PART 6OPERATIONS

Power to operate, use and close the tunnel area

44.—(1) The undertaker may operate and use the tunnel area in its capacity, and for the purposes of its functions, as a highway authority.

(2) The undertaker may, whenever in its opinion it is necessary to do so, close the tunnel area, whether wholly or partially.

(3) Where the undertaker proposes to close the tunnel area under paragraph (2), it must except in an emergency—

(a)give not less than 7 days’ notice to the relevant local authorities in such other manner as the undertaker considers appropriate; and

(b)throughout the period of such closure display signs at convenient situations on the roads communicating with the tunnel area giving warning of the closure.

(4) The power to operate and close the tunnel area under this article will only apply and have effect from the date when the tunnel area is completed and open for public use.

(5) In this article—

“emergency” means any circumstance whether existing or imminent, which the undertaker considers is likely to cause danger to—

“relevant local authorities” means Kent County Council, Thurrock Council, and Gravesham Borough Council.

Road user charging

45.—(1) Subject to the following paragraphs, the date when the tunnels are completed and open for traffic, the Secretary of State may impose road user charges in respect of motor vehicles using the tunnel area in accordance with Schedule 12 (road user charging provisions for use of the Lower Thames Crossing).

(2) Without prejudice to, and notwithstanding, any enactment, the Secretary of State may, with such terms and conditions as the Secretary of State may determine, transfer the power to impose road user charges under paragraph (1) to any person or body.

(3) Where the Secretary of State transfers the power to impose road user charges pursuant to paragraph (2)—

(a)The Secretary of State must publish a notice of that transfer in such manner as the Secretary of State considers appropriate to bring the transfer to the attention of all persons who are likely to be affected by it;

(b)The Secretary of State may revoke or vary that transfer where they deem a revocation or variation is reasonably necessary or expedient;

(c)That person or body may not transfer the power without the consent of the Secretary of State; and

(d)Paragraph (1) of this article, article 46 (suspension of road user charging) and Schedule 12 are to be construed so that references to the Secretary of State are references to that person or body.

Suspension of road user charging

46.—(1) The Secretary of State may suspend the operation of any road user charge imposed under article 45 (road user charging) if they consider that it is necessary to do so—

(a)in the event of an emergency, to enable or facilitate any action taken in response to the emergency; or

(b)to enable or facilitate a temporary event to take place.

(2) A suspension under this article is for such period as the Secretary of State considers necessary—

(a)in the case of an emergency, to enable or facilitate the response to the emergency (but in any event no longer than 30 days); or

(b)in the case of a temporary event, to enable or facilitate the event to take place, together with any associated works undertaken before or after it.

(3) A suspension under this article may be in whole or in part; and if the road user charge is suspended in part that suspension may be in respect of—

(a)any road in respect of which charges are imposed;

(b)any event by reference to the happening of which a charge is imposed; or

(c)any class of motor vehicle in respect of which charges are imposed.

(4) The Secretary of State must publish a notice of any suspension under this article and such notice must—

(a)be published in such manner as the Secretary of State considers appropriate to bring the suspension to the attention of all persons who are likely to be affected by it; and

(b)state the period for which the charge is likely to be suspended.

(5) In the case of a suspension under paragraph (1)(a), the Secretary of State must keep under review the need for the suspension to continue, and may increase or reduce the period for which the charge is to be suspended, but may not increase it so as to suspend the scheme for a period of more than 30 days.

(6) In this article “emergency” means any circumstance whether existing or imminent, which the Secretary of State considers is likely to cause danger to persons or property, or the environment.

No apparatus in the tunnel area without consent

47.  Regardless of anything contained in any enactment, no person is to enter upon, breakup or interfere with the tunnel or tunnel area, or any part of it, for the purpose of placing or doing anything in or in relation to any sewer, drain, main, pipe, wire or other apparatus or executing any work except with the written consent of the undertaker and in accordance with such terms and conditions as the undertaker may determine, including as to payment, such consent not to be unreasonably withheld and any disputes as to failure to consent or over terms and conditions to be subject to the arbitration provisions in article 64 (arbitration).

