The British Waterways Board (Transfer of Functions) Order 2012

• Citation: S.I. 2012/1659
• Sections: 100

Section 1 Citation, commencement, extent and interpretation

(1) This Order may be cited as the British Waterways Board (Transfer of Functions) Order 2012.

(2) This Order comes into force on the day after the day on which it is made.

(3) The amendments, repeals and revocations made by article 7 and Schedules 2 and 3 have the same extent as the provisions to which they relate.

(4) In this Order—

(a) “the 1962 Act” means the Transport Act 1962 ;

(b) “the 1968 Act” means the Transport Act 1968 ;

(c) “the transfer date” means the day this Order comes into force.

Section 2 Transfer of statutory functions

(1) On the transfer date, the functions exercisable by the British Waterways Board—

(a) under or by virtue of the enactments listed in Schedule 1 (enactments conferring functions transferred by article 2), and

(b) under or by virtue of any local Act ,

are transferred, so far as exercisable in relation to England and Wales, to Canal & River Trust .

(2) Schedule 2 (which makes consequential provision to the 1962 Act and the 1968 Act) has effect.

(3) Schedule 3 (which makes consequential provision to public general Acts, Acts of the Scottish Parliament and subordinate legislation) has effect.

(4) Paragraphs (5) and (6) apply so far as is necessary for the purposes of, or in consequence of, paragraph (1).

(5) Any reference in an enactment which, by virtue of section 32 of, or Schedule 2 or 6 to, the 1962 Act , is to be read as a reference to the British Waterways Board is to be read in relation to England and Wales as a reference to Canal & River Trust.

(6) Subject to paragraph (5), any reference to (and any reference which is to be read as a reference to) the British Waterways Board—

(a) in any subordinate legislation made under or by virtue of any Act listed in Schedule 1 (other than subordinate legislation made under or by virtue of any section of the 1962 Act or the 1968 Act listed as an exception in that Schedule), or

(b) in any local Act or any subordinate legislation made under or by virtue of any such Act,

is to be read in relation to England and Wales as a reference to Canal & River Trust.

Section 3 Transfer of functions of harbour authority, navigation authority and statutory undertaker

(1) Where immediately before the transfer date—

(a) the functions of the British Waterways Board include, by virtue of any enactment, any functions of a harbour authority, navigation authority or statutory undertaker, and

(b) those functions are not otherwise transferred by this Order,

those functions become functions of Canal & River Trust in relation to England and Wales on that date.

(2) But paragraph (1) does not apply in relation to functions of a statutory undertaker under Part 10 of the Local Government, Planning and Land Act 1980 .

(3) In this article, “harbour authority”, “navigation authority” and “statutory undertaker” have, in relation to any function of the British Waterways Board exercisable by virtue of an enactment, the same meaning as in that enactment.

Section 4 Supplementary provision

(1) Nothing in this Order affects the validity of anything done (or having effect as if done) by or in relation to the British Waterways Board before the transfer date; and anything (including legal proceedings) which on that date is in the process of being done by or in relation to the British Waterways Board, so far as it relates to any of the transferred functions, may be continued by or in relation to Canal & River Trust.

(2) Anything done (or having effect as if done) by or in relation to the British Waterways Board, so far as it relates to any of the transferred functions, has effect, so far as is necessary for continuing its effect after the transfer date, as if done by or in relation to Canal & River Trust.

(3) In this article, “transferred functions” means the functions transferred by virtue of articles 2 and 3.

Section 5 Transitional provisions

(1) Schedule 4 (transitional provisions) has effect.

(2) Nothing in article 2 affects the application of section 44 of the 1968 Act (account by Minister of receipt and disposal of certain sums) so far as relating to—

(a) the period commencing on 1st April 2011 and ending on 31st March 2012, and

(b) the period commencing on 1st April 2012 and ending on the day before the transfer date.

Section 6 Savings

(1) Nothing in this Order affects the validity of the appointment of any person to the British Waterways Board made by the Scottish Ministers under section 1(2A)(b) of the 1962 Act as it had effect immediately before the transfer date.

(2) Nothing in this Order affects any order made under section 74 of, or Part 4 of Schedule 7 to, the 1962 Act and in force immediately before the transfer date.

