Office of Public Sector Information
PART IV continued
(1) Where an undertaker’s apparatus in a road is affected by major works for roads purposes, major bridge works or major transport works, the allowable costs of the measures needing to be taken in relation to the apparatus in consequence of the works, or in order to facilitate their execution, shall be borne by the roads, bridge or transport authority concerned and the undertaker in such manner as may be prescribed.
(2) The regulations may make provision as to the costs allowable for this purpose.
Provision may, in particular, be made for disallowing costs of the undertaker—
(a) where the apparatus in question was placed in the road after the authority had given the undertaker the prescribed notice of their intention to execute the works, or
(b) in respect of measures taken to remedy matters for which the authority were not to blame,
and for allowing only such costs of either party as are not recoverable from a third party.
(3) Where the authority have a right to recover from a third party their costs in taking measures in relation to undertaker’s apparatus but in accordance with section 143 it is determined that the measures should be taken by the undertaker, the right of the authority includes a right to recover the undertaker’s costs in taking those measures and they shall account to the undertaker for any sum received.
(4) The regulations shall provide for the allowable costs to be borne by the authority and the undertaker in such proportions as may be prescribed.
Different proportions may be prescribed for different cases or classes of case.
(5) The regulations may require the undertaker to give credit for any financial benefit to him from the betterment or deferment of renewal of the apparatus resulting from the measures taken.
(6) The regulations may make provision as to the time and manner of making any payment required under this section.
(1) In this Part—
“roads authority” and “local roads authority” have the same meaning as in section 151 of the [1984 c. 54.] Roads (Scotland) Act 1984; and
“public road” means a road which a roads authority have a duty to maintain.
(2) In this Part “works for road purposes” means—
(a) works for the maintenance of a road,
(b) works for any purpose falling within the definition of “improvement” in section 151 of that Act,
(c) the erection, maintenance, alteration or removal of traffic signs, or
(d) the construction of a crossing for vehicles across a footway or the strengthening or adaptation of a footway for use as a crossing for vehicles.
(3) In this Part “major works for roads purposes” means works of any of the following descriptions executed by the roads authority in relation to a road which consists of or includes a carriageway—
(a) reconstruction or widening of the road,
(b) substantial alteration of the level of the road,
(c) provision, alteration of the position or width, or substantial alteration in the level of a carriageway, footpath or cycle track in the road,
(d) the construction or removal of a road hump within the meaning of section 40 of the [1984 c. 54.] Roads (Scotland) Act 1984,
(e) works carried out in exercise of the powers conferred by section 63 of the Roads (Scotland) Act 1984 (new access over verges and footways),
(f) provision of a cattle-grid in the road or works ancillary thereto, or
(g) tunnelling or boring under the road.
(1) Subject to subsection (2), where a local roads authority are satisfied that a road in their area which is not a public road is likely to become a public road, they may make a declaration to that effect.
(2) Subsection (1) does not apply to a road which is under the management or control of a transport authority.
(3) The provisions of this Part apply to a road in respect of which such a declaration has been made as they apply to a public road.
(4) In relation to road works in such a road, the road works authority—
(a) shall secure the performance by undertakers of their duties under this Part, and shall exercise their powers under this Part, in such manner as is reasonably required for the protection of the road managers; and
(b) shall comply with any reasonable request as to securing performance of those duties, or as to the exercise of those powers, which may be made by the road managers.
(1) In this Part—
(a) references to a bridge include so much of any road as gives access to the bridge and any embankment, retaining wall or other work or substance supporting or protecting that part of the road; and
(b) “bridge authority” means the authority, body or person in whom a bridge is vested.
(2) In this Part “major bridge works” means works for the replacement, reconstruction or substantial alteration of a bridge.
(3) Where a road is carried or crossed by a bridge, any statutory right to place apparatus in the road includes the right to place apparatus in, and attach apparatus to, the structure of the bridge; and other rights to execute works in relation to the apparatus extend accordingly.
References in this Part to apparatus in the road include apparatus so placed or attached.
(4) An undertaker proposing to execute road works affecting the structure of a bridge shall consult the bridge authority before giving notice under section 114 (notice of starting date) in relation to the works.
(5) An undertaker executing such works shall take all reasonably practicable steps—
(a) to give the bridge authority reasonable facilities for monitoring the execution of the works, and
(b) to comply with any requirement made by them which is reasonably necesssary for the protection of the bridge or for securing access to it.
