Article 10 Construction and maintenance of new or altered streetsI1
England, Wales and Scotland
Any highway work constructed under this Order must be completed to the reasonable satisfaction of the highway authority.
When Network Rail considers that a highway work has been completed, except for any minor item not affecting safety, it must apply to the highway authority in accordance with the provisions of article 44 (procedure in relation to certain approvals etc. other than under Schedule 2) for its approval of the standard to which the work has been carried out.
In the case of a new street, Network Rail must, within 28 days of receiving the approval or deemed approval of the highway authority under article 44, vest the street in the highway authority.
Upon the vesting of the new street in the highway authority, the highway authority must adopt it as a highway maintainable at the public expense.
In the case of a new street, regardless of its adoption by the highway authority, Network Rail must, for a period of 12 months beginning with the date of the highway authority’s approval or deemed approval under article 44 of the standard to which a highway work has been carried out under this Order, and unless otherwise agreed with the highway authority, remedy any defect in the street resulting from the carrying out of the work.
Any work by Network Rail to remedy a defect in a street under this article must be carried out to the reasonable satisfaction of the highway authority.
Network Rail must apply to the highway authority for its approval of the standard to which any remedial work under this article has been carried out.
Network Rail will continue to be liable for the maintenance of the structure of any bridge or tunnel carrying a street over or under any railway of Network Rail regardless of the adoption of the highway by the highway authority or the expiry of any defects period applicable to the street under this article.
In any action against Network Rail in respect of loss or damage resulting from any failure by it to remedy a defect under this article, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that Network Rail had taken such care as in all the circumstances was reasonably required to secure that the part of the street to which the action relates was not dangerous to traffic.
For the purpose of a defence under paragraph (9), the court must in particular have regard to the following matters—
the character of the street and the traffic which was reasonably to be expected to use it;
the standard of maintenance appropriate for a street of that character and used by such traffic;
the state of repair in which a reasonable person would have expected to find the street;
whether Network Rail knew, or could reasonably have been expected to know, that the condition of the part of the street to which the action relates was likely to cause danger to users of the street; and
where Network Rail could not reasonably have been expected to repair that part of the street before the cause of action arose, what warning notices of its condition had been displayed;
but for the purposes of such a defence it is not relevant to prove that Network Rail had arranged for a competent person to carry out or supervise the remedial work to the part of the street to which the action relates unless it is also proved that Network Rail had given the competent person proper instructions with regard to the remedial work to the street and that the competent person had carried out those instructions.
Nothing in this article—
prejudices the operation of section 87 of the 1991 Act (prospectively maintainable highways); and Network Rail is not, by reason of any duty under this article to remedy a defect in a street, to be taken to be a street authority in relation to that street for the purposes of Part 3 of that Act; or
has effect in relation to the street works with regard to which the provisions of Part 3 of the 1991 Act apply.
Annotations
Commencement
- I1
Art. 10 in force at 21.4.2014, see art. 1