Section 7 Revocation

The Regulatory Reform (British Waterways Board) Order 2003 is revoked.

Section 1 Transport Act 1962

The Transport Act 1962 is amended as follows.

Section 2 Transport Act 1962

(1) Section 1 (the four Boards) is amended as follows.

(2) In subsection (2)—

(a) for “each Board”, where first occurring, substitute “the Docks Board”;

(b) omit “of each Board”, where second occurring.

(3) For subsection (2A) substitute—

(2A) The chairman of the British Waterways Board shall be appointed by the Scottish Ministers and the other members (including any vice chairman) shall be appointed by the Scottish Ministers after consultation with the chairman.

(4) In subsection (6)—

(a) for “not more than nine nor less than four” substitute “between one and four”;

(b) omit “the Minister or, as the case may be,”;

(c) omit “him or”.

(5) Omit subsection (6A).

(6) Until the coming into force of the repeal (by the Transport Act 2000 ) of the words “the British Railways Board (in this Act referred to as the “Railways Board”)” in subsection (1) of section 1 of the Transport Act 1962 the amendment of subsection (2) of that section made by sub-paragraph (2)(a) is to have effect as if the reference to “the Docks Board” were a reference to “the Railways Board and of the Docks Board”.

Section 3 Transport Act 1962

In section 10(3) (duty and powers of the British Waterways Board)—

(a) omit paragraph (dd);

(b) in paragraph (g)(i), for “Great Britain” substitute “Scotland”.

Section 4 Transport Act 1962

In section 11 (development of land), for subsection (5) substitute—

(5) In the application of this section to the British Waterways Board —

(a) the references to the Minister are to be read as references to the Scottish Ministers;

(b) the power in subsection (4) is limited to the acquisition of adjoining land in Scotland.

Section 5 Transport Act 1962

For section 12(3A) (pipe-lines), substitute—

(3A) In the application of this section to the British Waterways Board—

(a) references to Great Britain are to be read as references to Scotland,

(b) references to the Minister are to be read as references to the Scottish Ministers, and

(c) the power in subsection (2) is limited to the acquisition of land in Scotland.

Section 6 Transport Act 1962

(1) Section 14 (supplemental provision relating to the Boards’ powers) is amended as follows.

(2) After subsection (1), insert—

(1A) In the application of this section to the British Waterways Board, the power in subsection (1)(c) is limited to land in Scotland.

(3) In subsection (4B)—

(a) after “shall have the power” insert “with the consent of the Scottish Ministers, and for the purposes of the Board’s business,”,

(b) omit paragraphs (a) and (b).

(4) In subsection (4C)—

(a) after “shall have the power” insert “with the consent of the Scottish Ministers, and for the purposes of the Board’s business,”,

(b) omit paragraphs (a) and (b).

(5) Omit subsection (4D).

Section 7 Transport Act 1962

After subsection (2) of section 15 (compulsory purchase of land), insert—

(2A) The Minister may authorise Canal & River Trust to purchase compulsorily any land in England or Wales which it requires for the purposes of any of its functions under an enactment and the Acquisition of Land Act 1981 shall apply as if Canal & River Trust were a local authority within the meaning of that Act.

Section 8 Transport Act 1962

(1) Section 15A (compulsory purchase of land: British Waterways Board in Scotland) is amended as follows.

(2) In the heading, omit “in Scotland”.

(3) In subsection (1), omit “in Scotland”.

(4) In subsection (4), for “section 12(3A)(b)” substitute “section 12(3)”.

Section 9 Transport Act 1962

After subsection (1) of section 17 (power to promote and oppose Bills), insert—

(1ZA) In the application of subsection (1) to the British Waterways Board, the reference to the Minister is to be read as a reference to the Scottish Ministers.

Section 10 Transport Act 1962

After subsection (5) of section 18 (financial duty of Boards), insert—

(5A) In the application of subsections (4) and (5) to the British Waterways Board—

(a) references to the Minister are to be read as references to the Scottish Ministers, and

(b) references to the approval of the Treasury are omitted.

Section 11 Transport Act 1962

(1) Section 19 (borrowing powers of Boards) is amended as follows.

