1 Confirmation of Order in Schedule

The Provisional Order contained in the Schedule hereunto annexed is hereby confirmed.

2 Short title

This Act may be cited as the British Railways Order Confirmation Act 1994.

SCHEDULE British Railways

Part I Preliminary

1 Short title

This Order may be cited as the British Railways Order 1994.

2 Interpretation

(1) In this Order, unless the context otherwise requires, words and expressions to which meanings are assigned by the enactments incorporated herewith have the same respective meanings; and —

• “the Act of 1845” means the [1845 c. 33.] Railways Clauses Consolidation (Scotland) Act 1845;

• “the Act of 1991” means the [1991 c. 22.] New Roads and Street Works Act 1991;

• “the Board” means the British Railways Board;

• “enactment” includes any order, byelaw, rule, regulation, scheme or other instrument having effect by virtue of an enactment;

• “the limits of deviation” means the limits of deviation shown on the deposited plans;

• “the regional council” means the Strathclyde Regional Council;

• “road” has the meaning assigned to it by section 107 of the Act of 1991;

• “road works authority” has the meaning assigned to it by section 108 of the Act of 1991;

• “the sheriff” means the sheriff principal of, or any sheriff appointed for, the Sheriffdom of South Strathclyde, Dumfries and Galloway or the Sheriffdom of Glasgow and Strathkelvin, as the case may be;

• “the tribunal” means the Lands Tribunal for Scotland; and

• “the works” means the works authorised by Part II (Works, etc.) of this Order.

(2) Except in relation to section 5 (Power to deviate) of this Order, all directions, distances and lengths stated in any description of works, powers or lands in this Order shall be construed as if the words “or thereby” were inserted after each such direction, distance and length and distances between points on a railway shall be taken to be measured along the railway.

(3) Any reference in this Order to a work identified by the number of that work shall be construed as a reference to the work of that number authorised by this Order.

(4) References in this Order to points identified by letters shall be construed as references to the points so lettered on the deposited plans.

(5) References in this Order to access to any place shall include reference to egress from that place.

3 Incorporation of enactments

(1) The following enactments, so far as the same are applicable for the purposes of and are not inconsistent with, or varied by, the provisions of this Order, are incorporated with this Order, and this Order shall be deemed to be the special Act for the purposes of the said incorporated enactments:—

(a) the Lands Clauses Acts, except sections 120 to 124 and section 127 of the [1845 c. 19.] Lands Clauses Consolidation (Scotland) Act 1845;

(b) the Act of 1845, except sections 1, 7, 8, 9, 17, 19, 20, 22 and 23 thereof; and

(c) in the [1863 c. 92.] Railways Clauses Act 1863, Part I (relating to construction of a railway) except sections 13, 14, 18 and 19 thereof.

In the application of the enactments incorporated by subsection (1) (b) and (c) above the expression“the company” means the Board.

(b) Sections 18 and 21 of the Act of 1845 shall not extend to regulate the relations between the Board and any other person in respect of any matter or thing concerning which those relations are regulated in any respect by the provisions of Part IV of the Act of 1991 or by section 30 (For protection of electricity, gas and water undertakers) of this Order.

Part II Works, etc.

Works

4 Power to make works

Subject to the provisions of this Order, the Board may, in the lines or situations and within the limits of deviation shown on the deposited plans and according to the levels shown on the deposited sections, make and maintain the following works in the Strathclyde Region, with all necessary works and conveniences connected therewith:—

• In the Cumnock and Doon Valley District—

  • Work No. 1—A railway (10,922 metres in length), being a reinstatement of part of the railway between Auchinleck and Muirkirk, commencing at Auchinleck by a junction with the Kilmarnock and Dumfries Railway at a point 21 metres east of the bridge carrying that railway over Main Street and terminating at Powharnal at a point 52 metres south-west of the A.70 Road (Ordnance Survey National Grid reference point NG 6471:2553).[(Railway between Auchinleck and Powharnal)]

• In the City of Glasgow District—

  • Work No. 2—A railway (1,570 metres in length), being in part a reinstatement of part of the railway between Maryhill Park and Knightswood South Junctions, commencing at Anniesland station at a point 91 metres north-east of the bridge carrying the Drumgelloch and Helensburgh Railway over Great Western Road and terminating at Maryhill by a junction with the railway between Cowlairs West and Knightswood North Junctions at a point 168 metres south-west of the bridge carrying Maryhill Road over the last-mentioned railway.[(Railway between Anniesland and Maryhill, Glasgow)]

  • Work No. 3—A railway (82 metres in length) at Anniesland, commencing by a junction with the Drumgelloch and Helensburgh Railway at a point 264 metres north-east of the bridge carrying that railway over Great Western Road and terminating by a junction with Work No. 2 at a point 257 metres north-east of its commencement.[(Railway at Anniesland)]

5 Power to deviate

(1) In the construction of the works the Board may—

(a) deviate from the lines or situations thereof shown on the deposited plans to the extent of the limits of deviation; and

(b) subject to subsection (2) below, deviate vertically from the levels shown on the deposited sections to any extent not exceeding 3 metres upwards or downwards or to such further extent as may be approved by the Secretary of State.