Protection of the tunnel area, etc.

48.—(1) Subject to paragraph (2) —

(a)the PLA must not, whether under the 1968 Act or otherwise, carry out, or grant a river works licence or a river dredging licence to carry out the restricted first and second protection zone activities; and

(b)no other person may carry out the restricted first and second protection zone activities,

without the consent of the undertaker.

(2) Notwithstanding paragraph (1), a consent under that paragraph is not required in connection with—

(a)the PLA carrying out or granting a river works licence or a river dredging licence to carry out the exempt second protection zone activities; or

(b)any other person carrying out the exempt second protection zone activities.

(3) Any consent given to the PLA under this article to carry out or grant a river works licence or a river dredging licence is a consent for the purposes of this article to the holder of that licence to carry out any restricted first and second protection zone activities authorised by that licence.

(4) If the PLA or any other person contravenes the provisions of paragraph (1), the undertaker may by notice in writing require the PLA or any other person that has contravened the provision of paragraph (1) to remove or abate any works to which the contravention relates (in accordance with the reasonable requirements of the undertaker) within a reasonable time specified in the notice and to restore the part of the river Thames or land concerned to its former condition and make good any impairment or damage to the tunnel area.

(5) If the person to whom a notice under paragraph (4) is given fails to comply with that notice, the undertaker may carry out the work required by the notice and recover the costs of so doing from that person.

(6) A consent under this article may be given unconditionally or subject to terms and conditions and must not be unreasonably withheld.

(7) If the undertaker receives an application for consent under this article from the PLA and fails to notify the sender of its decision before the end of the period of 28 days beginning with the date after the application was made, it is deemed to have granted consent.

(8) The undertaker must—

(a)designate the person to whom an application for consent should be made under paragraph (1) and may from time to time alter any such designation; and

(b)give the PLA written notification of any such designation.

(9) From the date Work No. 5A or Work No. CA5 is commenced, the permission under Part IX of the Dangerous Substances in Harbour Areas Regulations 1987(1) to anchor or berth vessels in the area identified as Higham bight anchorage under the licence dated 28 May 1992 with the reference 9/92 may not be varied or otherwise modified without the consent of the undertaker, and that licence ceases to have effect insofar as the vessel is carrying—

(a)substances or articles which have a mass explosion hazard;

(b)substances or articles which have a projection hazard; or

(c)any other substances or articles which—

(i)may affect the safe construction, maintenance or operation of the tunnel area and which are designated for the purposes of this sub-paragraph by the undertaker with the agreement of the Health and Safety Executive and the PLA; and

(ii)following a designation under sub-paragraph (i), have been published on a website operated by the undertaker or the Health and Safety Executive.

(10) In this article —

“any other activity” includes any activity which constitutes a “material operation” under section 56(4) of the 1990 Act or “works” under the 1968 Act;

“commenced” has the same meaning as the definition of commence in Schedule 2 (requirements) to this Order;

“the restricted first and second protection zone activities” means the following activities within the part of the river Thames that is situated within the first protection zone or second protection zone shown on the river restrictions plan—

“river works licence” means a licence granted by the PLA under section 66 (licensing of works) of the 1968 Act;

“river dredging licence” means a licence granted by the PLA under section 73 (licensing of dredging, etc.) of the 1968 Act;

“the exempt second protection zone activities” means the following activities within the part of the river Thames that is situated within the second protection zone shown on the river restrictions plan—

Removal of vehicles

49.—(1) If any obstruction is caused by a vehicle waiting, loading, unloading or breaking down in the tunnel area, the person in charge of the vehicle must immediately remove it; and if that person fails to do so an authorised person may take all reasonable steps to remove the obstruction.