(2) For subsection (3), substitute—

(3) In any financial year the net amount of sums borrowed by the British Waterways Board under this section for discharging their functions under this Act or for meeting their obligations in connection with the discharge of their functions shall not exceed the amount specified for that year for the purposes of this subsection in a Budget Act.

(3) For subsection (3A), substitute—

(3A) In subsection (3)—

(a) “net amount” means the amount of sums borrowed in the financial year less any repayments made during that year (otherwise than by way of interest) in respect of sums borrowed in that year or any other year, and

(b) “Budget Act” has the same meaning as in the Public Finance and Accountability (Scotland) Act 2000 .

(4) In subsection (7)—

(a) omit “in connection with the exercise of their functions in Scotland”;

(b) in paragraph (b) after “the Minister” insert “and the Secretary of State”;

(c) omit paragraph (c).

Section 12 Transport Act 1962

In section 20(7) (Exchequer loans), omit “in connection with the exercise of their functions in Scotland”.

Section 13 Transport Act 1962

In section 21(1) (Treasury guarantees), after “a Board” insert “other than the British Waterways Board”.

Section 14 Transport Act 1962

In section 21A(1) (British Waterways Board: guarantees by the Scottish Ministers), omit “, in connection with the exercise of their functions in Scotland,”.

Section 15 Transport Act 1962

(1) Section 24 (accounts) is amended as follows.

(2) In subsection (1)—

(a) after “Each Board” insert “, other than the British Waterways Board,”,

(b) omit the words from “and, in the case of” to the end.

(3) In subsection (2)—

(a) after “each Board”, insert “, other than the British Waterways Board,”,

(b) omit the words “after, in the case of the British Waterways Board, consultation with the Scottish Ministers”.

(4) In subsection (3), omit “and, in the case of the British Waterways Board, to the Scottish Ministers” and “and in the report which is, under this Act, to be laid by the Scottish Ministers annually before the Scottish Parliament”.

(5) After subsection (3), insert—

(3A) The British Waterways Board—

(a) must cause proper accounts and other records in relation to those accounts to be kept, and

(b) must prepare an annual statement of accounts in such form and containing such particulars, compiled in such manner, as the Scottish Ministers may from time to time direct.

(3B) The British Waterways Board must send the statement of accounts to the Auditor General for Scotland for auditing.

(3C) As soon as the accounts have been audited under subsection (3B), the British Waterways Board must send to the Scottish Ministers a copy of the statement of accounts together with a copy of the report made by the Auditor General for Scotland on that statement.

(3D) A copy of the statement of accounts and the report referred to in subsection (3C) must be included in the report which is under this Act to be laid by the Scottish Ministers annually before the Scottish Parliament.

Section 16 Transport Act 1962

For section 25(2A) (the Board’s subsidiaries), substitute—

(2A) In the application of this section to the British Waterways Board, references to the Minister are to be read as references to the Scottish Ministers.

Section 17 Transport Act 1962

(1) Section 27 (power of Ministers in relation to Boards) is amended as follows.

(2) After subsection (5), insert—

(5A) In the application of subsections (1) to (5) to the British Waterways Board, references to the Minister are to be read as references to the Scottish Ministers.

(3) In subsection (6), after “Board”, in each place occurring, insert “or Canal & River Trust”.

(4) In subsection (7), for the words from “Each Board” to “shall” substitute “The Docks Board shall”.

(5) In subsection (8), for the words from “each Board” to “shall” substitute “the Docks Board shall”.

(6) Omit subsection (8A).

(7) In subsection (8B), omit “in or as regards Scotland” in both places occurring.

(8) In subsection (8C), omit “in Scotland”.

Section 18 Transport Act 1962

In section 28(2), (3) and (4) (powers exercisable subject to Minister’s consent), after “Board”, in each place occurring, insert “or Canal & River Trust”.

Section 19 Transport Act 1962

(1) Section 43 (charges and facilities: general provisions) is amended as follows.

(2) In subsections (1) and (2), after “British Waterways Board”, in each place occurring, insert “or Canal & River Trust”.

(3) In subsection (3)—

(a) after “British Waterways Board”, insert “and Canal & River Trust”,

(b) after “shall”, insert “each”.