(2) Subsection (1) (b) above shall not apply to the construction of Work No. 2 beneath the aqueduct included in the land numbered in the deposited plans 10 in the City of Glasgow District where the Board may deviate downwards only and then only to an extent not exceeding 0·5 of a metre.

6 Relief of certain obligations in respect of Work No. 1

(1) In this section—

• “the bridges” means the two bridges in the Cumnock and Doon Valley District, one of which carries the road from Auchinleck to Lugar over the former railway at Commondyke and the other of which carried the former railway over the road from Auchinleck to the A.70 road at Cronberry;

• “the former railway” means the discontinued portion of the former railway between Auchinleck and Muirkirk on the course of, and coterminous with, Work No. 1 which was authorised and constructed under the original Act; and

• “the original Act” means the [1847 c. clxxxiv.] Glasgow, Paisley, Kilmarnock, and Ayr Railway and Glasgow and Belfast Union Railway Amendment and Branches Act No. 1 1847.

(2) In the construction of Work No. 1 the Board shall be relieved of the obligations of sections 39 and 60 of the Act of 1845, as incorporated with the original Act, including any contractual obligations arising under the said section 60, in respect of the bridges and any other works on, or relating to, the former railway.

Notwithstanding anything in the original Act or in the Act of 1845, as incorporated with this Order, the Board may, in relation to the roads which cross or are crossed by the bridges and are mentioned in paragraph (b) below, retain the bridges with the dimensions therein specified.

(b) The roads and dimensions referred to in paragraph (a) above are—

(i) the road at Commondyke, with a clear space between parapets of 4.62 metres; and

(ii) the road at Cronberry, with a clear height above the surface of the road of 4.08 metres for a space of 3.05 metres.

7 Station works between Anniesland and Maryhill, Glasgow

In the construction of Work No. 2 and for the purpose of serving that work, the Board may, on any part of the land in the City of Glasgow District described in column (1) of Schedule 1 to this Order which lies within the lines marked “Limit of station works” on the deposited plans, make, maintain and operate the station works described in column (2) of that Schedule with all necessary works and conveniences connected therewith.

8 Power to open surface of Coal Road, Auchinleck

Subject to the provisions of this Order, the Board may, for the purpose of constructing Work No. 1, enter upon, open, break up and interfere with so much of the surface of Coal Road, Auchinleck, as is within the limits of deviation of that work.

9 Access to Work No. 1

The Board may, in relation to Work No. 1, or to all or any of the lands within the limits of deviation of that work, form and lay out means of access at the points specified in column (1) of Schedule 2 to this Order for the purposes mentioned in column (2) of that Schedule.

General works provisions

10 Temporary stoppage of roads

(1) The Board, during and for the purpose of the execution of the works, may temporarily stop up and divert and interfere with any road and may for any reasonable time divert the traffic therefrom and prevent all persons other than those bona fide going to or from any land, house or building abutting on the road from passing along and using the same.

(2) The Board shall provide reasonable access for persons on foot bona fide going to or from any such land, house or building.

The Board shall not exercise the powers of this section without the consent of the road works authority.

(b) Any such consent may be given subject to such reasonable conditions as the road works authority may require but shall not be unreasonably withheld and any question whether such consent has been unreasonably withheld or whether any such condition is reasonable shall be determined by arbitration.

11 Underpinning of buildings near works

The Board at their own expense may, subject as hereinafter provided, underpin or otherwise strengthen any building within 30 metres of any part of the works and the following provisions shall have effect:—

(1) At least 14 days' notice shall (except in case of emergency) be given to the owner, lessee and occupier of the building intended to be so underpinned or otherwise strengthened:

(2) If any owner, lessee or occupier of any such building, within 10 days after the giving of such notice, gives a counter-notice in writing that he disputes the necessity of such underpinning or strengthening, the question of the necessity shall be determined by arbitration; and, if the arbiter decides that such underpinning or strengthening is not necessary, the Board shall not proceed therewith:

(3) In any case in which any building shall have been underpinned or strengthened under the powers of this section the Board may, from time to time after the completion of such underpinning or strengthening, and during the execution of the work in connection with which such underpinning or strengthening was done, or within five years after the opening for traffic of that work, after giving reasonable notice to the occupier enter upon and survey such building and, after complying with the foregoing provisions of this section, do such further underpinning or strengthening as they may deem necessary or expedient:

(4) The Board shall be liable to compensate the owner, lessee and occupier of every such building for any loss or damage which may result to them by reason of the exercise of the powers of this section:

(5) Nothing in this section shall affect liability to compensate under any enactment in respect of loss or damage arising from the execution of any works, except so far as compensation is payable under paragraph (4) above:

(6) Every case of compensation to be ascertained under this section shall be ascertained according to the provisions of the [1963 c. 51.] Land Compensation (Scotland) Act 1963.