(2) An authorised person who removes a vehicle under paragraph (1) may do so by towing or driving the vehicle or in such other manner as the authorised person may think necessary and may take such measures in relation to the vehicle as the authorised person considers necessary to enable the vehicle to be removed.

(3) Where an authorised person requires a person to remove a vehicle which is causing an obstruction in the circumstances described under paragraph (1) and the authorised person determines that the manner of removal proposed by the person required to remove it may cause danger to other persons using the road, the authorised person may require the vehicle to be moved in such other manner as the authorised person considers safe or may remove or arrange for the removal of the vehicle if the person required to remove it refuses to remove it in the manner so required.

(4) A vehicle removed by an authorised person under this article—

(a)may be returned immediately to the person in charge of that vehicle; or

(b)where immediate return of that vehicle to the person in charge of it is not practicable or appropriate, must be delivered to the undertaker or to a person authorised by the undertaker to keep vehicles so removed (“the custodian” in either case).

(5) The custodian is entitled to recover the relevant charges from any person responsible and the custodian is entitled to retain custody of the vehicle until that sum is paid.

(6) The custodian may dispose of a vehicle (including its contents) at any time after its removal—

(a)where the owner of the vehicle has disclaimed all rights of ownership of the vehicle;

(b)where in the opinion of the authorised person the vehicle is in such a condition that it ought to be destroyed;

(c)in the case of a vehicle, not falling within sub-paragraph (a) or (b), which—

(i)does not display a licence (whether current or otherwise and whether or not the vehicle is required to display a licence); and

(ii)does not display any registration mark (whether indicating registration within or outside the United Kingdom).

(7) In a case to which paragraph (6) does not apply, the custodian must—

(a)if the vehicle carries a United Kingdom registration mark, ascertain from records kept by the Secretary of State under the Vehicle Excise and Registration Act 1994(2) the name and address of the person by whom the vehicle is kept; or

(b)if the vehicle does not carry such a registration mark, make such inquiries as appear to the custodian reasonably practicable to ascertain the owner of the vehicle.

(8) If the custodian, having taken the relevant steps required under paragraph (7), is unable to ascertain the name and address of the owner of the vehicle, the custodian may dispose of the vehicle.

(9) A custodian who has ascertained the name and address of the owner of the vehicle must issue a notice to the owner at the owner’s address in the form prescribed in paragraph (10).

(10) A notice under paragraph (9) must set out—

(a)the specified information;

(b)the place to which the vehicle has been removed;

(c)that if the recipient is the owner of the vehicle, the recipient is required to remove the vehicle from the custody of the custodian and pay the relevant charges within a period not less than 7 days beginning with the day on which the notice is served; and

(d)that the custodian intends to dispose of the vehicle if it is not removed within that period.

(11) If the person to whom the notice issued under paragraph (9) fails to comply with all of its requirements, the custodian may dispose of the vehicle at any time after the date specified in the notice in accordance with paragraph (10).

(12) As soon as reasonably practicable following the disposal of a vehicle under this article the custodian must—

(a)where the vehicle carried a GB registration mark or a mark indicating registration in Northern Ireland, give information relating to the disposal to—

(i)the Secretary of State;

(ii)the chief officer of the police force in whose area the vehicle was removed under paragraph (1); and

(iii)HPI Ltd;

(b)where the vehicle carried a mark indicating registration outside the United Kingdom, give information relating to the disposal to—

(i)the Secretary of State;

(ii)the Commissioners of Customs and Excise; and

(iii)the chief officer of the police force in whose area the vehicle was removed under paragraph (1);

(c)where the vehicle did not carry any registration mark, give information relating to the disposal to the chief officer of the police force in whose area the vehicle was removed under paragraph (1); and

(d)in the case of any vehicle, information relating to the disposal must be given to any person who appears to the custodian to have been the owner of the vehicle immediately before it was disposed of.

