaking including any relocation of works, apparatus and equipment necessitated by the specified works and the comfort and safety of passengers or customers, and such protective works as may be reasonably necessary for those purposes shall be constructed with all reasonable dispatch, and the undertaker shall not commence the construction of the specified works until the engineer has notified the undertaker that the protective works have been completed.

5.—(1) The undertaker shall give to the engineer not less than 56 days’ notice of its intention to commence the construction of any of the specified works and also, except in an emergency (when it shall give such notice as may be reasonably practicable), of its intention to carry out any works for the repair or maintenance of the specified works in so far as such works of repair or maintenance affect or interfere with protected property.

(2) The specified works shall, when commenced, be carried out—

(a) with all reasonable dispatch in accordance with approved plans;

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

(c) in such manner as to cause—

(i) as little damage as may be to protected property, and

(ii) as little interference as may be with the conduct of protected person’s operation and the use by passengers or customers of its property.

(3) If any damage to protected property or any such interference is caused by the carrying out of the specified works, the undertaker shall, notwithstanding any such approval as aforesaid, make good such damage and shall pay to the protected person all reasonable expenses to which the protected person may be put and compensation for any loss which the protected person may sustain by reason of any such damage or interference.

(4) Nothing in this paragraph shall impose any liability on the undertaker with respect to any damage, cost, expense or loss to the extent that such damage, cost expense or loss is attributable to the act, neglect or default of a protected person or its servants or agents.

6.  Without prejudice to the generality of paragraphs 4 and 5 above a protected person may, in approving the plans of or in supervising the carrying out of the specified works or of any protective works carried out by the undertaker by virtue of the provisions of paragraph 5(3) above, require that—

(a) nothing shall be done by or on behalf of the undertaker which unreasonably impedes the free, uninterrupted and safe flow of passengers or customers;

(b) dust sheets and other works and working methods are used so as to prevent so far as practicable any dust or dirt from the relevant works affecting such persons; and

(c) adequate signing of all alterations of routes for such persons and of any hazards or obstructions to the free movement of such persons is provided.

7.  The undertaker shall at all times afford reasonable facilities to the engineer for access to the specified works during their construction and shall supply him with all such information as he may reasonably require with regard to those specified works or the method of construction thereof.

8.  During the construction of any part of the specified works under this Part of this Schedule by a protected person under this Part of this Schedule, the protected person shall at all times afford reasonable facilities to the undertaker and its agents for access to those works, and shall supply the undertaker with such information as they may reasonably require with regard to such works or the method of construction thereof.

9.—(1) If any alterations or additions either permanent or temporary, to protected property are reasonably necessary during the construction of the specified works, or during a period of 12 months after the completion thereof, in consequence of the construction of the specified works, then, provided the protected person has first given the undertaker the opportunity to carry out the protective works itself, such alterations and additions may be carried out by the protected person after giving the undertaker reasonable notice of its intention to carry out such alterations or additions and the undertaker shall pay the protected person the reasonable cost thereof as certified by the engineer, including in respect of permanent alterations and additions a capitalised sum representing any increase in the costs which may be expected to be reasonably incurred by the protected person in maintaining, working and, when necessary, renewing any such alterations or additions.

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

10.  The undertaker shall repay to any protected person all costs, charges and expenses reasonably incurred by the protected person—

(a) in constructing any part of the specified works on behalf of the undertaker or any protective works under the provisions of paragraph 3 above, including, in respect of any permanent protective works, a capitalised sum representing the costs which may be expected to be reasonably incurred by the protected person in maintaining and renewing such works;

(b) in respect of the employment of any inspectors, signalmen, watchmen and other persons whom it is reasonably necessary to appoint for inspecting, signalling, watching and lighting its protected property in order to prevent, so far as may be reasonably practicable, interference, obstruction, danger or accident arising from the construction or failure of the specified works;

(c) resulting from any speed restrictions which in the opinion of the engineer are necessary by reason of the construction or failure of the specified works, any delays to services or from the substitution of services which may be reasonably necessary for the same reason, including loss of revenue;

(d) in respect of any additional temporary lighting of its protected property in the vicinity of the specified works, being lighting made reasonably necessary by reason of the construction or failure of the specified works; and

(e) in respect of the consideration of plans and the supervision by the engineer of the construction of the specified works.

11.—(1) In this paragraph—

“apparatus” means any lines, circuits, wires or equipment (whether or not modified or installed as part of the authorised development) which are owned or used by a protected person for the purpose of transmitting or receiving electrical energy or of radio, telegraphic, telephonic, electric, electronic or other like means of signalling or other communications; and

“EMI” means electromagnetic interference with apparatus generated by construction of the authorised development where such interference is of a level which adversely affects the safe operation of apparatus.

(2) Subject to sub-paragraph (4), the undertaker shall in the design and construction of the authorised development take all measures necessary to prevent EMI and shall establish with the protected person (both parties acting reasonably) appropriate arrangements to verify their effectiveness.

