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STATUTORY INSTRUMENTS


2005 No. 1137

TRANSPORT AND WORKS, ENGLAND

TRANSPORT, ENGLAND

The Margate Pier (Turner Centre) Order 2005

  Made 8th April 2005 
  Coming into force 29th April 2005 


ARRANGEMENT OF ARTICLES


PART 1

PRELIMINARY
1. Citation and commencement
2. Interpretation

PART 2

WORKS PROVISIONS
3. Power to construct and maintain works
4. Power to deviate
5. Discharge of water
6. Safeguarding works to stone pier
7. Power to survey and investigate land, etc.
8. Obstruction of construction of works and misuse of works
9. Additional powers within tidal waters and tidal land
10. Prohibitions within tidal waters and tidal land
11. Protection of navigation

PART 3

TEMPORARY POSSESSION OF LAND
12. Temporary use of land for construction of works
13. Temporary use of land for maintenance of works
14. Suspension of private rights of way
15. Time limit for exercise of powers of acquisition

PART 4

PROTECTIVE PROVISIONS
16. Royal National Lifeboat Institution

PART 5

MISCELLANEOUS AND GENERAL
17. Transfer of powers
18. Certification of plans, etc.
19. Service of notices
20. No double recovery
21. Crown rights
22. Arbitration

SCHEDULES

  Schedule 1 Scheduled works

  Schedule 2 Protection of navigation

  Schedule 3 Land of which temporary possession may be taken

Whereas an application has been made to the Secretary of State, in accordance with the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000[
1] made under sections 6, 6A, 7 and 10 of the Transport and Works Act 1992[2] ("the 1992 Act"), for an Order under sections 3 and 5 of the 1992 Act;

     And whereas the Secretary of State is of the opinion that the primary object of this Order cannot be achieved by means of an order under the Harbours Act 1964[3];

     And whereas the Secretary of State having considered the objection made and not withdrawn, has determined to make an Order giving effect to the proposals comprised in the application with modifications which in his opinion do not make any substantial change in the proposals;

     And whereas notice of the Secretary of State's determination was published in the London Gazette on 31st March 2005;

     Now, therefore, the Secretary of State, in exercise of the powers conferred on him by sections 3 and 5 of, and paragraphs 1 to 5, 7, 8, 10,11, 15, 16 and 17 of Schedule 1 to, the 1992 Act and of all other powers enabling him in that behalf, hereby makes the following Order: - 



PART 1

PRELIMINARY

Citation and commencement
     1. This Order may be cited as the Margate Pier (Turner Centre) Order 2005 and shall come into force on 29th April 2005.

Interpretation
    
2.  - (1) In this Order - 

    (2) References in this Order to rights over land include references to rights to do, or to place and maintain, anything in or on land or in the air-space over its surface.

    (3) All directions, distances and dimensions stated in any description of works or powers shall be construed as if the words "or thereabouts" were inserted after each such reference.

    (4) Any references in this Order to a work identified by the number or number and letter of the work shall be construed as a reference to the work of that number or number and letter authorised by this Order.



PART 2

WORKS PROVISIONS

Power to construct and maintain works
     3.  - (1) The Council may construct and maintain the scheduled works.

    (2) Subject to article 4, the scheduled works shall be constructed in the lines or situations shown on the works plan and in accordance with the levels shown on the deposited sections.

    (3) Subject to paragraphs (5) to (8), the Council may carry out and maintain such of the following works as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the scheduled works, namely - 

    (4) Subject to paragraph (6), the Council may carry out and maintain such other works (of whatever nature) as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the scheduled works.

    (5) Paragraphs (3)(a), (f) and (g) shall only authorise the carrying out or maintenance of works within the limits of deviation.

    (6) Paragraph (3)(b) and (4) shall only authorise the carrying out and maintenance of works on the stone pier.

    (7) Paragraph (3)(c) and (d) shall only authorise the carrying out and maintenance of works within such part of the Order limits as lies below the level of mean high water springs.

    (8) Paragraph (3)(e) shall only authorise the carrying out or maintenance of works within the Order limits.

Power to deviate
    
4.  - (1) In constructing or maintaining any of the scheduled works, the Council may - 

    (2) Without prejudice to the generality of paragraph (1), in constructing and maintaining Work No.1B the Council may, to the extent it thinks fit, deviate from the design of the bridge structure shown on the sections, including by varying the height or clearance above the level of the water underneath it.

Discharge of water
    
5.  - (1) The Council may use any watercourse or any public sewer or drain for the drainage of water in connection with the construction or maintenance of the authorised works and for that purpose may lay down, take up and alter pipes and may, on any land shown on the works plan within the limits of deviation, make openings into, and connections with, the watercourse, sewer or drain.