(6) An undertaker who fails to comply with any requirement of subsection (4) or (5) commits an offence in respect of each failure and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(7) Subsections (4) to (6) do not apply to works in relation to which Schedule 6 applies (works in roads with special engineering difficulties).
(1) An undertaker proposing to execute road works affecting a sewer vested in a local authority shall consult that authority before giving notice under section 114 (notice of starting date) in relation to the works.
(2) References in this Part to apparatus include a sewer, drain or tunnel.
(3) References to the undertaker in relation to such apparatus, or in relation to road works in connection with such apparatus, shall be construed—
(a) in the case of a sewer vested in a local authority, as references to that authority, and
(b) in any other case, as references to the authority, body or person having the management or control of the sewer, drain or tunnel.
(4) Section 128 (provisions as to works likely to affect other apparatus in the road) does not apply by virtue of subsection (2) above in relation to works likely to affect a sewer vested in a local authority if, or to the extent that, Schedule 6 (works in roads with special engineering difficulties) applies.
(1) The duties of an undertaker under this Part with respect to reinstatement of the road extend, in the case of road works which involve breaking up or opening a sewer, drain or tunnel under the road, to the reinstatement of the sewer, drain or tunnel.
(2) The responsible authority may by notice require an undertaker who has failed to comply with his duties under this Part with respect to reinstatement to carry out the necessary remedial works within such period of not less than 7 working days as may be specified in the notice.
If he fails to comply with the notice, the authority may carry out the necessary works and recover from him the costs reasonably incurred by them in doing so.
(3) If it appears to the responsible authority that a failure by an undertaker to comply with his duties under this Part as to reinstatement is causing danger to users of the road, the authority may carry out the necessary works without first giving notice and may recover from him the costs reasonably incurred by them in doing so.
They shall, however, give notice to him as soon as reasonably practicable stating their reasons for taking immediate action.
(4) The responsible authority for the purposes of this section is—
(a) in the case of a sewer vested in a local authority, that authority, and
(b) in the case of any other sewer, drain or tunnel, the authority, body or person having the management or control of it.
(1) In this Part—
(a) “transport authority” means the authority, body or person having the control or management of a transport undertaking; and
(b) “transport undertaking” means a railway, tramway, dock, harbour, pier, canal or inland navigation undertaking of which the activities, or some of the activities, are carried on under statutory authority.
(2) In this Part “major transport works” means substantial works required for the purposes of a transport undertaking and executed in property held or used for the purposes of the undertaking.
(3) References in this Part to a road which crosses or is crossed by property held or used for the purposes of a transport undertaking extend to cases in which the road and the property in question are at different levels.
But the transport authority shall not be treated as a relevant authority as regards undertakers' works in such a road where the property in question consists only of—
(a) subsoil of the road which is held by the transport authority but is not used, and has not been adapted for use, for the purposes of the undertaking, or
(b) property underground at such a depth that there is no reasonable possibility of the works affecting it.
(4) The provisions of this Part relating to a road which crosses or is crossed by property held or used for the purposes of a transport undertaking apply to a road which is or forms part of a towing-path or other way running along a canal or inland navigation, provided the path or way is held or used, or the subsoil of it is held, for the purposes of the canal or inland navigation undertaking.
(1) An undertaker executing road works in a road which crosses, or is crossed by, or is in the vicinity of, a railway, tramway, dock, harbour, pier, canal or inland navigation, shall comply with any reasonable requirements imposed by the transport authority concerned with respect to the displaying of lights so as to avoid any risk of their—
(a) being mistaken for any signal light or other light used for controlling, directing or securing the safety of traffic thereon, or
(b) being a hindrance to the ready interpretation of any such signal or other light.
(2) An undertaker who fails to comply with any such requirement commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) In proceedings for such an offence it is a defence for the undertaker to show that all reasonable care was taken by him, and by his contractors and by persons in his employ or that of his contractors, to secure that no such failure occurred.
(1) This section applies to road works at a crossing of a railway on the level or which affect a tramway.
In this section “the relevant transport authority” means the authority having the management of the railway or tramway undertaking concerned.
(2) An undertaker proposing to begin to execute works to which this section applies shall give the prescribed notice to the relevant transport authority notwithstanding that such notice is not required under section 114 (notice of starting date).
