Section 50: Qualifications of supervisors and operatives

130.     Section 50 amends section 67 of NRSWA which provides that when carrying out street works involving breaking up the street, or any sewer, drain or tunnel under it, or tunnelling or boring into the street an undertaker must secure that, except in such cases as may be prescribed, the execution of the works is supervised by a person having a prescribed qualification. They must also ensure that when such works are in progress there is always at least one person on site having a prescribed qualification as an operative. Subsections (2) and (3) insert new subsections (1A)(a) and (2A)(a) into section 67, to enable a street authority where such works are taking place or have taken place, to require by notice that an undertaker provide the names of the current or previous qualified persons, and evidence of the required qualification.

131.     Subsections (2) and (3) also insert new subsections (1A)(b) and (2A)(b) into section 67 to enable regulations to prescribe the evidence that undertakers must supply in the cases of both supervisors and operatives.

132.     Subsection (2B) inserted by subsection (3) provides that a notice under subsections (1A) or (2A) may be given at any time while the works are being executed or within such period after their completion as may be prescribed.

133.     Subsection (5) amends the existing powers of the Secretary of State to make regulations dealing with the training qualifications issued by approved training bodies. It provides that the regulations may prescribe the form of any document issued by an approved body to certify a qualification.

Section 51: Works following substantial road works

134.     Section 51 amends the existing provision restricting street works following substantial road works carried out by the highway authority. Section 58 of NRSWA provides that where a street authority propose to carry out substantial road works in a highway, the street authority may by notice restrict the execution of street works during the twelve months following the completion of the road works.

135.     Subsections (2) and (3) amend section 58 so as to provide that the maximum length of a restriction on the execution of street works, and the period of notification of a proposed restriction required to be given by the street authority, are to be prescribed in regulations, rather than being fixed periods in the primary legislation. Subsection (4) amends section 58(3) to enable regulations to prescribe certain descriptions of persons who must be notified of the proposed restriction.

136.     Section 58(4) currently provides that a notice restricting the execution of street works ceases to be effective if the road works to which it relates are not substantially begun on or within one month from the date specified in the notice, or in cases where they are in progress on the specified date in the notice (in the part of the highway to which the restriction relates), within one month from the completion of those works. Subsection (5) of this section amends section 58(4) to provide that regulations may prescribe the period after which a notice ceases to be effective (if the works are not substantially begun).

137.     Section 58(7) currently provides that the question as to whether the street authority has unreasonably withheld consent to an undertaker to execute works shall be settled by arbitration. Subsection (7) amends section 58(7) to provide that disputes shall be decided in the prescribed manner. Subsection (8) inserts subsection (7A) into section 58, providing that regulations under section 58(7) may make provide for questions to be settled by arbitration or by a person designated by the Secretary of State.

138.     Subsection (9) refers to the notices that an undertaker must give an authority before commencing street works, under section 55 of the Act. It provides for different notice periods to be prescribed if the undertaker has been given a notice under section 58(1) relating to restrictions following substantial road works.

Section 52 and Schedule 4: Restriction on works following substantial street works

139.     Section 52 inserts a new section 58A into NRSWA, and refers to Schedule 4 of the Act, which inserts a new Schedule 3A into NRSWA. These provisions confer a new power for a street authority to impose a restriction following substantial street works carried out by undertakers. Substantial street works may be prescribed in regulations. It is similar to the corresponding provision in section 58 of NRSWA (restriction on works following substantial road works).

140.     Paragraph 1 of Schedule 3A provides that the Schedule applies where an authority receive a notice under sections 54 or 55 of NRSWA from an undertaker notifying them of proposed substantial street works.

141.     Paragraph 2 enables a street authority to publish a notice informing undertakers that substantial street works will take place and that they intend to impose a restriction. Regulations may provide for how the notice is to be published and its form and content. This paragraph also lists the various persons who should be given a copy of the notice - those listed under section 58 and any other person of a prescribed description. The published notice requires undertakers to notify the street authority within the period specified in the notice, which may not be less than a period to be prescribed in regulations, if they wish to carry out works. This period is referred to as the "notice period". Regulations may also prescribe the form of the notice required to be given by undertakers. The notices required to be given by undertakers under section 55 are not required if they have to give this other type of notice.

