Office of Public Sector Information
Commentary on Sections and Schedules
Section 25: Award of Crossrail franchises to public-sector operators
Section 26: Disapplication of franchising and access exemptions
Section 29: Power to designate persons as “protected railway companies”
Section 32: Arbitration under section 30(3): multiple proceedings
Section 34: Application of section 122 of the Railways Act 1993
Schedule 6 – Acquisition of land shown within limits on deposited plans
Schedule 8 – Extension of Permitted Development Rights: supplementary provisions
Schedule 9 – Heritage: disapplication and modification of controls
Schedule 13 – Transfer schemes : tax provisions (tax provisions relating to transfer schemes)
Schedule 14 - Disapplication and modification of miscellaneous controls
Schedule 15 - Burial grounds: removal of human remains and monuments
22 July 2008
1.These explanatory notes relate to the Crossrail Act 2008 ("the Act") which received Royal Assent on 22 July 2008. They have been prepared by the Department for Transport in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.
2.The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.
3.The main purpose of this Act is to secure the powers necessary to build Crossrail. Crossrail will consist of new rail tunnels running west-east through central London connecting directly with existing surface rail routes to Maidenhead and Heathrow in the west and Shenfield and Abbey Wood in the east. By connecting the major London rail terminals of Paddington and Liverpool Street, Crossrail will enable interconnecting mainline train services to cross the centre of London via a number of new purpose-built stations.
4.The Bill for the Act was treated during its passage through Parliament as a Hybrid Bill, because it contained provisions which have an impact on the interests of particular individuals, as well as containing provisions of a more general public nature. A Hybrid Bill is a Public Bill promoted by the Government which affects particular private interests in a way different from the generality of people affected by the Bill.
5.This treatment meant that individuals, groups and organisations who were especially and directly affected by the Bill had an opportunity to oppose it or to seek its amendment before a Select Committee in each House of Parliament. A special report of the House of Commons Crossrail Select Committee was published on 18 October 2007 and can be found at http://www.publications.parliament.uk/pa/cm/cmcross.htm#reports; the corresponding report of the House of Lords Crossrail Select Committee was published on 27 May 2008 and can be found at http://www.parliament.the-stationery-office.co.uk/pa/ld200708/ldselect/ldcross/112/11202.htm. The House of Commons Information Office Factsheet on Hybrid Bills (L5) can be found at http://www.parliament.uk/documents/upload/l05.pdf.
6.The Act comprises 58 sections and 17 Schedules. The main provisions of the Act provide for:
the authorisation of works necessary to build Crossrail and associated works. These powers are vested in “the nominated undertaker” and the Act gives the Secretary of State the ability to nominate that undertaker. The Department for Transport is currently being assisted in taking the project forward by Cross London Rail Links Limited (CLRL) – a Department for Transport/Transport for London joint venture company. Binding agreements setting out the final form of project delivery including the letting and management of major construction contracts were being negotiated at the time of Royal Assent to the Act, and so flexibility in respect of project control is contained in the Act. However, a non-binding Heads of Terms agreement between the Secretary of State for Transport and Transport for London concerning the project was made available to Parliament and to the public generally during the passage of the Bill (see www.dft.gov.uk/pgr/rail/pi/crossrail/crossrailheadsofterms);
the acquisition of land and interests in land necessary for those works. The powers of compulsory purchase provided by the Act are vested in the Secretary of State but could also be transferred to the Greater London Authority or Transport for London, again to provide flexibility in implementation. The compulsory purchase powers in the Act expire five years after Royal Assent, though they could be extended;
the establishment of a planning and heritage regime for the works. The former seeks to give local planning authorities and the various statutory bodies an appropriate degree of control over the planning aspects of the project (and is augmented by other arrangements, such as a Planning Memorandum and a Construction Code of Practice, designed to sit alongside the legislative provisions). Heritage issues are also the subject of separate agreements with English Heritage and local authorities;
the application of existing railway and other miscellaneous legislation to Crossrail. This includes provision for two new duties for the Office of Rail Regulation which are relevant in respect of Crossrail and its interface with the existing network;
the transfer by a scheme of property, rights and liabilities from CLRL or the Secretary of State, or their wholly-owned subsidiaries, or, with their consent, the Greater London Authority, Transport for London, the London Development Agency or any of their subsidiaries, that may be necessary to ensure that the nominated undertaker is capable of delivering the project; and
the devolution of control of the Crossrail project to the Greater London Authority or Transport for London (or a combination of the two).