12 Use of sewers, etc., for removing water

(1) The Board may use for the discharge of any water pumped or found by them during the construction of the works any available stream or watercourse, or any sewer or drain vested in, or under the control of, the regional council, and for that purpose may lay down, take up and alter conduits, pipes and other works and may make any convenient connections with any such stream, watercourse, sewer or drain within the limits of deviation.

(2) The Board shall not—

(a) discharge any water into any such sewer or drain except with the consent of the regional council, whose consent shall not be unreasonably withheld, and subject to such terms and conditions (including the taking of steps to remove as far as may be reasonably practicable from water so discharged any gravel, soil or other solid substance or matter in suspension) as the regional council may reasonably impose; or

(b) make any opening into any such sewer or drain except in accordance with plans approved by, and under the superintendence (if given) of, the regional council but approval of those plans by the regional council shall not be unreasonably withheld.

(3) Any difference arising between the Board and the regional council under this section shall be determined by arbitration.

(4) Section 31 of the [1974 c. 40.] Control of Pollution Act 1974 shall apply to, or to the consequence of, a discharge under the powers of this section into any controlled waters within the meaning assigned to that expression by section 30A (1) of that Act as if this section were not a provision of a local Act or a statutory order for the purposes of section 31 (2) (b) (ii) of that Act.

(5) Nothing in this section shall affect the operation of Part IV of the Act of 1991.

(6) Nothing in this section shall authorise the Board to discharge any water directly or indirectly into the Forth and Clyde Canal of the British Waterways Board.

Part III Land

13 Meaning of new rights

In this Part references to the purchase by the Board of new rights are references to the purchase of rights (whether heritable or moveable) to be created in favour of the Board.

14 Purchase of land

(1) The Board may purchase compulsorily and use such of the land within the limits of deviation and described in the deposited book of reference as they require for the purposes of the works or their undertaking.

(2) The Board may enter upon, use and appropriate so much of the subsoil and undersurface of, or airspace over, any public road or place within the limits of deviation and described in the deposited book of reference as shall be necessary for the purposes of subsection (1) above without being required to purchase the same or any servitude or other right therein or thereunder or to make any payment therefor.

(3) For the purpose of section 28 of the [1979 c. 33.] Land Registration (Scotland) Act 1979 subsection (2) above shall be taken to create a real right over such land as is referred to in that subsection without any necessity to record a deed in the Register of Sasines or to register the right.

(4) The Board shall not exercise the powers of this section or sections 15 (Purchase of new rights over land) and 16 (Purchase of specific new rights over land) of this Order in relation to any land to which section 17 (Temporary use of land) of this Order applies.

15 Purchase of new rights over land

(1) Subject to the provisions of this Order, the Board may for the purpose of constructing, maintaining, protecting, altering, renewing and using the works, or for the purpose of obtaining access to the works or for the purpose of doing any other thing necessary in connection with the works, purchase compulsorily and use so much of the subsoil and undersurface of, or may purchase compulsorily such new rights as they require in, under or over any of the land within the limits of deviation and described in the deposited book of reference instead of purchasing that land under section 14 (Purchase of land) of this Order.

(2) The Lands Clauses Acts, as applied by this Order, shall have effect with the modifications necessary to make them apply to the compulsory purchase of new rights under subsection (1) above and under section 16 (Purchase of specific new rights over land) of this Order as they apply to the compulsory purchase of land so that, in appropriate contexts, references in the Lands Clauses Acts to land are read as referring, or as including references, to the new rights or to land over which the new rights are, or are to be, exercisable, according to the requirements of the particular context.

16 Purchase of specific new rights over land

(1) The Board may, in addition to such new rights as they may purchase under section 15 (Purchase of new rights over land) of this Order, purchase compulsorily such new rights as they require in or over any of the lands shown on the deposited plans within the lines marked “Limit of land to be used” and specified in Part I of Schedule 3 to this Order for the provision of means of access to the roads there mentioned.

(2) Where in column (3) of the said Part I reference is made to a lettered point, the Board may form and lay out means of access at that point to the road there named.

17 Temporary use of land

The provisions set out in Part II of Schedule 3 to this Order shall have effect with respect to the temporary use of land by the Board for working sites and related movement of equipment, materials and plant.

18 Time for compulsory purchase of land or rights over land

Except as may be provided under section 19 (Extension of time) of this Order, the powers of the Board of compulsory purchase of land and new rights in, under or over land under this Order shall cease on 31st December 1997.