142.     Paragraph 3 sets out the power of the street authority to make directions to the following undertakers once the notice period has expired:

• the undertaker proposing the substantial works;

• undertakers who have given a notice in response to the authorities' notice;

• any other undertakers who have previously given notice of their works.

143.     The street authority's directions can be given in respect of the date on which he may begin to execute the works proposed by him. Where an undertaker has received a direction and begins works before the directed date he is guilty of a level 5 offence. Once the notice period specified has expired paragraph 3(4) makes it a level 5 offence for any other undertaker to carry out works before the undertakers directed by the authority. Paragraph 3(5) excludes emergency works and other cases that may be prescribed from the scope of this offence.

144.     Paragraph 4 confers a power on the authority to make a direction restricting further works. The direction must be made by the authority after the expiry of the notice period and before the completion of the works carried out as a result of the directions under paragraph 3. The procedure for giving directions and their form and content may be prescribed by regulations. The paragraph also provides that regulations may prescribe the maximum period of the duration of the restriction.

145.     Paragraph 5 has the same effect as the provisions in section 58 which provide that certain categories of work may be carried out whilst the restriction is in place. It also provides for regulations to prescribe the process for settling disputes concerning the giving of consent for such works.

146.     The remainder of section 52 makes consequential amendments to provisions in NRSWA, so as to provide that the giving by an undertaker of a notice under paragraph 2 of Schedule 3A in relation to street works that they propose to carry out, has similar consequences to the giving of a section 55 notice.

Section 53: Notices requiring remedial works relating to reinstatements

147.     At present, sections 72 and 90 of NRSWA provide that where an undertaker carries out works which involve breaking open streets, sewers, drains or tunnels, but fails to reinstate the street properly afterwards, the relevant authority (for instance the street authority) can require them to rectify the failure within a period of not less than 7 working days from the date of the notice. Section 53 amends sections 72 and 90 to replace the 7 day period, and to provide that the minimum period within which the street authority can require the undertaker to rectify the failure (from the date of the notice) may be prescribed in regulations, and that cases may be prescribed in which no minimum applies.

Section 54: Duty to notify street authority of reinstatement

148.     Under section 70(3) of NRSWA the undertaker must inform an authority before the end of the next working day after the day on which the reinstatement is completed, that the reinstatement has been carried out. The reinstatement may be permanent or interim but if interim, it must be made permanent within six months. Section 54 amends the time period for giving the notice required by section 70(3) to provide that the undertaker has up to seven working days from the completion of the reinstatement to notify the authority that the reinstatement has been carried out. The section also enables regulations to require other prescribed information about the reinstatement to be provided. Subsection (3) also inserts a new subsection (4A) into section 70 of NRSWA, which provides that where an undertaker carries out an permanent reinstatement after the interim one he must also give a further notice within seven working days from the date on which the permanent reinstatement was completed, giving such other information about the reinstatement as may be prescribed.

149.     The new subsection (4B) inserted by subsection (3) provides that the time period for notifying both permanent and interim reinstatements, and the maximum period for completion of a permanent reinstatement from the time of an interim reinstatement may be modified by regulations.

Section 55: Power of street authority to require undertaker to re-surface street

150.     Section 55 inserts new sections 73A, 73B and 73C into NRSWA to enable a street authority, in certain circumstances, to require an undertaker to resurface a street.

151.     Section 73A provides for a "re-surfacing notice" to be given by the authority to the undertaker specifying the resurfacing work they require the undertaker to carry out. A re-surfacing notice could be given when an undertaker:

• has given notice under section 54 or 55 of NRSWA, or under paragraph 2(1)(d) of Schedule 3A of that Act, to carry out street works that will involve the breaking up of any part of the street,

• is executing street works which involve the breaking up of any part of the street at the time the notice is given, or

• has previously carried out street works in that street which involved the breaking up of any part of the street (there is provision to prescribe how far back in time this could be applied but any period is permitted unless one is prescribed).