    (2) The Council shall not discharge any water into any watercourse, public sewer or drain except with the consent of the authority to which it belongs; and such consent may be given subject to such terms and conditions as the authority may reasonably impose but shall not be unreasonably withheld.

    (3) The Council shall not make any opening into any public sewer or drain except in accordance with plans approved by, and under the superintendence (if provided) of, the authority to which the sewer or drain belongs, but such approval shall not be unreasonably withheld.

    (4) The Council shall take such steps as are reasonably practicable to secure that any water discharged into a watercourse or public sewer or drain under the powers conferred by this article is as free as may be practicable from gravel, soil or other solid substance or oil or matter in suspension.

    (5) This article does not authorise the entry into controlled waters of any matter whose entry or discharge into controlled waters is prohibited by section 85(1), (2) or (3) of the Water Resources Act 1991[
7].

    (6) In this article - 

Safeguarding works to stone pier
     6.  - (1) Subject to the following provisions of this article the Council may at its own expense and from time to time carry out such safeguarding works to that part of the stone pier lying within the Order limits as the Council considers to be necessary or expedient.

    (2) Safeguarding works may be carried out - 

    (3) For the purpose of determining how the functions under this article are to be exercised the Council may enter onto and survey any part of the stone pier falling within paragraph (1).

    (4) For the purpose of carrying out safeguarding works under this article to the stone pier the Council may (subject to paragraphs (5) and (6)) - 

    (5) Before exercising - 

the Council shall, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days' notice of its intention to exercise that right and in a case falling within sub-paragraph (a) or (c), specifying the safeguarding works proposed to be carried out.

    (6) Where notice is served under paragraph (5)(a), (c) or (d), the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the safeguarding works or to enter onto the stone pier or the land to be referred to arbitration under article 22.

    (7) The Council shall compensate the owners or occupiers of any land in relation to which the powers of this article have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

    (8) Where - 

the Council shall compensate the owners and occupiers of the stone pier for any damage sustained by them.

    (9) Without prejudice to article 20, nothing in this article shall relieve the Council from any liability to pay compensation under section 10(2) of the Act of 1965.

    (10) Any compensation payable under paragraph (7) or (8) shall be determined, in case of dispute, under Part I of the Act of 1961.

    (11) In this article "safeguarding works", in relation to the stone pier, means - 

Power to survey and investigate land, etc.
    
7.  - (1) The Council may, for the purposes of this Order - 

    (2) No land may be entered, or equipment placed or left on or removed from the land, under paragraph (1), 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 Council - 

    (4) The Council 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 the case of dispute, under Part I of the Act of 1961.

Obstruction of construction of works and misuse of works
    
8. Any person who, without reasonable excuse - 

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Additional powers within tidal waters and tidal land
    
9.  - (1) Without prejudice to the other powers conferred by this Order or otherwise available to it, the Council may within so much of the Order limits as lies within tidal waters or tidal land below the level of mean high water springs, for the purposes of or in connection with the construction of the authorised works and notwithstanding any interference thereby with any public or private rights - 

in such manner and to such extent as may appear to it to be necessary or convenient.

    (2) Except in the case of emergency, the Council will use its reasonable endeavours to notify the owner of any mooring and the owner or master of any vessel or structure affected by the proposal to exercise the powers of paragraph (1)(c) or (d) before the exercise of that power.

Prohibitions within tidal waters and tidal land
     10.  - (1) Notwithstanding anything in any other enactment or rule of law but subject to the provisions of this article, the Council may, after consulting the harbour master (if any), at any time when it appears to the Council necessary or desirable for the purposes of the construction of the authorised works, by direction close to navigation by all vessels or by any class of vessel the whole or any part of the area within so much of the Order limits as lies within tidal waters or tidal land below the level of mean high water springs.

    (2) A direction under paragraph (1) shall specify the duration of the closure, the area affected and the vessel to which it applies.

    (3) A person may not, without the written consent of the Council, within any part of the area within the Order limits, during a period when it is closed to navigation under this article - 

    (4) Any person who contravenes the requirements of paragraph (3) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

    (5) Except in an emergency, the Council shall publish notice of any direction given under paragraph (1) in a newspaper circulating in the District of Thanet not less than 14 days before the direction is to take effect.

    (6) In giving a direction pursuant to paragraph (1), the Council shall ensure that no greater area is closed to navigation at any time by all vessels, or by any class of vessel, than is at that time necessary in the circumstances.

    (7) A direction given under this article may be varied or revoked by a subsequent direction given under this article.