19 Extension of time

(1) In this section“lessee” means a lessee under a lease having a period of not less than 21 years to run at the date of his notice under subsection (3) below; and any reference to the purchase of an interest in land includes reference to the purchase of a new right in, under or over that land.

Subject to the provisions of this section, the Secretary of State may, by order under this subsection, extend the period for the exercise of powers of compulsory purchase of land and new rights in, under or over land under this Order.

(b) An order under this subsection shall be subject to special parliamentary procedure.

(3) If any owner or lessee of any land subject to an order under subsection (2) above shall give notice in writing to the Board of his desire for the purchase as soon as may be by the Board of his interest in any part of the land specified in the notice, the Board shall within a period of three months after the receipt of such notice—

(a) enter into a contract with him for the purchase of his interest in the land or such part thereof as may be specified in the contract; or

(b) serve on him a notice to treat for the compulsory purchase of his interest in the land specified in his notice, or in such part thereof as may be required by the Board; or

(c) serve on him notice in writing of the Board’s intention not to proceed with the purchase of his interest in the land specified in his notice.

(4) Where notice is given under subsection (3) above by any owner or lessee, then—

(a) if the Board—

(i) fail to comply with that subsection; or

(ii) withdraw in pursuance of any statutory provision a notice to treat served on him in compliance with subsection (3) (b) above; or

(iii) serve notice on him in compliance with subsection (3) (c) above;

the powers conferred by this Order for the compulsory purchase of his interest in the land so specified shall cease;

(b) if his interest in part only of the land so specified is purchased in pursuance of such a notice to treat, the powers conferred by this Order for the compulsory purchase of his interest in the remainder of the land so specified shall cease.

20 Correction of errors in deposited plans and book of reference

(1) If the deposited plans or the deposited book of reference are inaccurate in their description of any land or in their statement or description of the ownership or occupation of any land, the Board, after giving not less than 10 days' notice to the owner, lessee and occupier of the land in question, may apply by summary application to the sheriff having jurisdiction in the place where the land is situated for the correction thereof.

(2) If on any such application it appears to the sheriff that the misstatement or wrong description arose from mistake, he shall certify accordingly and shall in his certificate state in what respect any matter is misstated or wrongly described.

(3) The certificate shall be deposited in the office of the Clerk of the Parliaments and a copy thereof in the Private Bill Office, House of Commons, the Scottish Office, London, the office of the Secretary of State for Scotland, Edinburgh, the office of the Health and Safety Executive, Edinburgh, and with the sheriff clerk of the sheriff court district of Ayr or of Glasgow and Strathkelvin, according to the place where the land is situated, and thereupon the deposited plans and the deposited book of reference shall be deemed to be corrected according to the certificate.

(4) Any certificate or copy deposited under this section with any person shall be kept by him with the other documents to which it relates.

21 Grant of servitudes by persons under disability

(1) Any person empowered by the Lands Clauses Acts to sell and convey or discharge land may if he thinks fit, subject to the provisions of those Acts, grant to the Board any servitude, right or privilege required for the purposes of this Order in, under, over or affecting the land (not being a servitude, right or privilege of water in which some person other than the grantor has an interest).

(2) The provisions of the said Acts with respect to land and feu duties or ground annuals so far as they are applicable shall extend and apply to any such grant and to any such servitude, right or privilege as aforesaid.

22 Purchase of part of certain properties

(1) Where a copy of this section is endorsed on, or annexed to, a notice to treat served under the Lands Clauses Acts, as incorporated with this Order, the following provisions of this section shall apply to the land subject to the notice instead of section 90 of the [1845 c. 19.] Lands Clauses Consolidation (Scotland) Act 1845.

(2) Where the land subject to the notice is part only of a house, building or factory, or part only of land consisting of a house together with any park or garden belonging thereto, then, if the person on whom the notice is served, within 21 days after the day on which the notice is served on him, serves on the Board a counter-notice objecting to the sale of the part and stating that he is willing and able to sell the whole (in this section referred to as“the land subject to the counter-notice”), the question whether he shall be required to sell the part shall, unless the Board agree to take the land subject to the counter-notice, be referred to the tribunal.

(3) If the said person does not serve such a counter-notice as aforesaid within 21 days after the day on which the notice to treat is served on him, or if on such a reference to the tribunal the tribunal determines that the part subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, in the case of part of land consisting of a house together with a park or garden belonging thereto, without such detriment and without seriously affecting the amenity and convenience of the house, the said person shall be required to sell the part.

(4) If, on such a reference to the tribunal, the tribunal determines that part only of the land subject to the notice to treat can be taken without material detriment to the remainder of the land subject to the counter-notice or, as the case may be, without such detriment and without seriously affecting the amenity and convenience of the house, the notice to treat shall be deemed to be a notice to treat for that part.