The Network Rail (Suffolk Level Crossing Reduction) Order 2020

SCHEDULE 2A (1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over a house, building or factory. (2) In this Schedule, “house” includes any park or garden belonging to a house. (3) A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner’s interest in the house, building or factory. (4) A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served. (5) On receiving a counter-notice, the authority must decide whether to— (a) withdraw the notice to treat, (b) accept the counter-notice, or (c) refer the counter-notice to the Upper Tribunal. (6) The authority must serve notice of its decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”). (7) If the authority decides to refer the counter-notice to the Upper Tribunal it must do so within the decision period. (8) If the authority does not serve notice of a decision within the decision period it is to be treated as if it had served notice of a decision to withdraw the notice to treat at the end of that period. (9) If the authority serves notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in the house, building or factory. (10) On a referral under paragraph 7, the Upper Tribunal must determine whether the acquisition of the right would— (a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or (b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs. (11) In making its determination, the Upper Tribunal must take into account— (a) the effect of the acquisition of the right, (b) the use to be made of the right proposed to be acquired, and (c) if the right is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land. (12) If the Upper Tribunal determines that the acquisition of the right would have either of the consequences described in paragraph 10, it must determine how much of the house, building or factory the authority ought to be required to take. (13) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the compulsory purchase order and the notice to treat are to have effect as if they included the owner’s interest in that land. (14) (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land. (2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice. (3) Any dispute as to the compensation is to be determined by the Upper Tribunal.

SCHEDULE 9 — FOR THE PROTECTION OF DRAINAGE AUTHORITIES AND THE ENVIRONMENT AGENCY

1

• (1) The following provisions of this Schedule apply for the protection of the drainage authority unless otherwise agreed in writing between Network Rail and the drainage authority.

• (2) In this Schedule—

• “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 Order (which includes any dredging and any geotechnical investigations that may be undertaken) consists of— erecting any structure (whether temporary or permanent) in, over or under a main river if the work is likely to affect any drainage work which is or includes a main river or the volumentric rate of flow of water in or flowing to or from any main river; the carrying out of any work of alteration or repair of any structure (whether temporary or permanent) in, over or under a main river if the work is likely to affect the flow of water in the main river or to affect any drainage work; erecting or altering any structure (whether temporary or permanent) designed to contain or divert the floodwaters of any part of a main river; or any work or operation that is in, on, under, over or within 16 metres of a drainage work which is or includes a main river or is otherwise likely to affect any such drainage work or the volumetric rate of flow of water in or flowing to or from any drainage work.

• “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 any ordinary watercourse; altering a culvert in a manner that would be likely to affect the flow of any 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[^f00052];

• “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 (prohibition on obstructions etc in watercourses) of the Land Drainage Act 1991[^f00053].

• “drainage work” means any watercourse and includes any land which provides or is expected to provide flood storage capacity for any watercourse and any bank, wall, embankment or other structure, or any appliance, constructed or used for land drainage, flood defence or tidal monitoring;

• “the fishery” means any waters containing fish and fish in such waters and the spawn, habitat or food of such fish;

• “a main river” and “ordinary watercourse” have the meanings given by respectively the Water Resources Act 1991[^f00054] and the Land Drainage Act 1991;

• “plans” includes sections, drawings, specifications and method statements;

• “specified work” means a category 1 specified work or a category 2 specified work.

2

• (1) Before beginning to construct any specified work, Network Rail must submit to the drainage authority plans of the specified work and such further particulars available to it as the drainage authority may within 28 days of the receipt 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 11.

• (3) Any approval of the drainage authority required under this paragraph—

• (a) must not be unreasonably withheld;

• (b) is deemed to have been given if it is neither given nor refused within 2 months of the receipt of the plans for approval and, in the case of a refusal, accompanied by a statement of the grounds of refusal; and

• (c) may be given subject to such reasonable requirements as the drainage authority may make for the protection of any drainage work, fishery, water resources, or for the prevention of flooding or pollution or in the discharge of its environmental duties.

• (4) The drainage authority must use its reasonable endeavours to respond to the submission of any plans before the expiration of the period mentioned in sub-paragraph (3)(b).