(13) A person (“the claimant”) may take possession of a vehicle (with its contents) which has been removed and delivered to a custodian and has not been disposed of under this article, if—

(a)the claimant satisfies the custodian that the claimant is the owner of the vehicle or that the claimant is authorised by the owner to take possession of the vehicle;

(b)all outstanding relevant charges are paid to the custodian; and

(c)the claimant takes possession of the vehicle within seven days of the custodian being satisfied of the matter in paragraphs (a) and (b).

(14) If before the end of the period of one year beginning with the date on which a vehicle is disposed of pursuant to this article, a person claims to have been the owner of the vehicle at the time when it was disposed of and—

(a)the person claiming satisfies the custodian that the person so claiming was the owner of the vehicle at the time it was disposed of;

(b)the claim is made before the end of the period of one year beginning with the date on which the vehicle was disposed of; and

(c)no previous claim in respect of the vehicle has been made,

the specified sum is payable by the custodian to the owner.

(15) Where it appears to the custodian of a vehicle that more than one person is the owner, the custodian must treat the first person who makes a claim that satisfies the conditions set out in paragraphs (13) and (14) as the owner for the purposes of this article.

(16) For the purposes of this article—

(a)the owner of a vehicle is taken to be the person by whom the vehicle is kept and in determining for those purposes who was the owner of the vehicle at any time, it is presumed (unless the contrary appears) that the owner was the person in whose name the vehicle was at that time registered under the Vehicle Excise and Registration Act 1994; and

(b)“breaking down” includes by way of a mechanical or technological defect, lack of fuel, oil, water or power required for the vehicle or any other circumstances in which a person in charge of the vehicle could not immediately, safely and without damage to the vehicle or its accessories drive it under its own power away from the tunnel area.

(17) In this article—

“GB registration mark” means a registration mark issued in relation to a vehicle under the Vehicle Excise and Registration Act 1994;

“HPI Ltd” means HPI Limited (company number 04068979), whose registered office is at Capitol House, Bond Court, Leeds, Yorkshire, England, LS1 5EZ, being a company incorporated under the Companies Act 1985 and includes its successors and assigns or any body which takes on its functions in relation to vehicle identification and registration;

“information relating to the disposal” means, in relation to a vehicle—

“owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, includes the person entitled to possession of the vehicle under the agreement;

“person responsible”, in relation to a vehicle, means—

“relevant charges” means the sums and charges prescribed by the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges) Regulations 2008(4);

“specified information”, in relation to a vehicle, means such of the following information as can be, or could have been, ascertained from an inspection of the vehicle, or has been ascertained from any other source—

“specified sum” means a sum calculated by deducting from the proceeds of sale the relevant charges that would have been payable had the vehicle been claimed by the owner immediately before its disposal; and

“vehicle” means any vehicle, whether or not it is in a fit state for use on roads, and includes any chassis or body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle.

Removal of obstructions

50.—(1) Where an obstruction or hazard is caused in the tunnel area by a load falling from a vehicle and the person in charge of the vehicle fails to remove it, an authorised person may take all reasonable steps to remove the load.

(2) An authorised person—

(a)may return a load which the authorised person has removed immediately to the person in charge of the vehicle from which it has fallen; or

(b)where a return of the load which the authorised person has removed to the person in charge of the vehicle from which it has fallen is not practicable or appropriate, must deliver the load to the undertaker or to a person authorised by the undertaker to keep loads so removed (“the custodian” in either case).

(3) The custodian must take reasonable steps to ascertain the identity of the owner of the load.

(4) Where the custodian has been able to ascertain contact details for the owner of the load, the custodian must notify such person that—

(a)the load is in possession of the custodian;

(b)the owner must take possession of the load within five weeks of the date of the notice;

(c)the owner may only take possession of the load on the payment of the custodian’s expenses in removing and storing the load; and

(d)the owner fails to act in accordance with the requirements in the notice, title in the load vests in the custodian

(5) Where the custodian has been unable to ascertain contact details for the owner of the load, the custodian may dispose of or sell the load as the custodian thinks fit.