152.     The works in respect of which a re-surfacing notice may be given are limited to works carried out from the time of commencement of this section. Undertakers will be subject to the provisions from that time irrespective of whether or not any regulations have been made by the Secretary of State (in England) or the National Assembly for Wales (in Wales), under the accompanying provisions.

153.     Section 73A(4) enables a resurfacing notice to relieve the undertaker of some or all of his duties under section 70 of NRSWA with regard to reinstatement of the surface of the street. Regulations may restrict the extent to which the duty may be relieved. Section 73A(5) enables resurfacing notices to be varied or withdrawn.

154.     Section 73A(6) provides that a street authority may serve a resurfacing notice notwithstanding that the authority (in any capacity) are under a duty to undertake any of the works specified in the notice.

155.     Section 73B deals with the timing of resurfacing works. It enables the authority to specify in a "re-surfacing notice" times, stages and dates for beginning, executing and completing works. Regulations may restrict the use of this power, in some or all cases, including any requirement to consult an undertaker before imposing a restriction.

156.     Section 73C provides that the new road surface must conform to any prescribed standards for the materials and workmanship as well as any performance standards for a prescribed period after resurfacing.

Section 56: Re-surfacing: regulations and guidance

157.     Section 56 inserts sections 73D and 73E into NRSWA.

158.     Section 73D provides for regulations supplementing sections 73A-73C. In particular, these may provide for the following:

• information for resurfacing notices;

• deciding which undertaker should be served with the notice;

• notification of prescribed events by undertakers;

• prescribe circumstances in which an undertaker is entitled to pay a sum to the street authority instead of executing the works specified in a re-surfacing notice, and make provision about the manner in which such sums are to be calculated;

• rights of review or appeal against a notice or any requirement contained in it;

• determination of disputes;

• application of any other provisions in Part 3 of NRSWA or in the Highways Act 1980 to resurfacing works;

• relieving other undertakers of some or all of their duties under section 70 of NRSWA with regard to reinstatement of the surface of the street.

159.     Section 73D(4) enables offences to be created by regulations.

160.     Section 73E provides for the Secretary of State to issue a code of practice giving practical guidance on the matters in sections 73A-73D and on regulations made under those sections.

Section 57: Contributions to costs of re-surfacing by undertaker

161.     Section 57 inserts a new section 78A into NRSWA which deals with the contributions to costs in relation to resurfacing work by undertakers. It provides for street authorities to pay contributions to the undertaker carrying out the resurfacing as well as for contributions from other undertakers who have carried out reinstatements in that part of the street. It also provides for those other undertakers to pay contributions to the street authority if the undertaker served with a re-surfacing notice elects instead to make a payment to the authority, which then carries out the work. In either case, contributions may only be sought from undertakers who carry out works after the commencement of this section. Undertakers will be subject to the provisions from that time, irrespective of whether or not any regulations have been made by the Secretary of State (in England) or the National Assembly for Wales (in Wales) under this section.

162.     The section enables regulations to set out:

• how the contributions to the costs of re-surfacing are calculated;

• the method of payment (including provision for the manner of payment and payment by instalments);

• the period from which payments are required to be made;

• how undertakers are to be informed by the street authority that they are required to make a contribution to the costs of re-surfacing;

• the extent to which the street authority is required to make up any contributions that cannot be recovered as a result of the insolvency of an undertaker;

• requirements that disputes of a prescribed description are to be determined in such a manner and by such persons as provided for in the regulations; and

• provisions to deal with cases where an undertaker has already made, or is liable to make, a payment to the authority under section 78 of NRSWA (contributions to making good the cost of long-term damage).

Section 58: Inspection fees

163.     Section 58 widens the regulation making powers of the Secretary of State in relation to the setting of fees for the inspection of utilities' works. Section 72(2) of NRSWA provides for the circumstances where a street authority inspects an undertaker's work and finds that the undertaker has failed to carry out his duty to properly reinstate the street. In these circumstances, the undertaker is required to meet the cost of three inspections: a joint inspection with the authority to see what action is needed to remedy the fault, an inspection during the 'remedial' works and another at their completion.