The provisions of subsections (2) to (7) of that section (contents of notice, when works may be begun, &c.) apply in relation to the notice required by this subsection as in relation to a notice under subsection (1) of that section.
(3) An undertaker executing works to which this section applies shall comply with any reasonable requirements made by the relevant transport authority—
(a) for securing the safety of persons employed in connection with the works, or
(b) for securing that interference with traffic on the railway or tramway caused by the execution of the works is reduced so far as is practicable;
and, except where submission of a plan and section is required, he shall defer beginning the works for such further period as the relevant transport authority may reasonably request as needed for formulating their requirements under this subsection or making their traffic arrangements.
(4) Nothing in subsection (2) or (3) affects the right of an undertaker to execute emergency works.
(5) An undertaker executing emergency works shall give notice to the relevant transport authority as soon as reasonably practicable of his intention or, as the case may be, of his having begun to do so notwithstanding that such notice is not required by section 116 (notice of emergency works).
The provisions of subsections (3) and (4) of that section (contents of notice and penalty for failure to give notice) apply in relation to the notice required by this subsection as in relation to a notice under subsection (2) of that section.
(1) A road works authority or district council may enter into an agreement with an undertaker for the execution by the authority or council on behalf of the undertaker of any road works.
(2) The agreement may contain such terms as to payment and otherwise as the parties consider appropriate.
(3) Nothing in this section shall be construed as derogating from any powers exercisable by the authority or council apart from this section.
(4) This section shall cease to have effect upon such day as the Secretary of State may appoint by order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Any provision of this Part imposing criminal liability in respect of any matter is without prejudice to any civil liability in respect of the same matter.
(2) Where a failure to comply with a duty imposed by this Part is continued after conviction, the person in default commits a further offence.
(1) Any provision of this Part enabling an authority, body or person to recover the costs or expenses of taking any action shall be taken to include the relevant administrative expenses of that authority, body or person including an appropriate sum in respect of general staff costs and overheads.
The Secretary of State may prescribe the basis on which such amounts are to be calculated; and different provision may be made for different cases or descriptions of case.
(2) Where a right to payment enuring for the benefit of a person is conferred in respect of the same matter—
(a) both under this Part and under any enactment or agreement passed or made before the commencement of this Part, or
(b) by two or more provisions of this Part,
a payment made in discharge of any of those rights shall be treated as being made in or towards satisfaction of the other or others.
(3) Where under any provision of this Part a person is entitled in certain circumstances to recover costs or expenses incurred by him in executing works or taking other steps, any dispute as to the existence of those circumstances or as to the amount recoverable shall be determined by arbitration.
This applies whether the provision is expressed as conferring a right to recover, or as imposing a liability to reimburse or indemnify or to bear the cost, but does not apply in relation to a provision expressed as providing for the charging of a fee or conferring a right to compensation or in relation to section 137 (contribution to the cost of making good long-term damage to the road).
(1) Notices required or authorised to be given for the purposes of this Part shall be given in the prescribed form.
(2) The Secretary of State may make provision by regulations as to the manner of service of notices and other documents required or authorised to be served for the purposes of this Part.
(1) In reckoning for the purposes of this Part a period expressed as a period from or before a given date, that date shall be excluded.
(2) For the purposes of this Part a working day means a day other than a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday; and a notice given after 4.30 p.m. on a working day shall be treated as given on the next working day.
(3) In subsection (2) a “bank holiday” means a day which is a bank holiday under the [1971 c. 80.] Banking and Financial Dealings Act 1971 in the locality in which the road in question is situated.
(1) Any matter which under this Part is to be settled by arbitration shall be referred for determination by a single arbiter appointed by agreement between the parties concerned or, in default of agreement, by the sheriff.
(2) In any arbitration in accordance with subsection (1) the arbiter may, and if so directed by the Court of Session shall, state a case for the decision of the Court on any question of law arising in the arbitration; and the decision of the Court shall be final unless the Court or the House of Lords give leave to appeal to the House of Lords against the decision.
(3) Leave under subsection (2) may be given on such terms as to expenses or otherwise as the Court or the House of Lords may determine.
(1) An agreement which purports to make provision regulating the execution of road works is of no effect to the extent that it is inconsistent with the provisions of this Part.