3

Without limitation on the scope of paragraph 2, the requirements which the drainage authority may make under that paragraph include conditions requiring Network Rail at its own expense to construct such protective works, whether temporary or permanent, before or during the construction of the specified works (including the provision of flood banks, walls or embankments or other new works and the strengthening, repair or renewal of existing banks, walls or embankments) 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 any specified work.

4

• (1) Subject to sub-paragraph (2), any specified work, and all protective works required by the drainage authority under paragraph 3, must be constructed—

• (a) without unnecessary delay in accordance with the plans approved or deemed to have been approved under this Schedule; and

• (b) to the reasonable satisfaction of the drainage authority,

and an officer of the drainage authority is entitled to watch and inspect the construction of such works.

• (2) Network Rail must give to the drainage authority not less than 14 days’ notice in writing of its intention to commence construction of any specified work and notice in writing of its completion not later than 7 days after the date on which it is completed.

• (3) If any part of a specified work or any protective work required by the drainage authority is constructed otherwise than in accordance with the requirements of this Schedule, the drainage authority may by notice in writing require Network Rail at Network Rail’s own expense to comply with the requirements of this Schedule or (if Network Rail so elects and the drainage authority in writing consents, such consent not to be unreasonably withheld or delayed) 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) and paragraph 7, if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (3) is served upon Network Rail, 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 incurred by it in so doing is recoverable from Network Rail.

• (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.

• (6) If by reason of construction of the specified work the Agency’s access to flood defences or equipment maintained for flood defence purposes is materially obstructed, Network Rail must provide such alternative means of access to allow the Agency to maintain the flood defence or use the equipment no less effectively than before the obstruction.

5

Subject to paragraph 7, 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 drainage work is otherwise damaged, such impairment or damage must be made good by Network Rail to the reasonable satisfaction of the drainage authority and if Network Rail fails to do so, the drainage authority may make good the same and recover from Network Rail the expense reasonably incurred by it in so doing.

6

• (1) Network Rail must take all such measures as may be reasonably practicable to prevent any interruption of the free passage of fish in the 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 drainage authority has reason to expect that such damage may be caused, the drainage authority may serve notice on Network Rail 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) Subject to paragraph 8, if within such time as may be reasonably practicable for that purpose after the receipt of written notice from the drainage authority of any damage or expected damage to a fishery, Network Rail fails to take such steps as are described in sub-paragraph (2), the drainage authority may take those steps and may recover from Network Rail the expense reasonably incurred by it in doing so.

• (4) Subject to paragraph 7, in any case where immediate action by the drainage authority is reasonably required in order to secure that the risk of damage to the fishery is avoided or reduced, the drainage authority may take such steps as are reasonable for the purpose, and may recover from Network Rail the reasonable cost of so doing provided that notice specifying those steps is served on Network Rail as soon as reasonably practicable after the drainage authority has taken, or commenced to take, the steps specified in the notice.

7

Nothing in paragraphs 4(4), 5, 6(3) and (4) authorises the drainage authority to execute works on or affecting an operational railway forming part of Network Rail’s network without the prior consent in writing of Network Rail such consent not to be unreasonably withheld or delayed.

8

Network Rail must indemnify the drainage authority in respect of all costs, charges and expenses which the drainage authority may reasonably incur or have to pay or which it may sustain—

• (a) in the examination or approval of plans under this Schedule; and

• (b) in the inspection of the construction of the specified works or any protective works required by the drainage authority under this Schedule.

9

• (1) Without affecting the other provisions of this Schedule, Network Rail must indemnify the drainage authority from all claims, demands, proceedings, costs, charges, penalties, damages, expenses and losses, which may be made or taken against, recovered from, or incurred by, the drainage authority by reason of—

• (a) any damage to any drainage work so as to impair its efficiency for the purposes of flood defence;

• (b) any damage to the fishery;

• (c) any raising or lowering of the water table in land adjoining the authorised development or any sewers, drains and watercourses;

• (d) any flooding or increased flooding of any such lands, or

• (e) inadequate water quality in any watercourse or other surface waters or in any groundwater,

which is caused by the construction of any of the specified works or any act or omission of Network Rail, its contractors, agents or employees whilst engaged upon the work.