(4) In subsection (4), after “British Waterways Board”, insert “and Canal & River Trust”.

(5) In subsection (5), after “the Boards”, insert “or Canal & River Trust”.

(6) In subsections (6) and (8), after “British Waterways Board”, in each place occurring, insert “and Canal & River Trust”.

Section 20 Transport Act 1962

(1) Section 50 (port charges and conditions at harbours) is amended as follows.

(2) In subsection (1), after “the Boards” insert “and Canal & River Trust”.

(3) In subsection (2), after “the Boards”, in each place occurring, insert “or Canal & River Trust”.

Section 21 Transport Act 1962

In section 52(4) (independent railway companies and inland waterway undertakings), in the definition of “independent inland waterway undertaking”, after “of the Boards”, insert “or Canal & River Trust”.

Section 22 Transport Act 1962

(1) Section 62 (local enactments relating to the supply of water for canals) is amended as follows.

(2) In subsection (1)—

(a) after “the British Waterways Board”, where first occurring, insert “or Canal & River Trust”;

(b) after “the British Waterways Board”, in each other place occurring, insert “or, as the case may be, Canal & River Trust”.

(3) In subsection (2)—

(a) after “the British Waterways Board”, insert “or, as the case may be, Canal & River Trust”;

(b) after “the Board’s obligations”, insert “or, as the case may be, Canal & River Trust’s obligations”.

Section 23 Transport Act 1962

Section 63 (abstraction of water by British Waterways Board), to the extent that it continues in force, is repealed.

Section 24 Transport Act 1962

In section 73 (the powers of the Boards and the Holding Company as regards pensions and pension schemes), after subsection (2) insert—

(3) In the application of this section to the British Waterways Board, the reference to the Minister is to be read as a reference to the Scottish Ministers.

Section 25 Transport Act 1962

In section 74 (Minister’s power to make orders about pensions), before subsection (1) insert—

(A1) In this section, references to the Boards do not include the British Waterways Board.

Section 26 Transport Act 1962

In section 86(4) and (5) (application of Town and Country Planning Acts), omit “in respect of any development in Scotland” in each place occurring.

Section 27 Transport Act 1962

(1) Schedule 1 (the Boards and the holding company) is amended as follows.

(2) In paragraph 6—

(a) in sub-paragraph (2), for “Any member appointed by the Minister” substitute “A member of any Board other than the British Waterways Board”;

(b) for sub-paragraph (3) substitute—

(3) Any member of the British Waterways Board may at any time by notice in writing to the Scottish Ministers resign that member’s office.

(3) In paragraph 7(1A), omit “made by the Scottish Ministers”.

(4) In paragraph 8(1A), omit “appointed by the Scottish Ministers”.

Section 28 Transport Act 1962

(1) Schedule 6 (distribution of Commission’s undertaking) is amended as follows.

(2) In paragraph 1(1)—

(a) after “duty of the Boards”, insert “and Canal & River Trust”;

(b) in paragraph (a) after “the other Boards”, insert “or, as the case may be, Canal & River Trust”;

(c) after paragraph (a), insert—

(aa) afford to Canal & River Trust as against the Boards such rights and safeguards as they may require for the proper discharge of their functions, and

(d) in paragraph (b) after “functions of the Boards”, insert “or, as the case may be, Canal & River Trust”.

(3) In paragraph 4(1)—

(a) in paragraph (b) after “the Boards’ functions”, insert “or Canal & River Trust’s functions”,

(b) after “Board or Boards”, insert “or, as the case may be, Canal & River Trust”.

(4) In paragraph 4(2), after “between the Boards”, insert “, or between a Board and Canal & River Trust,”.

Section 29 Transport Act 1962

In Schedule 9 (port charges), in paragraph 5(1), after “the Boards”, insert “or Canal & River Trust”.

Section 30 Transport Act 1968

The Transport Act 1968 is amended as follows.

Section 31 Transport Act 1968

(1) Section 43 (additional financial provisions as to Waterways Board) is amended as follows.

(2) Omit subsections (2) and (5).

(3) In subsection (6), for “Where an excess under subsection (5) of this section arises in relation to the activities of the Board in Scotland,” substitute “If in any accounting year of the Board there is an excess of the revenue of the Board over the total sums properly chargeable by them to revenue,”.