(2) This does not affect an agreement for the waiver or variation of a right conferred on a relevant authority by any of the provisions of this Part which is made after the right has accrued and is not inconsistent with the future operation of those provisions.
(1) Any special enactment passed or made before the commencement of this Part which makes or authorises the making of provision regulating the execution of road works in a manner inconsistent with the provisions of this Part shall cease to have effect; and unless a contrary intention appears no enactment passed or made after the commencement of this Part shall be construed as making or authorising the making of any such provision.
This subsection does not apply to any provision as to the obtaining of consent for the execution of the works or for any other purpose.
(2) Any special enactment passed or made before the commencement of this Part which requires the consent of a relevant authority (in its capacity as such) to the execution of road works shall cease to have effect, except as mentioned below; and unless a contrary intention appears no special enactment passed or made after the commencement of this Part shall be construed as requiring such consent.
This subsection does not apply to a consent requirement so far as it relates to—
(a) works above the surface level of the road, or
(b) works outside the limits of supply of an undertaker in relation to whom such limits are imposed.
(3) A provision made by way of condition imposed on the giving of a consent for the execution of road works is of no effect in so far as it would have been so by virtue of section 159 if it had been made by an agreement.
(4) If it appears to the Secretary of State—
(a) that by the operation of subsection (1) a person has been or will be deprived of some protection afforded by a special enactment and that corresponding protection is in all the circumstances required, or
(b) that a requirement of consent imposed by a special enactment should be saved from the operation of subsection (2), either as regards all works to which the requirement extends or as regards any description of such works, or
(c) that conditions of any descriptions should be rendered valid notwithstanding subsection (3), or
(d) that uncertainty or obscurity has resulted or is likely to result from the operation on a special enactment of the general provisions of subsection (1), (2) or (3),
he may by order make such provision as he considers appropriate for affording such protection, saving the requirement, rendering the conditions valid or modifying the special enactment, as the case may be.
(5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament; and the provisions of Schedule 7 have effect with respect to the procedure for making such an order.
(6) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.
(1) The Secretary of State may by order make such provision amending, repealing, or preserving the effect of, any enactment passed or made before the commencement of this Part (not being a special enactment to which section 160(1), (2) or (3) applies) as appears to him appropriate in consequence of the provisions of this Part.
(2) Subject to any order under this section and (in the case of a public general Act) to any express amendment made by this Act, any such enactment which proceeds by reference to any provision of the [1950 c. 39.] Public Utilities Street Works Act 1950, or any other provision repealed by this Act in consequence of this Part, shall continue to have effect as if the provision referred to had not been repealed.
(3) An order under this section may, in particular, make provision in relation to—
(a) enactments providing for the keeping of records of apparatus, and
(b) enactments providing for the giving of notice of proposed road works.
(4) An order under this section may contain such transitional provisions and savings as appear to the Secretary of State to be appropriate.
(5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) Except as mentioned in section 138(6), the provisions of Schedule 7 have effect with respect to the making of an order under this section in relation to a special enactment.
(7) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.
(1) The following provisions apply with respect to land (not forming part of a road) in which immediately before the commencement of this Part there is apparatus placed by virtue of Schedule 1 to the [1950 c. 39.] Public Utilities Street Works Act 1950 (authorisation of works in certain land abutting a road).
(2) If any person having a sufficient interest in the land gives notice to the undertaker that he objects to the continuance of the powers and rights over the land given by that Schedule, those powers and rights shall cease to have effect at the end of the period of six months from the date on which the notice was given.
For this purpose a person has a sufficient interest in the land if he is an owner, lessee or occupier of the land having an interest greater than that of tenant for a year or from year to year.
(3) The road works authority shall indemnify the undertaker in respect of the costs reasonably incurred by him in or in connection with—
(a) any removal of apparatus rendered necessary by the cessation of his powers and rights under this section, and
(b) the execution of any works or taking of any other measures rendered necessary thereby for the purposes of the supply or service for which apparatus whose removal is rendered necessary was used.
(4) Where the land becomes part of the road after the commencement of this Part, any consent which would have been required for the placing of the apparatus in the road had it been placed there immediately after the land in question became part of the road shall be deemed to have been given unconditionally.
(5) Subject to any exercise of the right conferred by subsection (2), the rights and powers of the undertaker under Schedule 1 to the Public Utilities Street Works Act 1950 continue unaffected by the repeal of that Act.
