Office of Public Sector Information
PART III continued
(1) It is the duty of an undertaker executing street works involving—
(a) breaking up the street, or any sewer, drain or tunnel under it, or
(b) tunnelling or boring under the street,
to secure that, except in such cases as may be prescribed, the execution of the works is supervised by a person having a prescribed qualification as a supervisor.
(2) It is the duty of an undertaker executing street works involving—
(a) breaking up or opening the street, or any sewer, drain or tunnel under it, or
(b) tunnelling or boring under the street,
to secure that, except in such cases as may be prescribed, there is on site at all times when any such works are in progress at least one person having a prescribed qualification as a trained operative.
(3) An undertaker who fails to comply with his duty under subsection (1) or (2) commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) Regulations made by the Secretary of State for the purposes of this section may include provision with respect to—
(a) the approval of bodies conferring qualifications (and the withdrawal of such approval), and
(b) the circumstances in which a qualification may be conferred.
(1) An undertaker executing street works shall afford the street authority reasonable facilities for ascertaining whether he is complying with his duties under this Part.
(2) An undertaker who fails to afford the street authority such facilities 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.
(1) Where street works are likely to affect another person’s apparatus in the street, the undertaker executing the works shall take all reasonably practicable steps—
(a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and
(b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.
(2) An undertaker who fails to comply with subsection (1) 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.
(3) In proceedings against a person for such an offence it is a defence for him to show that the failure was attributable—
(a) to his not knowing the position, or not knowing of the existence, of another person’s apparatus, or
(b) to his not knowing the identity or address of the person to whom any apparatus belongs,
and that his ignorance was not due to any negligence on his part or to any failure to make inquiries which he ought reasonably to have made.
(1) It is the duty of the undertaker by whom street works are executed to reinstate the street.
(2) He shall begin the reinstatement as soon after the completion of any part of the street works as is reasonably practicable and shall carry on and complete the reinstatement with all such dispatch as is reasonably practicable.
(3) He shall before the end of the next working day after the day on which the reinstatement is completed inform the street authority that he has completed the reinstatement of the street, stating whether the reinstatement is permanent or interim.
(4) If it is interim, he shall complete the permanent reinstatement of the street as soon as reasonably practicable and in any event within six months (or such other period as may be prescribed) from the date on which the interim reinstatement was completed; and he shall notify the street authority when he has done so.
(5) The permanent reinstatement of the street shall include, in particular, the reinstatement of features designed to assist people with a disability.
(6) An undertaker who fails to comply with any provision of this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(7) In proceedings against a person for an offence of failing to comply with subsection (2) it is a defence for him to show that any delay in reinstating the street was in order to avoid hindering the execution of other works, or other parts of the same works, to be undertaken immediately or shortly thereafter.
(1) An undertaker executing street works shall in reinstating the street comply with such requirements as may be prescribed as to the specification of materials to be used and the standards of workmanship to be observed.
(2) He shall also ensure that the reinstatement conforms to such performance standards as may be prescribed—
(a) in the case of interim reinstatement, until permanent reinstatement is effected, and
(b) in the case of permanent reinstatement, for the prescribed period after the completion of the reinstatement.
This obligation is extended in certain cases and restricted in others by the provisions of section 73 as to cases where a reinstatement is affected by subsequent works.
(3) Regulations made for the purposes of this section may make different provision in relation to different classes of excavation and different descriptions of street, and in relation to interim and permanent reinstatement.
(4) The Secretary of State may issue or approve for the purposes of this section codes of practice giving practical guidance as to the matters mentioned in subsections (1) and (2); and regulations made for the purposes of this section may provide that—
(a) so far as an undertaker complies with such a code of practice he shall be taken to comply with his duties under this section; and
(b) a failure in any respect to comply with any such code is evidence of failure in that respect to comply with those duties.
(5) An undertaker who fails to comply with his duties under this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) The street authority may carry out such investigatory works as appear to them to be necessary to ascertain whether an undertaker has complied with his duties under this Part with respect to reinstatement.
If such a failure is disclosed, the undertaker shall bear the cost of the investigatory works; if not, the street authority shall bear the cost of the investigatory works and of any necessary reinstatement.
(2) Where an undertaker has failed to comply with his duties under this Part with respect to reinstatement, he shall bear the cost of—
(a) a joint inspection with the street authority to determine the nature of the failure and what remedial works need to be undertaken,
(b) an inspection by the authority of the remedial works in progress, and
(c) an inspection by the authority when the remedial works have been completed.
(3) The street 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.
(4) If it appears to the street 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 street, 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.
(1) The provisions of this section apply in relation to an undertaker’s duty under section 71(2) to ensure that a reinstatement conforms to the prescribed performance standards for the requisite period; and references to responsibility for a reinstatement and to the period of that responsibility shall be construed accordingly.