Section 32 Transport Act 1968

After section 43, insert—

Grants to Canal & River Trust

(43A) The Minister or any other Minister of the Crown may, with the approval of the Treasury, from time to time make grants to Canal & River Trust.

Section 33 Transport Act 1968

In section 44(1)(b) (account by Minister of receipt and disposal of certain sums), omit “or the Waterways Board” and “or 43(5)”.

Section 34 Transport Act 1968

In section 46(2)(a) (duty of Boards and new authorities to promote research and development), omit “in respect of their functions in Scotland,”.

Section 35 Transport Act 1968

In section 48(1A) (manufacture, repair and supply)—

(a) omit “in connection with any activity in Scotland”;

(b) after “in subsection (6)”, insert “the reference to section 27(8) shall be construed as a reference to section 27(8C) and”.

Section 36 Transport Act 1968

In section 49 (powers with respect to land), for subsection (4A) substitute—

(4A) In the application of this section to the Waterways Board —

(a) the references to the Minister are to be read as references to the Scottish Ministers;

(b) the powers in subsections (3) and (4) are limited to the acquisition of adjoining land in Scotland.

Section 37 Transport Act 1968

(1) Section 50 (miscellaneous provisions as to powers) is amended as follows.

(2) In subsection (1)—

(a) omit “the Minister or, in the case of the Waterways Board, in connection with the exercise of their functions in Scotland,”;

(b) after “other premises” insert “in Scotland”.

(3) In subsection (5), omit “the Minister or, in the case of the Waterways Board, in connection with the exercise of their functions in Scotland,”.

(4) Omit subsection (8A).

(5) In subsection (9), omit “in connection with the exercise of their functions in Scotland,”.

(6) Until the coming into force of the repeals of words in section 50(1) of the Transport Act 1968 made by the Transport Act 2000—

(a) sub-paragraph (2)(a) is to have effect as if it omitted “in connection with the exercise of their functions in Scotland,”;

(b) sub-paragraph (2)(b) is to have effect as if it inserted “(in the case of the Waterways Board, in Scotland)”.

Section 38 Transport Act 1968

(1) Section 104 (classification of the Board’s waterways) is amended as follows.

(2) In the heading, omit “the Board’s”.

(3) In subsection (1)—

(a) for “undertaking” substitute “undertakings”,

(b) after “Board” insert “and Canal & River Trust”.

(4) In subsection (3), after “Board” insert “or Canal & River Trust”.

(5) After subsection (3) insert—

(3A) Canal & River Trust may apply to the Minister for the making of an order under subsection (3).

(3B) In deciding whether to make an order under subsection (3), the Minister must have regard to the financial position of Canal & River Trust.

Section 39 Transport Act 1968

(1) Section 105 (maintenance of the Board’s waterways) is amended as follows.

(2) In the heading, omit “the Board’s”.

(3) In subsection (1), after “Board” insert “and of Canal & River Trust, in relation to the waterways comprised in their respective undertakings”.

(4) In subsection (2), after “the Board” insert “or Canal & River Trust”.

(5) In subsection (3)—

(a) after “or any part thereof,”, insert “or to any other reason the Minister considers relevant to the duty under subsection (1),”;

(b) for “the Board”, in each place occurring, substitute “Canal & River Trust”.

(6) After subsection (3) insert—

(3ZA) Canal & River Trust may apply to the Minister for the making of an order under subsection (3).

(3ZB) In deciding whether to make any order under subsection (3), the Minister must have regard to the financial position of Canal & River Trust.

(7) For subsection (3A), substitute—

(3A) If it appears to the Scottish Ministers that, having regard to any change in the size, design or type of vessel customarily using any commercial waterway or cruising waterway, or any part of such waterway, it is desirable to exercise their powers under this subsection, they may (after consultation with the Board) by order substitute for the duty imposed on the Board by subsection (1) in respect of that waterway (or part) such duty in respect of the maintenance of such waterway (or part) as they consider appropriate having regard to that change, and may by that order make such incidental or transitional provision as they think necessary or expedient in connection therewith.

