Office of Public Sector Information
14. The Promoter may operate and use the railway and other authorised works as a system, or part of a system, of transport for the carriage of goods.
15.—(1) Where, pursuant to regulations made under section 41 of the 1992 Act (approval of works, plant and equipment), approval has been obtained from the Office of Rail Regulation with respect to any works, plant or equipment (including vehicles) forming part of the authorised works, such works, plant and equipment shall not be used in a state or condition other than that in which they were at the time that the approval was given unless any change thereto does not materially impair the safe operation of the authorised works.
(2) If without reasonable cause the provisions of paragraph (1) are contravened, the Promoter shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) No proceedings shall be instituted in England and Wales in respect of an offence under this article except by or with the consent of the Office of Rail Regulation or the Director of Public Prosecutions.
16. Any person who—
(a) trespasses on any authorised work; or
(b) trespasses upon any land of the Promoter in dangerous proximity to the authorised works or to any electrical or other apparatus used for or in connection with the operation of the authorised works,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
17.—(1) The Promoter may sell, lease, charge or otherwise dispose of, on such terms and conditions as it thinks fit, the whole or any part of the authorised works and any land held in connection with the authorised works or the right to operate the works under this Order.
(2) Without prejudice to the generality of paragraph (1), the Promoter may enter into and carry into effect agreements with respect to any of the following matters, namely, the construction, maintenance, use and operation of the authorised works, or any part of them, by any other person, and other matrters incidental or subsidiary thereto or consequential thereon, and the defraying of, or the making of contributions towards, the cost of the matters aforesaid by the Promoter or any other person.
(3) Any agreement under paragraph (2) may provide (amongst other things) for the exercise of the powers of the Promoter in respect of the authorised works or any part of those works, and for the transfer to any person of the authorised works or any part of those works together with the rights and obligations of the Promoter in relation thereto.
(4) The exercise of the powers of any enactment by any person in pursuance of any sale, lease, charge or disposal under paragraph (1), or any agreement under paragraph (2), shall be subject to the same restrictions, liabilities and obligtaions as would apply under this Order if those powers were exercised by the Promoter.
18.—(1) Subject to Schedule 2 (for the protection of Network Rail), the Promoter and Network Rail may enter into and carry into effect agreements with respect to the construction, maintenance, use and operation of—
(a) any designated works, or any part of those works; and
(b) any works required for the purposes of the designated works or in connection with those works,
by Network Rail or by the Promoter, or by the Promoter and Network Rail jointly.
(2) (a) Any agreement made under this article may contain such incidental, consequential or supplementary provisions as may be so agreed, including (but without prejudice to the generality of the foregoing) provisions—
(i) with respect to the defraying of, or the making of contributions towards, the cost of works of alteration or adaptation or the costs of construction, maintenance, use and operation as are referred to in paragraph (1) by the Promoter or by Network Rail or by the Promoter and Network Rail jointly; and
(ii) for the exercise by Network Rail, or by the Promoter, or by Network Rail and the Promoter jointly, of all or any of the powers and rights of Network Rail and the Promoter (as the case may be) in respect of either of the works referred to in paragraph (1) and any works required for the purposes of those works or in connection with those works.
(b) The exercise by the Promoter or Network Rail or by the Promoter and Network Rail jointly, of any powers and rights under any enactment or contract pursuant to any such agreement as is authorised by paragraph (1) shall be subject to all statutory and contractual provisions relating thereto as would apply if such powers and rights were exercised by the Promoter or Network Rail (as the case may be) alone, and accordingly such provisions shall, with any necessary modifications, apply to the exercise of such powers and rights by the Promoter or Network Rail, or by the Promoter and Network Rail jointly, as the case may be.
(3) The Promoter and Network Rail may enter into, and carry into effect, agreements for the transfer to and vesting in Network Rail or the Promoter, or the Promoter and Network Rail jointly, of—
(a) the designated works or any part of any of those works; or
(b) any works, lands, or other property required for the purposes of the designated works or in connection with those works,
together with any rights and obligations (whether or not statutory) of Network Rail or the Promoter relating thereto.
(4) In this article—
“designated works” means any part of the authorised works to be constructed on railway property;
“Network Rail” means Network Rail Infrastructure Limited; and
“railway property” means any railway belonging to Network Rail and any works, apparatus and equipment belonging to Network Rail connected with the railway and includes any land held or used by Network Rail for the purposes of such railway or works, apparatus or equipment.