Protection of navigation
    
11. Schedule 2 to this Order shall have effect.



PART 3

TEMPORARY POSSESSION OF LAND

Temporary use of land for construction of works
    
12.  - (1) The Council may, in connection with the carrying out of the authorised works - 

    (2) Not less than 28 days before entering upon and taking temporary possession of land under this article the Council shall serve notice of the intended entry on the owners and occupiers of the land.

    (3) The Council 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 works specified in relation to that land in column (4) of Schedule 3 to this Order.

    (4) Before giving up possession of land of which temporary possession has been taken under this article, the Council shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the Council shall not be required to replace a building removed under this article.

    (5) The Council 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), or as to the amount of the compensation, shall be determined under Part I of the Act of 1961.

    (7) Without prejudice to article 20, nothing in this article shall affect any liability to pay compensation under section 10(2) of the Act of 1965 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).

    (8) Where the Council takes possession of land under this article, they shall not be required to acquire the land or any interest in it.

    (9) In this article "building" includes any structure or other erection.

Temporary use of land for maintenance of works
    
13.  - (1) At any time during the maintenance period relating to any of the scheduled works, the Council may - 

    (2) Paragraph (1) shall not authorise the Council to take temporary possession of - 

    (3) Not less than 28 days before entering upon and taking temporary possession of land under this article the Council shall serve notice of the intended entry on the owners and occupiers of the land.

    (4) The Council 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 Council shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.

    (6) The Council 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), or as to the amount of the compensation, shall be determined under Part I of the Act of 1961.

    (8) Without prejudice to article 20, nothing in this article shall affect any liability to pay compensation under section 10(2) of the Act of 1965 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).

    (9) Where the Council takes possession of land under this article, they shall not be required to acquire the land or any interest in it.

    (10) In this article - 

Suspension of private rights of way
    
14.  - (1) All private rights of way over land of which the Council take temporary possession under this Order shall be suspended and unenforceable for as long as the Council remain in lawful possession of the land.

    (2) Any person who suffers loss by the suspension of any right under this article shall be entitled to compensation to be determined, in default of agreement, under and in accordance with the Act of 1961.

Time limit for exercise of powers of acquisition
    
15. The power conferred by article 12 to enter upon and take temporary possession of land shall cease at the end of the period of 3 years beginning with the day on which this Order comes into force.



PART 4

PROTECTIVE PROVISIONS

Royal National Lifeboat Institution
    
16.  - (1) Nothing in this Order shall prevent or unduly interfere with the carrying on of the Royal National Lifeboat Institution's lifeboat rescue service.

    (2) In particular, nothing in article 10 shall apply to any vessel used by the Royal National Lifeboat Institution in carrying out that service.



PART 5

MISCELLANEOUS AND GENERAL

Transfer of powers
    
17.  - (1) The Council may enter into, and carry into effect, agreements for the transfer to another person of all or any of the powers conferred on the Council by this Order.

    (2) The exercise of any powers of this Order by any other person in accordance with an agreement under paragraph (1) shall be subject to the same obligations and liabilities under this Order as would apply if that power were exercised by the Council.

    (3) Not later than 21 days after entering into any such agreement the Council shall give written notice to the Secretary of State and to Trinity House stating the name and address of the person to whom the powers are being transferred and the date when the transfer is to take effect.

    (4) The powers under paragraph (1) may be exercised by any person to whom powers have been transferred under that paragraph.

    (5) Any agreement or undertaking entered into by the Council in connection with the promotion of this Order shall, so far as relevant to any functions, powers or duties under this Order exercisable by the transferee under an agreement made under paragraph (1), be binding on the transferee.

Certification of plans, etc.
    
18. The Council shall, as soon as practicable after the making of this Order, submit copies of the book of reference, the land plan, the deposited sections and the works plan to the Secretary of State for certification that they are true copies of, respectively, the book of reference, the deposited sections and plans 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
    
19.  - (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[
10] 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 - 

    (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 - 

    (5) This article shall not be taken to exclude the employment of any method of service not expressly provided for by it.

No double recovery
     20. 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, or under two or more different provisions of this Order.

Crown rights
    
21.  - (1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown, and in particular, nothing in this Order authorises the Council to take, use, enter upon or in any manner interfere with any land, hereditaments, or rights of whatsoever description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary) - 

    (2) A consent under paragraph (1) may be given unconditionally or subject to such conditions or upon such terms as may be considered necessary or appropriate.

Arbitration
    
22. 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.



