TRANSPORT AND WORKS PART I PRELIMINARY Citation and commencement 1 This Order may be cited as the Gateshead (Baltic Millennium Bridge) Order 1999 and shall come into force on 18th May 1999. Interpretation 2 1 In this Order, unless the context otherwise requires– “the 1965 Act ” means the Compulsory Purchase Act 1965 ; “the 1992 Rules ” means the Transport and Works (Applications and Objections Procedure) Rules 1992; “authorised works” means the scheduled works and any other works authorised by this Order; “ the Authority ” means the Port of Tyne Authority; “the book of reference” means the book of reference described in rule 7(5) of the 1992 Rules and certified by the Secretary of State as the book of reference for the purposes of this Order; “the Borough Council ” means the Council of the Borough of Gateshead; “the bridge” means Work No. 1 described in the Schedule to this Order; “the City Council ” means the Council of the City of Newcastle upon Tyne; “cycle” means a bicycle, a tricycle, or a cycle having four or more wheels, not being in any case a motor vehicle within the meaning of the Road Traffic Act 1988 ; “the deposited plans” means the plans described in rule 7(1)(a) and (3) of the 1992 Rules and certified by the Secretary of State as the deposited plans for the purposes of this Order; “the deposited sections” means the sections described in rule 7(2) of the 1992 Rules and certified by the Secretary of State as the deposited sections for the purposes of this Order; “harbour master” has the same meaning as in the Port of Tyne Reorganisation Scheme 1967 Confirmation Order 1968 ; “highway authority” has the same meaning as in the Highways Act 1980 ; “the level of high-water” means the level of mean high-water springs; “limits of deviation” means the limits of deviation shown on the deposited plans; “maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace and “maintenance” shall be construed accordingly; “maritime traffic” means vessels of any description having cause to use that part of the River Tyne in which the bridge is situated; “the scheduled works” means the works specified in Schedule 1 to this Order; “tidal waters” means such parts of the River Tyne as are tidal; “tidal works” means any of the authorised works carried out in, on or over tidal waters; “ the tribunal ” means the Lands Tribunal; “ Trinity House ” means the Corporation of Trinity House of Deptford Strond; “ the undertaker ” means the Borough Council; and “vessel” means every description of vessel with or without means of propulsion of any kind and includes anything constructed or used to carry persons, goods, plant or machinery, or to be propelled or moved, on or by water, a seaplane on or in the water and a hovercraft within the meaning of the Hovercraft Act 1968 . 2 All directions, distances, lengths and points stated in any description of works or powers shall be construed as if the words “or thereabouts” were inserted after each such direction, distance, length and point. PART II WORKS PROVISIONS Principal Powers Power to construct works 3 1 The undertaker may construct and maintain the scheduled works. 2 Subject to article 4 below, the scheduled works shall be constructed in the lines or situations shown on the deposited plans and in accordance with the levels shown on the deposited sections. 3 The undertaker shall, within the limits of deviation, carry out and maintain such works for the benefit or protection of maritime traffic as may be necessary or expedient for the purposes of, in connection with, or in consequence of, the construction of the scheduled works. 4 The undertaker may, within the limits of deviation, carry out such works (of whatever nature) as may be necessary or expedient for the purposes of, or in connection with, or in consequence of, the construction of the scheduled works. Power to deviate 4 In constructing or maintaining the authorised works, the undertaker may deviate laterally from the lines or situations shown on the deposited plans to any extent within the limits of deviation and may deviate vertically from the levels shown on the deposited sections to any extent not exceeding 3 metres upwards and to any extent downwards. Supplemental powers Provisions relating to the opening of the bridge 5 1 The undertaker shall open the bridge in accordance with the following provisions of this article for the purpose of facilitating navigation on the River Tyne. 2 The bridge shall be opened by the undertaker on such occasions and for such period on each such occasion as may be specified in a programme which the undertaker shall agree from time to time in advance with the Authority, the University of Newcastle upon Tyne, the Royal Navy, the Royal Yachting Association and the Territorial, Auxiliary and Volunteer Reserve Association for the North of England (for so long as each of those persons or bodies, their members or any persons whom they represent have an interest in navigating on the River Tyne beneath the bridge). 3 When agreeing the programme of openings required by paragraph (2) above the parties shall allow for the reasonable requirements of vessels navigating, or seeking to navigate, on the River Tyne and no party shall withhold agreement unreasonably. 4 Subject to paragraph (5) below, the undertaker shall also open the bridge on the date and at the time specified in a notice (whether written or not) given by the operator of any vessel which is to pass beneath the bridge, if that notice is given at least 24 hours before the day and time specified in that notice and in accordance with the requirements for giving such a notice specified in the arrangements published pursuant to paragraph (7) below. 