(2) Where a reinstatement is affected by remedial works executed by the undertaker in order to comply with his duties under this Part with respect to reinstatement and the extent of the works exceeds that prescribed, the subsequent reinstatement shall be treated as a new reinstatement as regards the period of his responsibility.
(3) Where the street authority carry out investigatory works in pursuance of section 72(1) and the investigation does not disclose any failure by the undertaker to comply with his duties under this Part with respect to reinstatement, then, to the extent that the original reinstatement has been disturbed by the investigatory works, the responsibility of the undertaker for the reinstatement shall cease.
(4) Where a reinstatement is affected by remedial works executed by the street authority in exercise of their powers under section 72(3) or (4) (powers to act in default of undertaker)—
(a) the undertaker is responsible for the subsequent reinstatement carried out by the authority, and
(b) if the extent of the works exceeds that prescribed, the subsequent reinstatement shall be treated as a new reinstatement as regards the period of his responsibility.
(5) The following provisions apply where a reinstatement is affected by subsequent works in the street otherwise than as mentioned above.
(6) If the reinstatement is dug out to any extent in the course of the subsequent works, the responsibility of the undertaker for the reinstatement shall cease to that extent.
(7) If in any other case the reinstatement ceases to conform to the prescribed performance standards by reason of the subsequent works, the responsibility of the undertaker for the reinstatement is transferred to the person executing the subsequent works; and the provisions of this Part apply in relation to him as they would have applied in relation to the undertaker.
(8) Where there are successive subsequent works affecting a reinstatement, then as between earlier and later works—
(a) subsections (6) and (7) apply in relation to the cessation or transfer of the responsibility of the person for the time being responsible for the reinstatement; and
(b) if the reinstatement ceases to conform to the prescribed performance standards by reason of the works or any of them, it shall be presumed until the contrary is proved that this was caused by the later or last of the works.
(1) The Secretary of State may make provision by regulations requiring an undertaker executing street works in a maintainable highway to pay a charge to the highway authority where—
(a) the duration of the works exceeds such period as may be prescribed, and
(b) the works are not completed within a reasonable period.
(2) For this purpose “a reasonable period” means such period as is agreed by the authority and the undertaker to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable, for completion of the works in question.
In default of agreement, the authority’s view as to what is a reasonable period shall be acted upon pending the decision of the arbitrator.
(3) The regulations may provide that if an undertaker has reason to believe that the duration of works will exceed the prescribed period he may submit to the authority an estimate of their likely duration—
(a) in the case of works in connection with the initial placing of apparatus in the street in pursuance of a street works licence, together with his application for the licence,
(b) in the case of other works (not being emergency works), together with his notice under section 55 (notice of starting date), or
(c) in the case of emergency works, as soon as reasonably practicable after the works are begun,
and that the period stated in an estimate so submitted shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
(4) The regulations may also provide that if it appears to the undertaker that by reason of matters not previously foreseen or reasonably foreseeable the duration of the works—
(a) is likely to exceed the prescribed period,
(b) is likely to exceed the period stated in his previous estimate, or
(c) is likely to exceed the period previously agreed or determined to be a reasonable period,
he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
(5) The amount of the charge shall be determined in such manner as may be prescribed by reference to the time taken to complete the works and the extent to which the surface of the highway is affected by the works.
Different rates of charge may be prescribed according to the place and time at which the works are executed and such other factors as appear to the Secretary of State to be relevant.
(6) The regulations may make provision as to the time and manner of making payment of any charge.
(7) The regulations shall provide that a highway authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.
(8) The first regulations for the purposes of this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament; subsequent regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) An undertaker executing street works shall, subject to the provisions of any scheme under this section, pay to the street authority the prescribed fee in respect of each inspection of the works carried out by the authority.
(2) Different fees may be prescribed according to the nature or extent of the excavation or other works, the place where they are executed and such other factors as appear to the Secretary of State to be relevant.
(3) The Secretary of State may by regulations make a scheme under which undertakers pay the prescribed fee only in respect of such proportion or number of excavations or other works as may be determined in accordance with the scheme.
(4) The scheme may make provision—
(a) as to the periods and areas by reference to which the proportion or number is to be determined, and
(b) as to the intervals at which an account is to be struck between an undertaker and a street authority and any necessary payment or repayment made;
and different provision may be made for different descriptions of undertaker and different descriptions of street authority.
(5) Nothing in this section applies in relation to inspections in respect of which the undertaker is obliged to bear the cost under section 72(2) (inspections consequent on his failure to comply with his duties as to reinstatement).