(1) In this Part “prescribed” means prescribed by the Secretary of State by regulations, which may (unless the context otherwise requires) make different provision for different cases.
(2) Regulations under this Part shall be made by statutory instrument which, unless provision to the contrary is made, shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(3) Regulations under this Part may provide for references in the regulations to any specified document to operate as references to that document as revised or re-issued from time to time.
(1) In this Part—
“apparatus” includes any structure for the lodging therein of apparatus or for gaining access to apparatus;
“carriageway” and “footway” have the same meaning as in the [1984 c. 54.] Roads (Scotland) Act 1984;
“enactment” includes an enactment contained in subordinate legislation within the meaning of the [1978 c. 30.] Interpretation Act 1978.
“in”, in a context referring to works, apparatus or other property in a road or other place includes a reference to works, apparatus or other property under, over, across, along or upon it;
“railway” includes a light railway other than one in the nature of a tramway (see the definition of “tramway” below);
“reinstatement” includes making good;
“special enactment” means an enactment which is not a public general enactment, and includes—
any Act for confirming a provisional order,
any provision of a public general Act in relation to the passing of which any of the Standing Orders of the House of Lords or the House of Commons relating to Private Business applied, and
any enactment to the extent that it is incorporated or applied for the purposes of a special enactment;
“statutory right” means a right (whether expressed as a right, a power or otherwise) conferred by an enactment (whenever passed or made), other than a right exercisable by virtue of a permission granted under section 109;
“traffic” includes pedestrians and animals;
“traffic authority” and “traffic sign” have the same meaning as in the [1984 c. 27.] Road Traffic Regulation Act 1984;
“tramway” means a system, mainly or exclusively for the carriage of passengers, using vehicles guided, or powered by energy transmitted, by rails or other fixed apparatus installed exclusively or mainly in a road.
(2) A right to execute works which extends both to a road and to other land is included in references in this Part to a right to execute works in a road in so far as it extends to the road.
(3) A right to execute works which extends to part of the road but not the whole is included in references in this Part to a right to execute works in a road; and in relation to such a right references in this Part to the road in which it is exercisable shall be construed as references to the part to which the right extends.
(4) For the purposes of this Part apparatus shall be regarded as affected by works if the effect of the works is to prevent or restrict access to the apparatus (for example, by laying other apparatus above or adjacent to it).
(5) Section 28 of the [1970 c. 44.] Chronically Sick and Disabled Persons Act 1970 (power to define “disability” and other expressions) applies in relation to the provisions of this Part as to the provisions of that Act.
The expressions listed below are defined or otherwise fall to be construed for the purposes of this Part in accordance with the provisions indicated—
| affected by (in relation to apparatus and works) | section 164(4) |
| apparatus | section 148(2) and 164 |
| arbitration | section 158 |
| bridge | section 147(1)(a) |
| bridge authority | section 147(1)(b) |
| carriageway | section 164 |
| costs | section 155 |
| disability | (see section 164(4)) |
| emergency works | section 111 |
| enactment | section 164 |
| expenses | section 155 |
| footway | section 164 |
| in (in a context referring to works, apparatus or other property in a road) | section 164 |
| local roads authority | section 145(1) |
| major bridge works | section 147(2) |
| major works for roads purposes | section 145(3) |
| major transport works | section 150(2) |
| notice | section 156 |
| prescribed | section 163 |
| public road | section 145(1) |
| railway | section 164 |
| reinstatement | section 164 (and see sections 129(5) and 149(1)) |
| relevant authority (in relation to road works) | section 108(6) (and see section 150(3)) |
| road | section 107(1) |
| road managers | section 108(4) |
| road works | section 107(3) (and see section 164(2) and (3)) |
| road works authority | section 108(1) |
| roads authority | section 145(1) |
| special enactment | section 164(1) |
| statutory right | section 164(1) |
| traffic | section 164(1) |
| traffic authority | section 164(1) |
| traffic sign | section 164(1) |
| tramway | section 164(1) |
| transport authority | section 150(1)(a) |
| transport undertaking | section 150(1)(b) |
| undertaker (in relation to road works or apparatus) | sections 107(4) and (5) and 148(3) |
| working day | section 157(2) |
| works for road purposes | section 145(2). |
New Roads and Street Works Act 1991