5 Where a notice has been served pursuant to paragraph (4) above, the undertaker may delay the time at which the bridge is to be opened for up to half an hour after the time specified in that notice, if the undertaker is of the reasonable opinion that opening the bridge at the time specified in the notice would interfere unreasonably with the passage of pedestrians and cyclists over the bridge and if the undertaker has on forming that opinion forthwith notified the operator of the vessel in question of the time at which the bridge will be opened. 6 The requirement in paragraph (4) above to give at least 24 hours' notice shall not apply where, in the case of an emergency, it is necessary for a vessel to navigate beneath the bridge; but in such a case the master of the vessel shall give such notice (if any) as is practicable and paragraph (5) above shall not apply. 7 The undertaker shall publish in notices displayed in a prominent position at each end of the bridge, and in such other positions as the undertaker deems advisable in order to attract the attention of those operating vessels and of pedestrians and cyclists using the bridge, the arrangements made from time to time in relation to the opening of the bridge, including– a the programme agreed in accordance with paragraph (2) above; b the procedure for opening the bridge in accordance with paragraphs (4) to (6) above; and c the address and telephone number of the person to whom the notice required by paragraph (4) above is to be given. 8 No arrangements shall be published under paragraph (7) above without the consent of the Authority (which consent shall not be unreasonably withheld). 9 Without prejudice to paragraph (3) above, the arrangements published under paragraph (7) above shall be subject to any bye-laws or general directions made or given by the Authority and to any special directions given by the harbour master. 10 In this article– “general direction” means a direction given under section 6 of the Port of Tyne Act 1989 ; and “special direction” means a direction given under section 8 of that Act. Provisions relating to public use of the bridge and its maintenance 6 The undertaker shall enter into such arrangements as may be necessary with the appropriate highway authorities for the purpose of ensuring that the bridge is made available for use as a highway over which the public have a right of way on cycles and a right of way on foot. Provisions in the event of the bridge ceasing to be used by the public 7 In the event of the bridge ceasing to be used by the public (other than for the purpose of maintenance or in an emergency) and any public right of way over it being extinguished, the undertaker shall take such steps as the Authority may reasonably require to ensure the free and uninterrupted passage of maritime traffic. Power to survey and investigate land 8 1 The undertaker may for the purposes of this Order– a survey or investigate any land within the limits of land to be used shown on the deposited plans; b without prejudice to the generality of sub-paragraph (a) above, carry out archaeological investigations on the land; c without prejudice to the generality of sub-paragraph (a) above, make trial holes in such positions as the undertaker thinks fit on the land to investigate the nature of the surface layer and subsoil and remove soil samples; d place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes; and e enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (d) above. 2 No land may be entered, or equipment placed or left on or removed from the land under paragraph (1) above, unless at least 7 days' notice has been served on every owner and occupier of the land. 3 Any person entering land under this article on behalf of the undertaker– a shall, if so required, before or after entering the land produce written evidence of his authority to do so; and b may take with him such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes. 4 The undertaker shall pay compensation for any damage, occasioned by the exercise of the powers conferred by this article, to the owners and occupiers of the land, such compensation to be determined, in case of dispute, under Part I of the Land Compensation Act 1961 . 5 Nothing in this article shall obviate the need to obtain scheduled monument consent under the Ancient Monuments and Archaeological Areas Act 1979 . PART III TEMPORARY POSSESSION OF LAND Temporary use of land for construction of works 9 1 The undertaker may, in connection with the carrying out of the authorised works– a enter upon and take temporary possession, or for the purposes specified in column (1) of Schedule 2 to this Order, of the land specified in columns (2) and (3) of that Schedule; and b construct temporary works (including the provision of means of access) and buildings on the land. 2 Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker shall serve notice of the intended entry on the owners and occupiers of the land. 3 The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the part of the authorised works for the purposes of which possession of the land is taken. 4 Before giving up possession of land of which temporary possession has been taken under this article, the undertaker shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land. 5 The undertaker shall pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article. 