7.A copy of the 1996 Act can be found at http://www.opsi.gov.uk/ACTS/acts1996/1996061.htm.
8.Section 1(1) authorises the nominated undertaker to construct and maintain the works necessary for Crossrail. The principal works necessary – the so called “scheduled works” – are listed in Schedule 1 and are also shown on the plans and sections deposited with the Crossrail Bill on its introduction.
9.Section 1(2) requires, subject to section 1(3), the scheduled works to be constructed in the lines or situations, and on the levels, shown on the deposited plans and sections. The plans and sections therefore give an indication of where the works will be constructed. Also, if in the case of a station, depot or shaft, the deposited sections show an upper limit, the relevant works must be constructed within that limit.
10.Section 1(3) allows the nominated undertaker to construct or maintain a scheduled work in a different lateral position from that shown on the plans, as long as it is within the area shown for the work on the plans (the “limit of deviation” for the work). This flexibility, and the flexibility provided by sections 1(4) and 1(5), is customary in Acts for railway projects and reflects the fact that some movement may be necessary, for example to avoid hidden obstacles that are only discovered once construction is underway.
11.Section 1(4) allows the nominated undertaker to deviate in respect of works to any extent downwards.
12.Section 1(5) allows the nominated undertaker to deviate in respect of works upwards to an extent of three metres, save in respect of the works identified in section 1(5)(a) where the upward limit of deviation is six metres.
13.However, section 1(6) provides that where an upper limit for a station, depot or shaft is shown on the deposited sections, the power to deviate is subject to that upper limit.
14.Section 2 brings into effect Schedule 2, which contains additional provisions about the works which may be carried out, primarily to facilitate the main effort of construction of the scheduled works.
15.Section 3 brings into effect Schedule 3, which contains provisions dealing with the highway works necessary for Crossrail.
16.Section 4(1) disapplies the normal consents regime established under the Electricity Act 1989 for the installation of overhead electric lines on land that is within the limits of deviation for the scheduled works or the land required for Crossrail (the “limit of land to be acquired or used”). The limits of deviation and the limit of land to be acquired or used taken together are referred to in these Explanatory Notes as “the Act limits”.
17.Section 4(2) brings into effect Schedule 4, which establishes a replacement consents regime for such lines.
18.Section 4(3) provides that once the consent granted under Schedule 4 is revoked or expires, the line to which it relates will revert to being subject to the Electricity Act 1989.
19.Section 4(4) provides that any consent granted under Schedule 4 by the Secretary of State for Transport and the Secretary of State for Business, Enterprise and Regulatory Reform, acting jointly, may include the grant of deemed planning permission, with or without conditions.
20.Section 5 brings into effect Schedule 5, which contains provisions dealing with the temporary possession and use of land required for Crossrail.
21.Section 6(1) authorises the Secretary of State, rather than the nominated undertaker, to acquire compulsorily the land required for Crossrail within the Act limits.
22.Section 6(2) provides that, without prejudice to the general power granted by section 6(1), the land identified in columns (1) and (2) of the table in Part 1 of Schedule 6 may be acquired or used for the purpose set out in column (3) of the table. This table therefore gives an indication of the purposes for which certain parcels of land may be acquired or used (for example, for utility diversions, means of access, or for a worksite).
23.Section 6(3) brings into effect Parts 2 and 3 of Schedule 6, which deal with the application of legislation relating to compulsory purchase and supplementary provisions.