(6) The custodian may recover any expenses reasonably incurred in the removal and storage of a load from the owner of the load.

(7) Unless the owner of the load acts in accordance with the requirements of a notice issued under paragraph (4), title in the load vests in the custodian on the date specified in the notice.

(8) Where a load consists of, or includes, liquids or semi-liquids or items which are loose or an aggregate, or noxious, perishable or otherwise hazardous or difficult to collect-up or remove an authorised person or custodian (as the case may be) may, as it sees fit, immediately wash, clean or clear away or remove the fallen load or otherwise dispose of it or sell it.

(9) In this article “vehicle” means any vehicle, whether or not it is in a fit state for use on roads, and includes any chassis or body, with or without wheels, appearing to have formed part of such a vehicle, and any load carried by, and anything attached to, such a vehicle.

Byelaws relating to the tunnel area

51.—(1) The undertaker may make byelaws regulating—

(a)the efficient management and operation of the tunnel area;

(b)travel in the tunnel area;

(c)the maintenance of order in the tunnel area; and

(d)the conduct of persons in the tunnel area.

(2) The byelaws contained in Schedule 13 (Lower Thames Crossing byelaws) have effect in relation to the tunnel area and continue to have effect until such time as they are amended or revoked by further byelaws made under paragraph (1) and in each case are to be treated as if they are byelaws that have been made by the undertaker under paragraph (1) and confirmed by the Secretary of State on the date this Order comes into force.

(3) Subject to paragraph (4) the provisions of subsection 236(3) to (8), and (11) (procedure, etc., for byelaws) of the Local Government Act 1972(5) apply in relation to byelaws (other than those in Schedule 13) made by the undertaker under paragraph (1) as if the undertaker were a local authority for the purposes of subsection 236(1) of the Local Government Act 1972.

(4) The undertaker may make byelaws under paragraph (1) in accordance with the procedure in the Byelaws (Alternative Procedure) (England) Regulations 2016(6) as if those regulations applied to the making and revoking of byelaws under this article.

(5) Byelaws made under this article are enforceable by the undertaker and any authorised person.

(6) A person who breaches a byelaw made under this article commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Fixed penalty notices relating to byelaws

52.—(1) This article applies where it appears to an authorised person that a person has committed an offence under byelaws made under article 51 (byelaws relating to the tunnel area).

(2) The authorised person may serve on that person a fixed penalty notice in respect of the offence.

(3) Where a person is given a fixed penalty notice under this article in respect of an offence—

(a)no proceedings may be instituted for that offence before the expiration of 14 days after the date of the notice; and

(b)that person may not be convicted of the offence if the fixed penalty is paid before the expiration of 14 days after the date of the notice.

(4) A fixed penalty notice must state—

(a)the amount of the fixed penalty;

(b)particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence;

(c)the time by which and the manner (including the number to be used for payments by credit or debit card) in which the fixed penalty must be paid; and

(d)that proceedings may be instituted if payment is not made within the time specified in the fixed penalty notice.

(5) The amount of the fixed penalty is—

(a)one fifth of the maximum amount of the fine to which the person to whom the fixed penalty notice is issued would be liable on summary conviction provided that person pays the fixed penalty in full within 7 days of issue of the fixed penalty notice; or

(b)one half of the maximum amount of the fine to which the person to whom the fixed penalty notice is issued would be liable on summary conviction.

(6) An authorised person may require a person to whom this article applies to pay a deposit of one tenth of the maximum amount of the fine to which a person may be liable under level 3 on the standard scale on accepting a fixed penalty notice if that person fails to provide, when requested, a residential address in the United Kingdom.

(7) Payment of the deposit must be paid by such means as the undertaker may specify on its website as being acceptable.

(8) The undertaker must apply the deposit towards payment of the fixed penalty.

(9) In any proceedings a certificate which—

(a)purports to be signed on behalf of an officer of the undertaker; and

(b)states that payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.