Schedule 17 - Protective provisions Part 5 – Protection of British Waterways Board
375.Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker (or the Secretary of State, in relation to those provisions concerning the Secretary of State’s powers under the Act to acquire land) and the British Waterways Board (“the Board”) agree to vary them. The Board is a public corporation established under the Transport Act 1962 which owns and manages a network of waterways, comprising canal and river navigations, reservoirs and docks. A number of its waterways may be affected by the powers of the Act , including in particular, the river Lea, the Grand Union and Regents Canals and the West India Dock. These arrangements apply to “canals” which means any canal or waterway owned or managed by the Board, including land held or used for the canal (such as towing paths). The nominated undertaker’s works to which the provisions apply are any “specified works” defined as works in, across, under or within 15 metres of, or which may affect, any canal.
376.Paragraph 2 makes clear that in relation to land of the Board, the compulsory powers of the Secretary of State to acquire land will be limited to “what is reasonably necessary for, or in connection with, the construction, maintenance or operation of the works” authorised by the Act .
377.Paragraph 3 provides for the Board to approve plans of the specified works and in approving plans to be able to make reasonable requirements in relation to its canals. Such approval is not to be unreasonably withheld.
378.Paragraph 4 deals with the construction of the specified works (and any protective works). It provides in particular for these to be constructed to the Board’s reasonable satisfaction and with minimum disruption to traffic on the canals, for the Board to have advance notice of commencement of construction and the right to inspect the construction work.
379.Paragraphs 5 and 6 deal with deposits of materials on, in or over canals and discharge of water into canals. These operations will require the Board’s consent (which is not to be unreasonably withheld). The exercise of the powers of paragraph 8 of Schedule 2 to the Act to discharge water into watercourses is made subject, in relation to canals, to the terms of any consent given under these provisions.
380.Paragraph 7 provides protection for access to or along towing paths. If this is temporarily obstructed and there is no alternative means of access, the nominated undertaker is required (so far as is reasonably practicable) to provide a substitute. These requirements are in addition to the obligation in paragraph 5(2) and (5) of Schedule 3 to ensure reasonable pedestrian access to premises adjoining a highway which has been temporarily stopped up and to obtain the consent of the highway authority for such closures.
381.Paragraph 8 contains provision empowering the Board to give the nominated undertaker notice to act in circumstances where canal work is abandoned or is in such a condition that it does or may constitute a danger or interference with navigation. The Board may carry out remedial works at the nominated undertaker’s expense in the event of default by the nominated undertaker.
382.Paragraph 9 contains a general indemnity for the Board in respect of claims against it arising from damage to canals covered by the works and for the costs of making good such damage.
383.Paragraph 11 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of section 54 of the Act). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the appropriate Ministers who must have regard to any matters specified by the appropriate Ministers on making the appointment. The appropriate Ministers for this purpose are the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs acting jointly. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for the appropriate Ministers to be involved in the resolution of such disputes.