24.Section 6(4) provides that the power granted by subsection (1) shall not apply to land if the surface of the land is comprised in a highway and the land is specified in the table in paragraph 15(2) of Schedule 3.
25.Section 6(5) provides that the power granted by subsection (1) shall not apply to any land shown as being required temporarily, unless the land is also specified in paragraph 11(1) of Schedule 6. In that case the power does extend to the acquisition of subsoil at a depth greater than 9 metres from the surface of such land.
26.Section 6(6) provides that the compulsory purchase power granted by subsection (1) shall expire 5 years after the Act obtained Royal Assent.
27.Section 6(7) allows the Secretary of State, by order, to extend the time limit in subsection (6). This extension may be done only once in relation to any particular bit of land, and the time limit may be extended by no more than five years. Any such order is subject to special parliamentary procedure.
28.Section 7(1) allows the Secretary of State to acquire compulsorily land outside the Act limits, if it is needed in connection with Crossrail.
29.Section 7(2) and (3) enable the Secretary of State to acquire land within the Act limits, if it is needed in connection with Crossrail, but restrict the power so that it only applies where the power under section 6(1) does not. The difference between the two powers is that the former requires the making of a compulsory purchase order, whereas the latter does not (see paragraph 2 of Schedule 6).
30.Section 7(4) makes it clear that land may be acquired under these provisions for certain purposes, such as for the relocation of drainage or utility undertakers’ apparatus, which can sometimes be needed some distance from the line of the railway itself, or for land statutorily required to be provided in exchange for land taken.
31.Section 7(5) allows the Secretary of State to acquire an easement or other new right over the land in question, as opposed to acquiring the land itself.
32.Section 7(6) provides that any acquisition under the section would be subject to normal compulsory purchase procedures under the Acquisition of Land Act 1981.
33.Section 7(7) provides that the same modifications of the compulsory purchase legislation apply in relation to the acquisition of easements under subsection (5) as apply in relation to the acquisition of easements under section 6(1).
34.Section 8(1) and (2) provide for any private rights of way over land within the Act limits held by the Secretary of State for the purposes of the Crossrail works to be extinguished.
35.Section 8(3) sets out certain rights of way that are not to be extinguished.
36.Section 8(4) enables the Secretary of State to direct that any other particular right of way is to be excepted from extinguishment under the section.
37.Section 8(5) and (6) provide for the private rights of way to be extinguished at the time of acquisition, in respect of some land, and at the time of entry onto the land, in the case of other land.
38.Section 8(7) and (8) provide that compensation may be payable to anyone who suffers loss as a result of any such extinguishment, with any disputes about such compensation to be determined under the Land Compensation Act 1961.
39.Section 9(1) provides for the rights of statutory undertakers over land held by the Secretary of State for the purposes of the Crossrail works to be extinguished as if it had been acquired under Part 9 of the Town and Country Planning Act 1990.
40.Section 9(2)to (5) amend the application of the Town and Country Planning Act 1990. This is primarily necessary because the compulsory purchase powers in the Act are vested in the Secretary of State, not the nominated undertaker, and so the nominated undertaker will not have been the acquiring authority.
41.Section 10(1) provides for deemed planning permission under Part 3 of the Town and Country Planning Act 1990, to be granted for the development authorised by the Act, subject to subsection (2).
42.Section 10(2), (3), (4)and (8) provides that the deemed planning permission only applies to development comprising a specified work listed in Schedule 1 to the Act (a “scheduled work”) or, in the case of other ancillary development not comprising a scheduled work which is likely to have a significant effect on the environment or otherwise requires environmental assessment, if the ancillary development has been environmentally assessed in the environmental statements deposited with or produced during the passage of the Crossrail Bill.