(8) In subsection (4)—

(a) after “(3)” insert “or (3A)”;

(b) after “such order” insert “made by the Minister under subsection (3)”;

(c) after “Parliament” insert “, and an order made by the Scottish Ministers under subsection (3A) is subject to the negative procedure”.

(9) In subsection (6), after “the Board” insert “or Canal & River Trust”.

(10) In subsections (7) and (8), after “Board”, in each place occurring, insert “or, as the case may be, Canal & River Trust”.

Section 40 Transport Act 1968

For section 106 (enforcement of maintenance duty), substitute—

Enforcement of maintenance duty – the Waterways Board

(106)

(1) If, on an application by any person under this section to the Court of Session, the court determines that there has been, in respect of any waterway, a serious and persistent failure by the Waterways Board to discharge the duty imposed on them by—

(a) section 105(1), or

(b) an order made under section 105(3A),

the court may, subject to the provisions of this section, require the Board to remedy that failure; but, save as aforesaid, neither subsection (1) of section 105 nor any order under subsection (3A) of that section shall be construed as imposing any duty or liability enforceable by proceedings before any court to which the Board would not otherwise be subject.

(2) The fact that proceedings on an application under subsection (1) (referred to in this section as “enforcement proceedings”) are in progress in respect of any waterway or any part of a waterway, or that the court has in any such proceedings imposed any requirement on the Board, shall not prevent the Scottish Ministers from making an order in respect of that waterway or part under section 104(3) or 105(3A); but—

(a) except as provided in subsection (3) of this section, where such an order is made while enforcement proceedings are in progress, the court shall nevertheless determine those proceedings on the basis of the duty of the Board as it stood when the proceedings were instituted; and

(b) the making of such an order shall in no case absolve the Board from complying with any requirement which is imposed by the court in any enforcement proceedings.

(3) If a relevant order is pending at the time when enforcement proceedings are instituted, or if, at any time after enforcement proceedings have been instituted and before the court has imposed any requirement on the Board in the proceedings, the Scottish Ministers notify the Board that they are considering the making of a relevant order and give the court such a certificate as is mentioned in subsection (4)—

(a) the court shall not, so long as the order is pending, impose any requirement on the Board in those proceedings; and

(b) if the order is made, the court shall, in determining in those proceedings whether there has been a failure by the Board to discharge their duty, have regard only to the duty (if any) to which the Board are subject in consequence of the making of the order.

(4) The certificate referred to in subsection (3) is a certificate in writing to the effect that it appears to the Scottish Ministers that the imposition of any requirement on the Board on the basis of their existing duty would result in their incurring substantial expense and that, having regard to their financial position and their duty under section 18 of the Act of 1962 and section 41 of this Act, it would be unreasonable for them to bear that expense without a grant or further grant under section 43 of this Act.

(5) In subsection (3) “relevant order” means, in relation to any enforcement proceedings, an order under section 104(3) or 105(3A) of this Act in relation to the waterway or part of a waterway which is the subject of the proceedings; and for the purposes of that subsection an order is pending during the period of three months beginning with the day on which the Scottish Ministers notify the Board that they are considering the making of the order and, if before the expiration of that period notice of the proposed order is published under Schedule 13 to this Act, during any further period until the order is made or the Scottish Ministers notify the Board that it will not be made.

(6) As soon as may be after giving the Board any such notification as is mentioned in subsection (5), the Scottish Ministers shall give notice of that notification in the Edinburgh Gazette.

(7) For the purposes of this section enforcement proceedings shall be treated as instituted at the time when the summons beginning the proceedings is served on the Board.

Enforcement of maintenance duty – Canal & River Trust

(106A)

(1) If, on an application by any person under this section to the High Court, the court determines that there has been, in respect of any waterway, a serious and persistent failure by Canal & River Trust to discharge the duty imposed on it by—

(a) section 105(1), or

(b) an order made under section 105(3),

the court may, subject to the provisions of this section, require Canal & River Trust to remedy that failure; but, save as aforesaid, neither subsection (1) of section 105 nor any order under subsection (3) of that section shall be construed as imposing any duty or liability enforceable by proceedings before any court to which Canal & River Trust would not otherwise be subject.