• (2) The drainage authority must give to Network Rail reasonable notice of any such claim or demand and no settlement or compromise may be made without the agreement of Network Rail which agreement must not be unreasonably withheld or delayed.

10

The fact that any work or thing has been executed or done by Network Rail in accordance with plans approved by the drainage authority, or to the drainage authority’s satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve Network Rail from any liability under the provisions of this Schedule.

11

Any dispute arising between Network Rail and the drainage authority under this Schedule, if the parties agree, is to be determined by arbitration under article 34 (arbitration), but otherwise is to be determined by the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Transport acting jointly on a reference to them by Network Rail or the drainage authority, after notice in writing by one to the other.

Signed

Signed by authority of the Secretary of State for Transport

Natasha Kopala — Head of the Transport and Works Act Orders Unit — Department for Transport — 29th December 2020

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order confers powers on Network Rail to stop up or downgrade the level crossings specified in Schedule 1 and for the temporary use of land in connection with the construction and maintenance of public rights of way where these are provided to replace the crossings.

The Order authorises the construction of works in connection with the closure of the level crossings, the extinguishment of existing public and private rights of way and the creation of alternative rights of way.

A copy of the deposited plans and the book of reference referred to in the Order may be inspected, on request, at the offices of Network Rail Infrastructure Limited at Network Rail National Records Centre, Unit 5, Audax Road, Clifton Moor, York YO30 4US.

Footnotes

[^f00001]: S.I. 2006/1466, as amended by S.I. 2010/439, S.I. 2011/556, S.I. 2011/2085, S.I. 2012/147, S.I. 2012/1658, S.I. 2012/2590, S.I. 2013/755, S.I. 2014/469, S.I. 2015/377, S.I. 2015/627, S.I. 2015/1682, S.I. 2017/979 and S.I 2017/1070.

[^f00002]: 1992 c. 42. Section 1 was amended by paragraphs 51 and 52 of Schedule 2 to the Planning Act 2008 (c. 29). Section 5 was amended by S.I. 2012/1659.

[^f00003]: 1961 c. 33.

[^f00004]: 1965 c. 56.

[^f00005]: 1980 c. 66.

[^f00006]: 1981 c. 66.

[^f00007]: 1984 c. 27.

[^f00008]: 1990 c. 8.

[^f00009]: 1991 c. 22.

[^f00010]: 1981 c. 69.

[^f00011]: The definition of “cycle track” in section 329(1) was amended by section 1 of the Cycle Tracks Act 1984 (c. 38) and paragraph 21(2) of Schedule 3 to the Road Traffic (Consequential Provisions) Act 1988 (c. 54).

[^f00012]: 2003 c. 21. Section 32(1) was amended by S.I. 2011/1210.

[^f00013]: 1981 c. 67. The definition or “owner” was amended by paragraph 9 of Schedule 15 to the Planning and Compensation Act 1991 (c. 34).

[^f00014]: Section 64 was amended by section 102 of, and Schedule 17 to, the Local Government Act 1985 (c. 51) and section 168(2) of, and Schedule 9 to, the 1991 Act.

[^f00015]: Sections 60, 68 and 69 were amended by section 40(1) and (2) of, and Schedule 1 to, the Traffic Management Act 2004 (c.18).

[^f00016]: Section 59 was amended by section 42 of the Traffic Management Act 2004.

[^f00017]: S.I. 2016/1154.

[^f00018]: 1991 c. 59. Section 23 was amended by paragraph 192 of Schedule 22 of the Environment Act (c. 25), paragraphs 25 and 32 of Schedule 2 to the Flood and Management Act 2010 (c. 29) and S.I. 2013/755.

[^f00019]: Section 66 was amended by paragraphs 25 and 38 of Schedule 2 to the Flood and Water Management Act 2010 and section 86(1) and (3) of the Water Act 2014 (c. 21).

[^f00020]: 2017 c. 20.

[^f00021]: 1981 c. 69.

[^f00022]: Section 28 was amended by S.I. 2006/1177.

[^f00023]: 1981 c. 69. Section 53(1) was amended by paragraph 1(1) and (2) of Schedule 5 to the Countryside and Rights of Way Act 2000 (c. 37).