43.Section 10(5) provides that where an application for planning permission is made to the local planning authority in respect of development excluded from the deemed planning permission conferred by section 10(1) by virtue of subsection (2), (3), (4) and (8), the requirements for environmental assessment are to apply to the application even if the area of the development does not exceed the thresholds provided for in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
44.Section 10(6) brings into effect Schedule 7. Schedule 7 establishes a planning regime that seeks to give local planning authorities an appropriate degree of control over the detailed planning aspects of Crossrail (and is be augmented by other arrangements outside the Act, such as a Planning Memorandum and a Construction Code of Practice, designed to sit alongside the legislative provisions). These provisions, and the accompanying documents, are based on the framework established for the Channel Tunnel Rail Link.
45.Section 11(1) provides that, for scheduled works, the deemed planning permission granted by Section 11 applies only to works begun within ten years of Royal Assent.
46.Section 11(2) allows the Secretary of State to extend this time limit by means of an order.
47.Section 11(3) provides for such an order to be subject to the negative resolution procedure.
48.Section 11(4) disapplies section 91 of the Town and Country Planning Act 1990, which sets out the duration of normal planning permission, in respect of the planning permission granted by subsection (1).
49.Section 12(1) allows the Secretary of State for Transport and the Secretary of State for Communities and Local Government, acting jointly, to make regulations about the fees to be charged by local planning authorities for the requests for approval of details under Schedule 7 to the Act to be submitted for Crossrail.
50.Section 12(2) and (3) set out what those regulations may cover.
51.Section 12(4) provides for the regulations to be made in the form of a statutory instrument subject to negative resolution procedure.
52.Section 12(5) disapplies any regulations made under section 303 of the Town and Country Planning Act 1990, which set out the fees normally charged for planning applications, in respect of any supplementary request for approval arising from a planning application deemed granted by section 10(1) of the Act. Special provision for Crossrail planning fees reflects the special planning regime applying to Crossrail provided by Section 10.
53.Section 13(1) allows the Secretary of State, by means of an order, to disapply the deemed planning permission granted by section 10(1) in respect of development consisting of operations for the maintenance or alteration of the Crossrail works, from the date specified in the order. In essence, this provision allows the Secretary of State to switch off the deemed planning permission granted by the Act in respect of future Crossrail works, should he decide to do so (this is most likely to be used in the case of the electrification and signalling work done on sections of the existing railway network, and would ensure that a single planning regime covered works in relation to existing track after the Crossrail construction phase has been completed).
54.Section 13(2) provides that, in the event of such a disapplication, any such development would be subject to the normal provisions of the Town and Country Planning (General Permitted Development) Order 1995 applying to development authorised by a local Act.
55.Section 13(3), (4)and (5) provide for the order to make different provisions in different cases, and for it to be made by means of a statutory instrument.
56.Section 14(1), (2) and (3) provide that where a building is demolished or substantially demolished for the purposes of the Crossrail works, any later planning application for its replacement (for example, for building over a Crossrail station) must be accompanied by an environmental assessment if the building demolished or substantially demolished is listed in the table in the section or it is not so listed but the provision of the replacement would be likely to have significant effects on the environment. This provision is intended to ensure that all the direct and indirect environmental effects of the development authorised by the Act are properly assessed at the appropriate stage.
57.Section 15 allows certain statutory undertakers (such as sewerage and electricity undertakers) to rely on their own permitted development rights for work which they carry out in relation to Crossrail, provided that the significant impacts of such diversions have been environmentally assessed for the purposes of the project as a whole. Such assessment would be found within the various statements containing environmental information which the Department has produced at the introduction of the Act and subsequently where significant project changes have emerged. As with section 14, this provision is intended to ensure that the direct and indirect environmental effects of the development authorised by the Act are properly assessed at the appropriate stage.
58.Section 15 also brings into effect Schedule 8, which enables the Secretary of State to intervene in the process of statutory undertakers carrying out work in relation to Crossrail but under their own permitted development rights. The Secretary of State may intervene under Schedule 8 for the purposes of avoiding a breach of a relevant Parliamentary undertaking or for securing that the environmental effects of carrying out development are not materially different from those assessed.