6 Any dispute as to a person’s entitlement to compensation under paragraph (5) above, or as to the amount of the compensation, shall be determined under Part I of the Land Compensation Act 1961. 7 Without prejudice to article 20 below, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5) above. 8 Where the undertaker takes possession of land under this article, it shall not be required to acquire the land or any interest in it. 9 The powers conferred by this article shall cease at the end of 5 years beginning on the day on which the Order comes into force but the undertaker may remain in possession of the land after the end of that period if the land was entered into and possession of it was taken before the end of that period. 10 In this article “building” includes any structure or other erection. Temporary use of land for maintenance works 10 1 At any time during the maintenance period relating to any of the scheduled works, the undertaker may– a enter upon and take temporary possession of any land within the limits of deviation if such possession is reasonably required for the purpose of, or in connection with, maintaining the work or any ancillary works connected with it; and b construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose. 2 Paragraph (1) above shall not authorise the undertaker to take temporary possession of any building if it is for the time being occupied. 3 Not less than 28 days before entering upon and taking temporary possession of land under this article the undertaker shall serve notice of the intended entry on the owners and occupiers of the land. 4 The undertaker may only remain in possession of land under this article for so long as may be reasonably necessary to carry out the maintenance works for which possession of the land was taken. 5 Before giving up possession of land of which temporary possession has been taken under this article, the undertaker shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land. 6 The undertaker shall pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article. 7 Any dispute as to a person’s entitlement to compensation under paragraph (6) above, or as to the amount of the compensation, shall be determined under Part I of the Land Compensation Act 1961. 8 Without prejudice to article 20 below, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (6) above. 9 Where the undertaker takes possession of land under this article, it shall not be required to acquire the land or any interest in it. 10 In this article– a “the maintenance period”, in relation to a scheduled work, means the period of 5 years beginning with the date on which the work is opened for use, and b “building” includes structure or any other erection. PART IV PROVISIONS RELATING TO TIDAL WORKS Tidal works not to be executed without approval of Secretary of State 11 1 A tidal work shall not be constructed, altered, replaced or re-laid except in accordance with plans and sections approved by the Secretary of State and subject to any conditions and restrictions imposed by him before the work is begun. 2 If a tidal work is constructed, altered, replaced or re-laid in contravention of this article or of any condition or restriction imposed under this article– a the Secretary of State may by notice in writing require the undertaker at its own expense to remove the tidal work or any part thereof and restore the site thereof to its former condition; and if, on the expiration of a period of 30 days from the date on which the notice is served, it has failed to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice; or b if it appears to the Secretary of State urgently necessary so to do, he may remove the tidal work, or part of it, and restore the site to its former condition, and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the undertaker. Lights on tidal works 12 1 The undertaker shall at or near a tidal work during the whole time of the construction, extension, enlargement, alteration, replacement or relaying thereof, exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as the Secretary of State or the Authority or as, failing agreement between them, the Secretary of State shall from time to time direct. 2 If the undertaker fails to comply with any requirement of a direction given under paragraph (1) above, it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. Provisions against danger to navigation 13 1 In the case of injury to, or destruction or decay of, a tidal work or any part thereof the undertaker shall as soon as reasonably practicable notify Trinity House and the Authority and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House or the Authority or failing agreement between them, as Trinity House may from time to time direct. 2 If the undertaker fails to notify Trinity House and the Authority as required by paragraph (1) above or to comply with any requirement of a direction under it, the undertaker shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. Abatement of works abandoned or decayed 14 1 Where a tidal work is abandoned, or suffered to fall into decay, the Secretary of State or the Authority may by notice in writing require the undertaker at its own expense either to repair and restore the work or any part thereof, or to remove the work and restore the site thereof to its former condition, to such an extent and within such limits as the Secretary of State and the Authority shall agree or, failing agreement between them, as the Secretary of State thinks fit. 2 Where– a a work consisting partly of a tidal work and partly of works on or over land above the level of high water is abandoned or suffered to fall into decay; and b that part of the work on or over land above the level of high water is in such a condition as to interfere, or to cause reasonable apprehension that it may interfere, with the right of navigation or other public rights over the foreshore, the Secretary of State or the Authority may include that part of the work, or any portion thereof, in any notice under paragraph (1) above. 