23Routine works access to adjoining land – without permission

23 Routine works access to adjoining land – without permission

(1)  This section applies if –

(a) a railway entity needs access to adjoining land to carry out routine railway works but the adjoining landholder –

(i) cannot, despite the railway entity's best endeavours, be contacted; or

(ii) is, for any reason, incapable of permitting the access; or

(iii) has, despite the railway entity's reasonable entreaties, unreasonably refused to permit the access; or

(iv) has imposed such stringent conditions on the access that the routine railway works would be unreasonably expensive, time-consuming or difficult to carry out or could not be carried out safely, properly or at all; or

(b) a railway entity is unable to complete routine railway works because an adjoining landholder has unreasonably withdrawn permission for the railway entity to access adjoining land.

(2)  The railway entity –

(a) may apply to a justice for a warrant to access the land for the purposes of carrying out or, as the case may be, completing the routine railway works; but

(b) must give the adjoining landholder at least 5 clear days' notice of its intention to make the application or, if subsection (1)(a)(i) applies, make a reasonable attempt to give such notice.

(3)  The justice may issue the warrant if satisfied on reasonable grounds that –

(a) the routine railway works are necessary for the safety or operability of the rail network; and

(b) there is no feasible, safe or cost-effective way of carrying out or, as the case may be, completing the routine railway works except by accessing the adjoining land; and

(c) the railway entity will exercise the right of access responsibly; and

(d) the railway entity has complied with subsection (2)(b) .

(4)  The warrant may –