59.Section 16 brings into effect Schedule 9, which contains provisions dealing with the heritage aspects of Crossrail. Section 16 also allows the Secretary of State to make an order which would, in effect, switch off various parts of Schedule 9 in relation to any work constructed in exercise of the powers in this Act. This would enable the restoration of the normal consents regime following the construction of Crossrail and allow post-construction maintenance of Crossrail works to be controlled in the usual way for works affecting listed buildings and other historic property.
60.Section 17brings into effect Schedule 10, which contains provisions dealing with the rights of entry granted to the Historic Buildings and Monuments Commission for England, or English Heritage as it is more commonly known.
61.Section 18(1) allows the nominated undertaker, by notice, to require the occupier of land on which a tree is situated which overhangs the Crossrail works to remove, top or lop that tree where is it necessary to allow the Crossrail works to be maintained, or for the safe operation of Crossrail.
62.Section 18(2) and (3) allow the occupier of the land to serve a counter-notice objecting within 28 days, in which case the matter is referred to the County Court to determine whether the notice should be confirmed.
63.Section 18(4), (5) and (6) allow the nominated undertaker, in default of a notice being complied with, to do himself the things required to be done by the notice, subject to doing any topping or lopping work in a husband like manner and in such a way as to cause the minimum of damage to the tree.
64.Section 18(7) allows the occupier of the land on which the tree concerned is growing to apply to the County Court for compensation for loss or damage suffered, or for any expenses in complying with the notice.
65.Section 19(1)and (2) disapply tree preservation orders made under section 198(1) of the Town and Country Planning Act 1990 and the provisions of section 211 of the Act, dealing with trees in conservation areas, from any tree works that are carried out under Section 17, or as a consequence of the construction or maintenance of Crossrail works or to enable the safe operation of Crossrail.
66.Section 20(1), (2)and (3) modify the operation of sections 60 and 61 of the Control of Pollution Act 1974, so that appeals under those provisions are determined by the Secretary of State or if the parties agree, by arbitration rather than by a magistrates’ court.
67.Section 20(4) and (5) enable the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to make regulations about procedure in relation to such arbitrations. Such regulations must be made by statutory instrument subject to the negative resolution procedure.
68.Section 21 provides that an order under section 82(2) of the Environmental Protection Act 1990 may not be made by a magistrates' court in connection with noise emitted from premises, or from a vehicle, machinery and equipment in a street, where the nominated undertaker can show that they are used for Crossrail purposes and the Crossrail works concerned are being carried out in accordance with a notice or consent issued by the local authority under section 60, 61 or 65 of the Control of Pollution Act 1974. These provisions of the 1974 Act address control of noise on construction sites (section 60), consent for work on construction sites (section 61) and consent to exceed noise limits (section 65).
69.Section 22(1) provides that the objectives in section 4(1) of the Railways Act 1993 (which are the components of a general duty) shall, in relation to the Office of Rail Regulation (“ORR”), be treated as including the objective of facilitating the construction of Crossrail. Section 22(2) requires the ORR to consult the Secretary of State about the exercise of its duty in section 4(1) of the 1993 Act as modified by section 22(1).
70.Section 22(3) and (4) enable the Secretary of State to specify by order when section 22 ceases to have effect. This power is provided as there may be ambiguity concerning precisely when the construction phase of the Crossrail project should be regarded as having been completed. Such an order must be laid before Parliament after being made but is not subject to annulment.
71.Section 23(1) and (2) require the ORR to publish a report on two matters from time to time and also at any time that the Secretary of State requires. The first potential subject-matter of such a report is what the ORR has done or proposes to do to further its objective of facilitating the construction of Crossrail (the objective arising under section 22). The second matter is how the ORR has exercised or proposes to exercise its functions in connection with the operation of passenger services that make use of the principal Crossrail tunnel.
Crossrail Act 2008