(1) Where by reason of street works—
(a) the traffic authority makes an order or issues a notice under section 14 of the [1984 c. 27.] Road Traffic Regulation Act 1984 (temporary prohibition or restriction of traffic), or
(b) a concessionaire issues a notice under that section by virtue of section 3(4) of this Act,
the authority or concessionaire may recover from the undertaker the whole of the costs incurred by them in connection with or in consequence of the order or notice.
(2) Those costs shall be taken to include, in particular, the cost to the authority or concessionaire—
(a) of complying with any requirement to notify the public of any matter in connection with the making, issuing or operation of the order or notice, and
(b) of providing traffic signs in connection with the prohibition or restriction of traffic by the order or notice.
(1) Where by reason of street works the use of a highway is restricted or prohibited and the diverted traffic uses as an alternative route a highway of a lower classification, the undertaker shall indemnify the highway authority for the latter highway in respect of costs reasonably incurred by them—
(a) in strengthening the highway, so far as that is done with a view to and is necessary for the purposes of its use by the diverted traffic; or
(b) in making good any damage to the highway occurring in consequence of the use by it of the diverted traffic.
(2) For this purpose the order of classification of highways, from higher to lower, is as follows:
| 1 | Trunk roads. |
| 2 | Principal roads. |
| 3 | Other classified roads. |
| 4 | Other highways. |
As to principal and other classified roads, see sections 12 and 13 of the [1980 c. 66.] Highways Act 1980.
(1) The Secretary of State may make provision by regulations requiring an undertaker executing street works to contribute to the costs incurred or likely to be incurred by the street authority or, in the case of a road subject to a concession within the meaning of Part I of this Act, by the concessionaire, in works of reconstruction or re-surfacing of the street.
(2) The regulations may provide—
(a) for a contribution to the cost of particular remedial works, or
(b) for a general contribution calculated in such manner as may be prescribed.
(3) In the former case the regulations may contain provision for apportioning the liability where the need for the remedial works is attributable to works executed by more than one person.
(4) In the latter case the regulations may provide for the amount of the contribution to vary according to the nature of the street, the description and extent of the works and such other factors as appear to the Secretary of State to be relevant.
(5) The first regulations under this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament; subsequent regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) An undertaker shall, except in such cases as may be prescribed, record the location of every item of apparatus belonging to him as soon as reasonably practicable after—
(a) placing it in the street or altering its position,
(b) locating it in the street in the course of executing any other works, or
(c) being informed of its location under section 80 below,
stating the nature of the apparatus and (if known) whether it is for the time being in use.
(2) The records shall be kept up to date and shall be kept in such form and manner as may be prescribed.
(3) An undertaker shall make his records available for inspection, at all reasonable hours and free of charge, by any person having authority to execute works of any description in the street or otherwise appearing to the undertaker to have a sufficient interest.
(4) If an undertaker fails to comply with his duties under this section—
(a) he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale; and
(b) he is liable to compensate any person in respect of damage or loss incurred by him in consequence of the failure.
(5) In criminal or civil proceedings arising out of any such failure 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.
(6) An order under section 102 (power to make consequential amendments, repeals, &c.) relating to an enactment or instrument containing provision for the keeping of records of apparatus which appears to the Secretary of State to be superseded by or otherwise inconsistent with the provisions of this section—
(a) shall not be subject to the procedure provided for in Schedule 5, and
(b) may make such transitional and other provision as appears to the Secretary of State appropriate for applying in relation to records compiled under that enactment or instrument the provisions of subsections (2) to (5) above and section 80 below.
(1) A person executing works of any description in the street who finds apparatus belonging to an undertaker which is not marked, or is wrongly marked, on the records made available by the undertaker, shall take such steps as are reasonably practicable to inform the undertaker to whom the apparatus belongs of its location and (so far as appears from external inspection) its nature and whether it is in use.
(2) Where a person executing works of any description in the street finds apparatus which does not belong to him and is unable, after taking such steps as are reasonably practicable, to ascertain to whom the apparatus belongs, he shall—
(a) if he is an undertaker, note on the records kept by him under section 79(1) (in such manner as may be prescribed) the location of the apparatus he has found and its general description; and
(b) in any other case, inform the street authority of the location and general description of the apparatus he has found.
(3) Subsections (1) and (2) have effect subject to such exceptions as may be prescribed.
(4) A person who fails to comply with subsection (1) or (2) commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) An undertaker having apparatus in the street shall secure that the apparatus is maintained to the reasonable satisfaction of—
(a) the street authority, as regards the safety and convenience of persons using the street (having regard, in particular, to the needs of people with a disability), the structure of the street and the integrity of apparatus of the authority in the street, and
(b) any other relevant authority, as regards any land, structure or apparatus of theirs;
and he shall afford reasonable facilities to each such authority for ascertaining whether it is so maintained.