(3) In order to facilitate the undertaker’s compliance with sub-paragraph (2)—

(a) the undertaker shall consult with the protected person as early as reasonably practicable to identify all apparatus which may be at risk of EMI, and thereafter shall continue to consult with the protected person (both before and after formal submission of plans under paragraph 3(1)) in order to identify all potential causes of EMI and the measures required to eliminate them;

(b) the protected person shall make available to the undertaker all information in the possession of the protected person reasonably requested by the undertaker in respect of the apparatus identified pursuant to sub-paragraph(a); and

(c) the protected person shall allow the undertaker reasonable facilities for the inspection of apparatus identified pursuant to sub-paragraph(a).

(4) In any case where it is established that EMI can only reasonably be prevented by modifications to apparatus, the protected person shall not withhold its consent unreasonably to modifications of apparatus, but the means of prevention and the method of their execution shall be selected in the reasonable discretion of the protected person, and in relation to such modifications paragraph 3(1) shall have effect subject to the sub-paragraph.

(5) If at any time prior to the commencement of construction of the authorised development and notwithstanding any measures adopted pursuant to sub-paragraph (2), the construction of the authorised development causes EMI then the undertaker shall immediately upon receipt of notification by the protected person of such EMI either in writing or communicated orally (such oral communication to be confirmed in writing as soon as reasonably practicable after it has been issued) forthwith cease to use (or procure the cessation of use of) the undertaker’s equipment causing such EMI until all measures necessary have been taken to remedy such EMI by way of modification to the source of such EMI or (in the circumstances, and subject to the consent, specified in sub-paragraph (4)) to the apparatus.

(6) In the event of EMI having occurred—

(a) the undertaker shall afford reasonable facilities to the protected person for access to the undertaker’s equipment in the investigation of such EMI;

(b) the protected person shall afford reasonable facilities to the undertaker for access to the apparatus in the investigation of such EMI; and

(c) the protected person shall make available to the undertaker any additional material information in its possession reasonably requested by the undertaker in respect of apparatus or such EMI.

(7) Where the protected person approves modifications to apparatus pursuant to sub-paragraphs (4) or (5)—

(a) the protected person shall allow the undertaker reasonable facilities for the inspection of the relevant part of the apparatus; and

(b) any modifications to apparatus approved pursuant to those sub-paragraphs shall be carried out and completed by the undertaker in accordance with paragraph 4.

(8) To the extent that it would not otherwise do so, the indemnity in paragraph 14(1) shall apply to the costs and expenses reasonably incurred or losses suffered by the protected person through the implementation of the provisions of this paragraph (including costs incurred in connection with the consideration of proposals, approval of plans, supervision and inspection of works and facilitating access to apparatus) or in consequence of any EMI to which sub-paragraph (5) applies.

(9) For the purpose of paragraph 9 any modifications to apparatus under this paragraph shall be deemed to be protective works referred to in that paragraph.

(10) In relation to any dispute arising under this paragraph the reference in article 63 (Arbitration) to the Institution of Civil Engineers shall be read as a reference to the Institution of Electrical Engineers.

12.  If at any time after the completion of a specified work, not being a work vested in the protected person, the protected person gives notice to the undertaker informing it that the state of maintenance of any part of the specified work appears to be such as adversely affects the operation of protected property, the undertaker shall, on receipt of such notice, take such steps as may be reasonably necessary to put that specified work in such state of maintenance as not adversely to affect protected property.

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

Third party and other costs

14.—(1) The undertaker shall be responsible for and make good to the protected person, all costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule which may be occasioned to, or reasonably incurred by, the protected person—

(a) by reason of the construction of the specified works or the failure thereof, or

(b) by reason of any act or omission of the undertaker, of any person in its employ, or of its contractors or others whilst engaged upon the construction of the specified works,

and the undertaker shall indemnify the protected person from and against all such claims and demands arising out of or in connection with the construction of the specified works or any such failure, act or omission, and the fact that any act or thing may have been done in accordance with any requirement of the engineer or under their supervision, shall not (if it was not attributable to the act, neglect or default of the protected person, or of any person in their employ, or of their contractors or agents) excuse the undertaker from any liability under the provisions of this Part of this Schedule.

(2) The protected person shall give to the undertaker reasonable notice of any claim or demand as aforesaid and no settlement or compromise thereof shall be made without the prior consent of the undertaker such consent not to be unreasonably withheld.

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

(4) Subject to the terms of any agreement between the protected person and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, the protected person shall promptly pay to each train operator the amount of any sums which the protected person receives under sub-paragraph (1) which relates to the relevant costs of that train operator.

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

(6) In this paragraph—

“the relevant costs” means the costs, direct losses and expenses (including loss of revenue) incurred by a train operator as a consequence of any restriction of the use of a protected persons railway network as a result of the construction, maintenance or failure of a specified work, or any such act or omission as mentioned in sub-paragraph (1); and

“train operator” means any person who is authorised to act as the operator of a train over the railway network of a protected person.

15.  Any difference arising between the undertaker and a protected person under this Part of this Schedule (other than a difference as to the meaning or construction of this Part of this Schedule) shall be resolved by arbitration under article 63 (arbitration).