164.     Subsection (1) adds new subsections (2A) and (2B) to section 72 of NRSWA, which allow the Secretary of State to prescribe a fee for each of the three types of inspections. If he does so, the undertaker is obliged to pay the prescribed fee rather than the cost of the inspection. The fee may vary according to the nature of the inspection required, how extensive it is, the place where it is carried out, or any other factor that appears relevant to the Secretary of State.

165.     Subsection (2) substitutes a new section 75 of NRSWA, widening the scope of the Secretary of State's regulation making power. The new section 75(3) will enable the regulations to differentiate between different descriptions of street authority and undertaker. It also allows for different provision to be made according to their previous performance. Regulations can prescribe how and over what period an undertaker's previous performance would be assessed. The new section 75(5) enables regulations to prescribe the disputes which are required to be settled by arbitration.

Section 59: Guidance about inspections

166.     NRSWA provides that an undertaker who carries out street works must pay a street authority a fee in respect of certain inspections of the works. It also provides for a street authority to carry out such investigatory works as appear to them to be necessary to ascertain whether the undertaker has complied with his duties with respect to reinstatement. Section 59 inserts a new section 73F into NRSWA. Section 73F (guidance about street authority inspections) provides for the Secretary of State to issue or approve guidance to street authorities exercising their powers to inspect works. Section 73F(2) provides that an authority must have regard to the guidance in carrying out any such inspections. Section 73F(3) clarifies that guidance on the carrying out of investigatory works may be provided under the umbrella of guidance on inspections generally.

Part 5: Highways and Roads

167.     In this Part, the regulation making powers referred to in the Highways Act 1980 are exercised by the Secretary of State (in England), and by the National Assembly for Wales (in Wales). References in this Part to the power to make regulations should be read accordingly.

Section 60: Strategic Roads in London: initial designation by Secretary of State

168.     Section 60 provides that the Secretary of State may by order made by statutory instrument designate roads and proposed roads in Greater London as strategic roads, other than roads for which the Secretary of State or Transport for London is the traffic authority. A strategic road is a road in respect of which the powers in section 301A of the Highways Act 1980, and section 121B of the Road Traffic Regulation Act 1984 may be exercised (as those sections are amended by sections 62 and 63).

169.     Subsection (2) provides that any road or proposed road so designated shall become a strategic road from the date specified in the order. Subsection (3) provides that no order under the section may be made in respect of a road or proposed road in a London borough if an order under that subsection has been made in respect of any other road or proposed road in that borough. This means that the Secretary of State is able, if he thinks fit, to designate the strategic roads in separate orders for individual boroughs or groups of boroughs, but cannot revisit a designation in relation to a borough.

Section 61: Orders of the Greater London Authority changing what are strategic roads

170.     Section 61 enables changes to be made to the network of strategic roads in London. Subsection (1) provides that if the Mayor of London considers it expedient, the Greater London Authority may by order direct that a road or a proposed road should become a strategic road. Subsection (3) provides that an order under subsection (1) will not have effect unless the consent of the council for the London borough in which the road or proposed road is situated is obtained or where it is not obtained the order is confirmed by the Secretary of State. Subsection (4) enables the Greater London Authority by order to direct that a road shall cease to be a strategic road. The Greater London Authority may act through the Mayor of London.

Section 62: London borough councils exercising powers under Highways Act 1980 so as to affect strategic roads

171.     Section 62 amends section 301A of the Highways Act 1980. That section currently provides that a London borough council proposing to carry out highway work which will affect or is likely to affect a GLA road or a road in another London borough must notify TfL and, where the road is in another borough, the council of that borough as well. TfL or another borough may object to the borough undertaking the work. Where TfL or another borough objects, the GLA can give consent to the work after consideration of the objection. This section amends section 301A so that its provisions apply to strategic roads as they apply to GLA roads and roads in another London borough.

Section 63: London borough council exercising powers under Road Traffic Regulation Act 1984 so as to affect strategic roads

172.     Section 63 amends section 121B of the Road Traffic Regulation Act 1984. That section currently provides that a London borough council proposing to exercise road traffic powers which affect a GLA road or a road in another London borough must notify TfL and, where the road is in another borough, the council of that borough as well. TfL or another borough may object to the borough exercising the power. Where TfL or another borough objects, the GLA can give consent to the work after consideration of the objection. This section amends section 121B so that its provisions apply to strategic roads as they apply to GLA roads and roads in another London borough.