Signed by authority of the Secretary of State


Ellis Harvey
Head of the Transport and Works Act Orders Unit Department for Transport

8th April 2005



SCHEDULE 1
Article 2(1)


SCHEDULED WORKS


In the District of Thanet - 

An extension to the stone pier comprising the following - 



SCHEDULE 2
Article 11


PROTECTION OF NAVIGATION


     1. In this Schedule - 

Tidal Works

     2.  - (1) A tidal work shall not be constructed or altered 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 paragraph or any condition or restriction imposed under this paragraph - 

    (3) If at the end of 28 days from the date when notice is served on the Council under sub-paragraph (2)(a) it has failed to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice.

Provision against danger to navigation

     3.  - (1) In case of injury to, or destruction or decay of, a tidal work or any part thereof the Council shall as soon as reasonably practicable notify Trinity House and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House may from time to time direct.

    (2) If the Council fail to notify Trinity House as required by sub-paragraph (1) or to comply in any respect with a direction given under the said sub-paragraph, they 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

     4.  - (1) Where a tidal work is abandoned, or suffered to fall into decay, the Secretary of State may by notice in writing, require the Council at their own expense - 

    (2) Where - 

the Secretary of State may include that part of the work, or any portion of it, in any notice under sub-paragraph (1).

    (3) If at the end of the period of 28 days from the date when notice is served on the Council under sub-paragraph (1) they have failed to comply with the requirements of the notice the Secretary of State may execute the works specified in the notice.

Survey of works

     5. The Secretary of State may at any time, if he deems it expedient, order a survey and examination of a tidal work or of the site upon which it is proposed to construct the work, and any expenditure incurred by the Secretary of State in any such survey and examination shall be recoverable from the Council.

Permanent lights etc.

     6.  - (1) After the completion of a tidal work the Council shall at the outer extremity of every tidal work exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House shall from time to time direct.

    (2) If the Council fail to comply in any respect with a direction given under this paragraph, they shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale; but it shall be a defence for the Council to prove that all due diligence was used to secure compliance with the direction.

Lights on works during construction

     7.  - (1) The Council shall at or near a tidal work during the whole time of the construction, alteration, replacement, or reconstruction of the work 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 may from time to time direct.

    (2) If the Council fail to comply in any respect with a direction given under this paragraph, they shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale; but it shall be a defence for the Council to prove that all due diligence was used to secure compliance with the direction.

Expenses

     8. The Secretary of State may recover from the Council any expenditure incurred by him under paragraphs 2(2)(b) or (3) or 4(3).



SCHEDULE 3
Article 12


LAND OF WHICH TEMPORARY POSSESSION MAY BE TAKEN


(1) (2) (3) (4)
Location Number and description of land shown on land plan Purpose for which temporary possession may be taken Authorised work
District of Thanet No. 3. Part of the stone pier. Temporary works area and access to works Work Nos. 1A and 1B
District of Thanet No. 4. Storage hut and part of the stone pier. Temporary works area and access to works Work Nos. 1A and 1B
District of Thanet No. 5. Storage hut and part of the stone pier. Temporary works area and access to works Work Nos. 1A and 1B
District of Thanet No. 6. Storage hut and part of the stone pier. Temporary works area and access to works Work Nos. 1A and 1B
District of Thanet No. 7. Storage hut and part of the stone pier. Temporary works area and access to works Work Nos. 1A and 1B
District of Thanet No. 8. Area of sea, fundus, foreshore and slipway to the south of Margate Pier. Temporary works area Work Nos. 1A, 1B and 2
District of Thanet No. 9. Council office building (Droit House). Temporary works area and access to works Work Nos. 1A, 1B and 2
District of Thanet No. 11. Car and Coach park, hardstanding, access ways, part of slipway. Temporary works area and access to works Work Nos. 1A, 1B and 2
District of Thanet No. 12. Hardstanding providing site for ice cream van. Temporary works area and access to works Work Nos. 1A, 1B and 2



EXPLANATORY NOTE

(This note is not part of the Order)


This Order authorises Kent County Council to construct an extension to the existing stone pier at Margate Harbour, consisting of a new building to be used primarily as an art gallery and for leisure and educational purposes. The building will be connected to the stone pier by a bridge structure and will be named Turner Contemporary.

Copies of the Order, plans, the sections and the book of reference are available for inspection free of charge during office hours at the offices of Kent County Council, Invicta House, County Hall, Maidstone, Kent ME14 1XX.


Notes:

[1] S.I. 2000/2190.back

[2] 1992 c. 42, as amended by S.I. 1995/1541 and 1998/2226.back

[3] 1964 c. 40.back

[4] 1961 c. 33.back

[5] 1965 c. 56.back

[6] S.I. 1993/1313.back

[7] 1991 c. 57.back

[8] 1964 c. 40.back

[9] 1995 c. 21.back

[10] 1978 c. 30.back



ISBN 0 11 072813 0


 © Crown copyright 2005

Prepared 18 April 2005


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