3 If, at the expiration of a period of 30 days starting with the date on which a notice under this article is served, the undertaker has failed to comply with the requirements of the notice, the Secretary of State or the Authority may execute the work specified in the notice and any expenditure incurred by either of them in so doing shall be recoverable from the undertaker. Survey of tidal works 15 If either of them deems it expedient, the Secretary of State or the Authority may at any time order a survey and examination of a tidal work or of the site upon which it is proposed to construct the tidal work, and any expenditure incurred by either of them in relation to any such survey and examination shall be recoverable from the undertaker. Permanent lights on tidal works 16 1 After the completion of a tidal work the undertaker shall at the outer extremity thereof exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as Trinity House or the Authority or, failing agreement between them, Trinity House may from time to time direct. 2 If the undertaker fails to comply in any respect with a direction given under this article, it shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. PART V PROTECTIVE PROVISIONS Protection of Port of Tyne Authority 17 1 For the protection of the Authority, the following provisions shall have effect and shall apply save as otherwise agreed in writing between the undertaker and the Authority. 2 Section 3(3)(a) of the Port of Tyne Act 1990 (which exempts works specifically authorised by any enactment from the prohibition on carrying out works without a works licence granted under that Act) shall not apply in the case of the authorised works. 3 The undertaker shall at all reasonable times during construction of the authorised works and thereafter allow the Authority, their servants and agents, access to those works and all reasonable facilities for inspecting any tidal work. 4 After the purpose of any temporary works has been accomplished, or after a reasonable period of notice in writing from the Authority requiring it so to do, the undertaker shall with all reasonable dispatch, remove any such temporary works or any materials relating thereto which may have been placed below the level of high water by or on behalf of the undertaker and, on its failing so to do within a reasonable period after receiving such notice, the Authority may remove the same and charge the undertaker with the reasonable expense of so doing, which expense the undertaker shall repay to the Authority. 5 If, during the construction of a tidal work or within 10 years after the completion of such work and as a consequence (whether in whole or in part) of its construction, there is caused or created an accumulation or erosion, the undertaker, if so requested by the Authority before or within the period of 10 years after such completion or exercise, shall remedy such accumulation or erosion in the manner specified in paragraph (7) below and, if it refuses or fails so to do, the Authority may themselves cause the work to be done and may recover the reasonable cost thereof from the undertaker. 6 Should any accumulation or erosion in consequence of such construction arise within the period of 10 years mentioned in paragraph (5) above and be remedied in accordance with paragraph (7) below, any recurrence of such accumulation or erosion shall from time to time be so remedied by the undertaker during that period of 10 years and at any time thereafter, save that the undertaker’s obligation under this paragraph shall cease in the event that following the remedying of any accumulation or erosion a period of 10 years elapses from the completion of that remedying, without any further accumulation or erosion being caused or created in consequence of such construction or exercise. 7 For the purpose of paragraphs (5) and (6) above– a in the case of an accumulation, the remedy shall be its removal; and b in the case of erosion, the remedy shall be the carrying out of such reconstruction works and other protective works or measures as may be necessary. 8 In the event that surveys, inspections, tests and sampling carried out pursuant to paragraph (11)(b) below establish that any accumulation or erosion mentioned in paragraphs (5) or (6) above would have been caused in any event by factors other than the construction of a tidal work, the undertaker shall be liable to remedy such accumulation or erosion only to the extent that the same is attributable to such construction as aforesaid. 9 For the purposes of paragraph (5) above the date of completion of a work shall be the date on which it is brought into use. 10 The undertaker shall– a pay to the Authority the reasonable costs incurred by the Authority of such alterations to the marking and lighting of the navigational channel of the river as may be necessary during or in consequence of the construction of a tidal work; b provide and maintain on any tidal works such fog signalling apparatus as may be reasonably required by the Authority and shall properly operate such apparatus during periods of restricted visibility for the purpose of warning vessels of the existence of the relevant works; and c afford to the Authority such facilities as they may reasonably require for the placing and maintenance on any tidal works of signals, tide-boards, tide-gauges or other apparatus for the safety or benefit of navigation. 