Section 64 and Schedules 5 and 6: Fixed penalty offences under the Highways Act 1980

173.     Section 64 provides for fixed penalties for certain offences under the Highways Act 1980. The potential offences are listed at Schedule 5 to the Act, which inserts a new Schedule 22A to the Highways Act 1980. To be a fixed penalty offence, it must also be prescribed by the Secretary of State in regulations. The regulations may make provision for Greater London different from that in the rest of England. The details of how the system will operate are contained in Schedule 6 to the Act, which inserts a new Schedule 22B into the Highways Act 1980. The new Schedule 22B, among other things, enables regulations to make different provision for different purposes or areas, including with respect to the level of penalty. Section 64 also makes amendments to the London Local Authorities and Transport for London Act 2003. These provide that where London borough councils or Transport for London set the level of penalty for specific fixed penalty offences in the 2003 Act, the Secretary of State can make further regulations increasing the level of those penalties, in cases where the offences are also fixed penalty offences by virtue of this Act.

Section 65: Duty of local highway authority to keep records of objects in highway

174.     Section 65 enables the Secretary of State (in England), or the National Assembly for Wales (in Wales), to make regulations imposing a duty upon a local highway authority to make and keep a record of the location of any object of a description prescribed in the regulations which is placed by that authority in the street. The regulations may also make provision as to the form of the records, and supplementary information to be included in the record, and may require a authorities to make their records available for inspection.

Section 66: Builders' skips: charge for occupation of the highway for unreasonable period

175.     Sections 139 and 140 of the Highways Act 1980 set out arrangements for controlling the placing and removal of builders' skips in the highway.

176.     Section 74 of NRSWA enables the Secretary of State to make regulations imposing a charge on undertakers where street works in a maintainable highway overrun a reasonable period. Section 74 was amended (by section 256 of the Transport Act 2000) so as to widen the regulation making power (in particular as regards the service of notices).

177.     Schedule 8 to the NRSWA amended the Highways Act 1980 to insert section 140A of the Highways Act 1980. Section 140A has not been brought into force. Section 140A makes provision for similar arrangements to be made in respect of builders' skips as are provided in respect of street works under section 74 of the NRSWA (prior to its amendment by the Transport Act 2000).

178.     Section 66 substitutes a new section 140A into the Highways Act 1980, to provide for a widening of the regulation making powers in respect of builders' skips. The new section 140A is reasonably similar to section 74 of NRSWA as amended by the Transport Act 2000.

179.     The new section 140A(1) provides that the Secretary of State may make provision by regulations requiring the owner of a builder's skip deposited on a maintainable highway to pay a charge to the highway authority in cases where the period of the occupation of the highway exceeds such period as may be prescribed by the Secretary of State in regulations and a reasonable period.

180.     The new section 140A(2) provides that a reasonable period means a period agreed between the owner of the skip and the authority or, if agreement cannot be reached, a period determined by arbitration.

181.     The new section 140A(9) enables regulations made under the inserted section to provide that the authority are to set the rate of charge, up to a prescribed maximum, and that different rates of charge may be set according to such factors as the highway authority considers relevant.

182.     The new section 140A(15) enables the regulations to make provision in respect of the application by authorities of the sums paid by way of charges, and for the publication and the keeping of accounts of sums paid by way of charges.

183.     The new section 140A(16) provides that the regulations may create a level 4 offence (attracting a maximum fine of £2,500) where the relevant person fails to give a notice, or to provide information, in accordance with the regulations.

184.     The new section 140A(17) enables the regulations to prescribe that where a skip is the subject of hiring agreement or hire purchase agreement of a type prescribed in the regulations, it is the person in possession of the skip that is subject to the requirements of the regulations.

185.     The new section 140A(18) enables the regulations to make provision in relation to the deposit of a series of skips, rather than just a single one.

186.     The new section 140A(19) enables the regulations to provide that such a series of skips may be treated as a single skip (for instance if a skip was deposited and then removed several times as it became full up).