(2) For this purpose maintenance means the carrying out of such works as are necessary to keep the apparatus in efficient working condition (including periodic renewal where appropriate); and includes works rendered necessary by other works in the street, other than major highway, bridge or transport works (as to which, see sections 84 and 85 below).
(3) If an undertaker fails to give a relevant authority the facilities required by this section—
(a) the street authority may in such cases as may be prescribed, and
(b) any other relevant authority may in any case,
execute such works as are needed to enable them to inspect the apparatus in question, including any necessary breaking up or opening of the street.
(4) If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section—
(a) the street authority may in such cases as may be prescribed, and
(b) any other relevant authority may in any case,
execute any emergency works needed in consequence of the failure.
(5) The provisions of this Part apply in relation to works executed by a relevant authority under subsection (3) or (4) as if they were executed by the undertaker; and the undertaker shall indemnify the authority in respect of the costs reasonably incurred by them in executing the works.
(6) A relevant authority who execute or propose to execute any works under subsection (3) or (4) shall give notice to any other relevant authority as soon as reasonably practicable stating the general nature of the works.
(7) Nothing in subsection (3) or (4) shall be construed as excluding any other means of securing compliance with the duties imposed by subsection (1).
(1) An undertaker shall compensate—
(a) the street authority or any other relevant authority in respect of any damage or loss suffered by the authority in their capacity as such, and
(b) any other person having apparatus in the street in respect of any expense reasonably incurred in making good damage to that apparatus,
as a result of the execution by the undertaker of street works or any event of a kind mentioned in subsection (2).
(2) The events referred to in subsection (1) are any explosion, ignition, discharge or other event occurring to gas, electricity, water or any other thing required for the purposes of a supply or service afforded by an undertaker which—
(a) at the time of or immediately before the event in question was in apparatus of the undertaker in the street, or
(b) had been in such apparatus before that event and had escaped therefrom in circumstances which contributed to its occurrence.
(3) The liability of an undertaker under this section arises—
(a) whether or not the damage or loss is attributable to negligence on his part or on the part of any person for whom he is responsible, and
(b) notwithstanding that he is acting in pursuance of a statutory duty.
(4) However, his liability under this section does not extend to damage or loss which is attributable to misconduct or negligence on the part of—
(a) the person suffering the damage or loss, or any person for whom he is responsible, or
(b) a third party, that is, a person for whom neither the undertaker nor the person suffering the damage or loss is responsible.
(5) For the purposes of this section the persons for whom a person is responsible are his contractors and any person in his employ or that of his contractors.
(6) Nothing in this section shall be taken as exonerating an undertaker from any liability to which he would otherwise be subject.
(1) This section applies to works for road purposes other than major highway works (as to which see section 84 below).
(2) Where works to which this section applies are likely to affect apparatus in the street, the authority executing the works shall take all reasonably practicable steps—
(a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and
(b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.
(3) An authority who fail to comply with subsection (2) commit an offence in respect of each failure and are liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) In proceedings against an authority for such an offence it is a defence for them to show that the failure was attributable—
(a) to their not knowing the position, or not knowing of the existence, of a person’s apparatus, or
(b) to their not knowing the identity or address of the person to whom any apparatus belongs,
and that their ignorance was not due to any negligence on their part or to any failure to make inquiries which they ought reasonably to have made.
(1) Where an undertaker’s apparatus in a street is or may be affected by major highway works, major bridge works or major transport works, the highway, bridge or transport authority concerned and the undertaker shall take such steps as are reasonably required—
(a) to identify any measures needing to be taken in relation to the apparatus in consequence of, or in order to facilitate, the execution of the authority’s works,
(b) to settle a specification of the necessary measures and determine by whom they are to be taken, and
(c) to co-ordinate the taking of those measures and the execution of the authority’s works,
so as to secure the efficient implementation of the necessary work and the avoidance of unnecessary delay.
(2) The Secretary of State may issue or approve for the purposes of this section a code of practice giving practical guidance as to the matters mentioned in subsection (1) and the steps to be taken by the authority and the undertaker.
(3) Any dispute between the authority and the undertaker as to any of the matters mentioned in subsection (1) shall, in default of agreement, be settled by arbitration.
(4) If the authority or the undertaker fails to comply with an agreement between them as to any of those matters, or with the decision of the arbitrator under subsection (3), the authority or undertaker shall be liable to compensate the other in respect of any loss or damage resulting from the failure.
(1) Where an undertaker’s apparatus in a street is affected by major highway works, 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 highway, 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 street 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 84 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—
“highway authority” and “local highway authority” have the same meaning as in the [1980 c. 66.] Highways Act 1980; and
“maintainable highway” means a highway which for the purposes of that Act is maintainable at the public expense.
New Roads and Street Works Act 1991