11 Without prejudice to the other provisions of this article, the undertaker shall be responsible for, and make good to the Authority, all losses, costs, charges, damages and expenses however caused (including a proper proportion of the overhead charges of the Authority) which may reasonably be incurred or occasioned to the Authority by reason of or arising from or in connection with– a the inspection of any of the tidal works by the Authority or their duly authorised representative; b the carrying out of surveys, inspections, tests and sampling within and of the river (including the bed and banks of the river)– i to establish the marine conditions prevailing prior to the construction of any of the tidal works in such area of the river as the Authority have reasonable cause to believe may subsequently be affected by any siltation, scouring or other alteration which the undertaker is liable to remedy under this article; and ii where the Authority have reasonable cause to believe that the construction of any of the tidal works is causing or has caused any siltation, scouring or other alteration as aforesaid; c the construction of any of the tidal works or the failure of any of the tidal works or the undertaking by the Authority of works or measures to prevent or remedy danger or impediment to navigation or damage to any property arising from such construction, exercise or failure; and d any act or omission of the undertaker or its servants or agents whilst engaged in the construction or operation of any of the tidal works. 12 Without prejudice to the generality of paragraph (11) above, the undertaker shall indemnify the Authority from and against all claims and demands arising out of, or in connection with, such construction, exercise, failure or act or omission as is mentioned in that paragraph. 13 Nothing in this article shall impose any liability on the undertaker to the extent that any losses, costs, charges, damages, expenses, claims or demands referred to in paragraphs (11) and (12) above are attributable to negligence on the part of the Authority or of any person in their employ or of their contractors or agents. 14 The Authority shall give to the undertaker notice of any claim or demand in relation to which the undertaker may be liable under this article and no settlement or compromise of any such claim or demand shall be made without the consent in writing of the undertaker. 15 The fact that any work or thing has been executed or done with the consent of the Authority and in accordance with any conditions or restrictions prescribed by the Authority or in accordance with plans approved or deemed to be approved by the Authority or to their satisfaction or in accordance with any directions or award of an arbitrator or in accordance with any plans approved by the Secretary of State and any conditions or restrictions imposed by him shall not relieve the undertaker from any liability under the provisions of this article. 16 With the exception of any duty owed by the Authority to the undertaker which is expressly provided for in the foregoing provisions of this article, nothing in this Order shall be construed as imposing upon the Authority either directly or indirectly, any duty or liability to which the Authority would not otherwise be subject and which is enforceable by proceedings before any court. 17 Nothing in this Order shall affect prejudicially any statutory or other rights, powers or privileges vested in, or enjoyed by, the Authority or the harbour master at the date of making of this Order. 18 In this article– “accumulation” means any accumulation of silt or other material which constitutes an impediment to navigation; “construction” includes execution and placing, maintenance, extension, enlargement and relaying, and “constructed” shall be construed accordingly; “erosion” means any erosion of the bed or banks of the river or other structure of whatever nature; “plans” includes arrangements, sections, descriptions, drawings and specifications; “the river” means the River Tyne. PART VI MISCELLANEOUS AND GENERAL Saving for Trinity House 18 Nothing in this Order shall prejudice or derogate from any of the powers, rights or privileges, or the jurisdiction or authority of, Trinity House. Certification of plans etc. 19 The undertaker shall, as soon as practicable after the making of this Order, submit copies of the deposited sections, the deposited plans and the book of reference to the Secretary of State for certification that they are true copies of, respectively, the sections, the plans and the book of reference 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. Service of notices 20 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 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) above 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. 6 This article does not apply to a notice given in accordance with article 5(4) above. No double recovery 21 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. Arbitration 22 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. Signed by authority of the Secretary of State for the Environment, Transport and the Regions A S D Whybrow Head of Charging and Local Transport Division, Department of the Environment, Transport and the Regions 27th April 1999