(2) The fact that proceedings on an application under subsection (1) (referred to in this section as “enforcement proceedings”) are in progress in respect of any waterway or any part of a waterway, or that the court has in any such proceedings imposed any requirement on Canal & River Trust, shall not prevent the Minister from making an order in respect of that waterway or part under section 104(3) or 105(3); but—

(a) except as provided in subsection (3) of this section, where such an order is made while enforcement proceedings are in progress, the court shall nevertheless determine those proceedings on the basis of the duty of Canal & River Trust as it stood when the proceedings were instituted; and

(b) the making of such an order shall in no case absolve Canal & River Trust from complying with any requirement which is imposed by the court in any enforcement proceedings.

(3) If a relevant order is pending at the time when enforcement proceedings are instituted, or if, at any time after enforcement proceedings have been instituted and before the court has imposed any requirement on Canal & River Trust in the proceedings, the Minister notifies Canal & River Trust that the Minister is considering the making of a relevant order and gives the court such a certificate as is mentioned in subsection (4)—

(a) the court shall not, so long as the order is pending, impose any requirement on Canal & River Trust in those proceedings; and

(b) if the order is made, the court shall, in determining in those proceedings whether there has been a failure by Canal & River Trust to discharge its duty, have regard only to the duty (if any) to which Canal & River Trust is subject in consequence of the making of the order.

(4) The certificate referred to in subsection (3) is a certificate in writing to the effect that it appears to the Minister that the imposition of any requirement on Canal & River Trust on the basis of its existing duty would result in its incurring substantial expense and that, having regard to its financial position, it would be unreasonable for it to bear that expense without a grant or further grant under section 43A of this Act.

(5) In subsection (3) “relevant order” means, in relation to any enforcement proceedings, an order under section 104(3) or 105(3) of this Act in relation to the waterway or part of a waterway which is the subject of the proceedings; and for the purposes of that subsection an order is pending during the period of three months beginning with the day on which the Minister notifies Canal & River Trust that the Minister is considering the making of the order and, if before the expiration of that period notice of the proposed order is published under Schedule 13 to this Act, during any further period until the order is made or the Minister notifies Canal & River Trust that it will not be made.

(6) As soon as may be after giving Canal & River Trust any such notification as is mentioned in subsection (5), the Minister shall give notice of the notification in the London Gazette.

(7) For the purposes of this section enforcement proceedings shall be treated as instituted at the time when the claim form beginning the proceedings is served on Canal & River Trust.

Section 41 Transport Act 1968

In section 108(1) (prevention of nuisance as respects certain waterways), for “the Waterways Board” substitute “Canal & River Trust”.

Section 42 Transport Act 1968

(1) Section 109 (power of certain bodies to maintain or take over waterways and connected works) is amended as follows.

(2) In the heading, after “connected works” insert “in Scotland”.

(3) In subsection (2)—

(a) omit paragraph (b) so far as having effect in relation to England and Wales;

(b) omit paragraphs (c) and (h);

(c) omit paragraph (j) so far as having effect in relation to England and Wales;

(d) omit paragraph (k);

(e) for the words from “the Minister” to “as the case may be,” substitute “the Scottish Ministers as a body appearing to”.

(4) In subsection (3)—

(a) for the words from paragraph (b) to the end of the subsection substitute—

(b) Scottish Water unless the Scottish Ministers have consented to the agreement or transfer;

and the powers under this section of Scottish Water shall be exercisable only for the purposes of their water undertaking and with the consent of the Scottish Ministers.

(5) For subsection (5) substitute—

(5) The Board may make an agreement for maintenance or transfer under this section with two or more bodies jointly on such terms as to the sharing of expenses between those bodies and otherwise as those bodies may agree; and, notwithstanding subsection (3)(a)(i) of this section (but without prejudice to subsection (3)(a)(ii) of this section), a local authority may be a party to such an agreement if part of what is to be maintained or transferred is situated in their area and the remainder in the area or areas of one or more other authorities (whether or not local authorities) who are also parties to the agreement.

Section 43 Transport Act 1968

In section 111 (access agreements and orders as respects canals other than commercial waterways and cruising waterways), for “the Waterways Board” substitute “Canal & River Trust”.