19. Nothing in this Order or in any enactment incorporated with or applied by this Order shall prejudice or affect the operation of Part 1 of the Railways Act 1993(12).
20. The provisions of Schedule 2 (for the protection of Network Rail) shall have effect.
21. The provisions of Schedule 3 (for the protection of the Environment Agency) shall have effect.
22. The Promoter shall, as soon as practicable after the making of this Order, submit copies of the deposited plans and the deposited sections to the Secretary of State for certification that they are true copies of, respectively, the deposited plans and the deposited sections referred to in this Order, and a document so certified shall be admissible in any proceedings as evidence of the contents of the document of which it is a copy.
23.—(1) A notice or other document required or authorised to be served for the purposes of this Order may be served by post.
(2) Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
(3) For the purposes of section 7 of the Interpretation Act 1978(13) as it applies for the purposes of this article, the proper address of any person in relation to the service on him of a notice or document under paragraph (1) is, if he has given an address for service, that address, and otherwise—
(a) in the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and
(b) in any other case, his last known address at the time of service.
(4) Where for the purposes of this Order, a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and his name or address cannot be ascertained after reasonable enquiry, the notice may be served by—
(a) addressing it to him by name or by the description of “owner”, or as the case may be “occupier”, of the land (describing it); and
(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(5) This article shall not be taken to exclude the employment of any method of service not expressly provided for by it.
24. Compensation shall not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.
25. Unless otherwise agreed between the parties, any difference under any provision of this Order (other than a difference which falls to be determined by the tribunal) shall be referred to and settled by a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Civil Engineers.
26.—(1) Where proceedings are brought under section 82(1) of the Environment Protection Act 1990(14) (summary proceedings by person aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows—
(a) that the nuisance relates to premises used by the Promoter for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works; and
(b) that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60 of the Control of Pollution Act 1974(15) or a consent given under section 61 or 65 of that Act.
(2) The following provisions of the Control of Pollution Act 1974, namely—
(a) section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990)(16); and
(b) section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded),
shall not apply where the consent relates to the use of premises by the Promoter for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.
27.—(1) In relation to the application of paragraph 3(c) of the Second Schedule of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Tree Preservation Order) Regulations 1969(17) (including that paragraph as applied by regulation 3(ii) of the Town and Country Planning (Tree Preservation Order) (Amendment) and (Trees in Conservation Areas) (Exempted Cases) Regulations 1975(18), or as incorporated in any tree preservation order), any direction under section 90(2A) of the 1990 Act deeming planning permission to be granted in relation to works authorised by this Order shall be treated as deeming the permission to have been granted on application made under Part 3 of that Act for the purposes of that Part.
(2) In relation to the application of article 5(1)(d) of the Form of Tree Preservation Order set out in the Schedule to the Town and Country Planning (Trees) Regulations 1999(19) as incorporated in any tree preservation order or as having effect by virtue of regulation 10(1)(a) of those Regulations, any direction under section 90(2A) of the 1990 Act deeming planning permission to be granted in relation to works authorised by this Order shall not be treated as an outline planning permission.
(3) Planning permission which is deemed by a direction under section 90(2A) of the 1990 Act to be granted in relation to works authorised by this Order shall be treated as specific planning permission for the purpooses of section 264(3)(a) of that Act (cases in which land is to be treated as operational land for the purposes of that Act).
28. Nothing in this Order shall affect any estate, right or interest granted by Network Rail in respect of a railway facility which is subject to an access contract within the meaning of Part 1 of the Railways Act 1993.
Signed by authority of the Secretary of State
Ellis Harvey
Head of the Transport and Works Act Orders Unit
Department for Transport
7th September 2007
1978 c. 30. Back [13]
1990 c. 43. Section 82(1) was inserted by Environment Act 1995 (1995 c. 25) s. 107. Back [14]
1974 c. 40. Back [15]
1990 c. 43 as amended by Environment Act 1995 (1995 c. 25) s. 107, Sch 17 and Noise and Statutory Nuisance Act 1993 (1993 c. 40) s. 5. Back [16]
S.I 1969. 17. Back [17]
S.I. 1975/148. Back [18]
S.I. 1999/1892. Back [19]
The London Gateway Logistics and Commercial Centre Order 2007