[^f00024]: 1991 c. 56. Section 106 was amended by sections 35(1) and (8) and 43(2) of, and Schedule 2 to, the Competition and Service (Utilities) Act 1992 (c. 43), sections 36(2) and 99 of the Water Act 2003 (c. 37) and paragraph 16(1) of Schedule 3 to the Flood and Water Management Act 2010 (c. 29).

[^f00025]: S.I. 2016/1154.

[^f00026]: 1991 c. 57.

[^f00027]: O.J. No. L 26, 28.1.2012, p. 1.

[^f00028]: O.J. No. L 206, 22.7.1992, p. 7.

[^f00029]: 1981 c. 67.

[^f00030]: Section 4A(1) was inserted by section 202(1) of the Housing and Planning Act 2016 (c. 22).

[^f00031]: Section 11(1B) was inserted by section 186(1) and (2)(b) of the Housing and Planning Act 2016.

[^f00032]: Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016.

[^f00033]: Schedule 2A was inserted by paragraph 3 of Schedule 17 to the Housing and Planning Act 2016.

[^f00034]: Section 5A was inserted by section 182(2) of the Housing and Planning Act 2016.

[^f00035]: Section 5B was inserted by section 202(2) of the Housing and Planning Act 2016.

[^f00036]: section 6 was amended by paragraph 52(2) of Schedule 2 to the Planning (Consequential Provisions) Act 1990 (c. 11) and paragraph 7 of Schedule 15 to the Housing and Planning Act 2016.

[^f00037]: Section 7 was amended by paragraph 3 of Schedule 18 to the Housing and Planning Act 2016.

[^f00038]: Schedule A1 was inserted by paragraph 6 of Schedule 18 to the Housing and Planning Act 2016.

[^f00039]: Section 10 was amended by section 4 of, and paragraph 13(2) of Schedule 2 to, the Planning (Consequential Provisions) Act 1990 (c. 11) and S.I. 2009/1307.

[^f00040]: Section 13 was amended by sections 62(3) and 139 of, and paragraphs 27 and 28 of Schedule 13, and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

[^f00041]: Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measures 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

[^f00042]: 1981 c. 66.

[^f00043]: Section 65 was amended by section 153 of the Local Government and Housing Act 1989 (c. 42), section 168(1) of, and paragraph 48(2) of Part 2 of Schedule 8 to, the 1991 Act, section 48 of, and paragraph 29 of Schedule 4 to, the Road Traffic Act 1991 (c. 40) and section 1(6) of, and paragraphs 70 and 82 of Schedule 1 to, the Infrastructure Act 2015 (c. 7).

[^f00044]: 1978 c. 30.

[^f00045]: 1973 c. 26.

[^f00046]: Section 11 was amended by section 34(1) of, and Schedule 4 to, the Acquisition of Land Act 1981 (c. 67), section 3 of, and Part 1 of Schedule 1 to, the Housing (Consequential Provisions) Act 1985 (c. 71), section 14 of, and paragraph 12(1) of Schedule 5 to, the Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), sections 186(2), 187(2) and 188 of, and paragraph 6 of Schedule 14 and paragraph 3 of Schedule 16 to, the Housing and Planning Act 2016 (c. 22) and S.I. 2009/1307.

[^f00047]: Section 11A was inserted by section 186(3) of the Housing and Planning Act 2016.

[^f00048]: Section 11B was inserted by section 187(3) of the Housing and Planning Act 2016.

[^f00049]: Section 12 was amended by section 56(2) of, and Part 1 of Schedule 9 to, the Courts Act 1971 (c. 23) and paragraph 4 of Schedule 16 to the Housing and Planning Act 2016.

[^f00050]: Section 13 was amended by sections 62(3), 139(4) to (9) and 146 of, and paragraphs 27 and 28 of Schedule 13 and Part 3 of Schedule 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15).

[^f00051]: Section 20 was amended by section 70 of, and paragraph 4 of Schedule 15 to, the Planning and Compensation Act 1991 (c. 34) and S.I. 2009/1307.

[^f00052]: 2010 c. 29.

[^f00053]: 1991 c. 59.

[^f00054]: 1991 c. 57.