Office of Public Sector Information

73C Materials, workmanship and standard of re-surfacing

(1) An undertaker who has been given a re-surfacing notice shall, when executing the works specified in the notice, 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 new surface conforms to such performance standards as may be prescribed, for the prescribed period after completion of the works.”

(2) In section 106 of that Act—

(a) after the entry for relevant authority (in relation to street works) there is inserted—

(b) after the entry for street works licence there is inserted—

56 Re-surfacing: regulations and guidance

After section 73C of the 1991 Act there is inserted—

“73D Re-surfacing: regulations

(1) The Secretary of State may make regulations supplementing sections 73A to 73C.

(2) The regulations may in particular—

(a) make provision about the information to be contained in a re-surfacing notice (including the way in which re-surfacing works are to be described);

(b) prescribe, for cases where a re-surfacing notice may be given to more than one undertaker, the matters that a street authority shall take into account when selecting the undertaker to whom the notice is to be given;

(c) impose a requirement on an undertaker, in prescribed circumstances, to give notice to the street authority of a prescribed event;

(d) prescribe circumstances in which an undertaker may elect to make a payment to the street authority instead of executing the works specified in a re-surfacing notice, and make provision about the calculation of the amount of such payments;

(e) confer a right of review or appeal against a re-surfacing notice or any requirement contained in it, and may make provision about the period within which and manner in which any such right may be exercised and about the determination of appeals and the persons who may determine them;

(f) require disputes of a prescribed description (including disputes as to the existence of circumstances prescribed under section 73A(1)) to be determined in such manner and by such persons as may be prescribed;

(g) apply any provisions of this Part or the Highways Act 1980 (c. 66), with or without modifications, in relation to works specified in a re-surfacing notice (and provide that for those purposes the works are to be treated as street works or works of any other description).

(3) The regulations may provide that where a re-surfacing notice has been served on an undertaker, the street authority may (in such circumstances and to such extent as may be prescribed) by notice relieve any other undertaker within section 73A(2) of his duty under section 70 to reinstate the surface of the street.

(4) The regulations may create in respect of any breach of a requirement imposed by a re-surfacing notice or of the duty imposed by section 73C, or any contravention of the regulations, an offence punishable on summary conviction—

(a) where the offence consists of a failure to give a notice in accordance with the regulations, with a fine not exceeding level 4 on the standard scale;

(b) in any other case, with a fine not exceeding level 5 on the standard scale.

(5) The first regulations under this section or any of sections 73A to 73C 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.

73E Re-surfacing: guidance

(1) The Secretary of State may, for the purposes of sections 73A to 73D (including regulations under those sections), issue or approve a code of practice giving practical guidance as to the exercise of powers and the discharge of duties under those sections.

(2) In exercising those powers and in discharging those duties, street authorities and undertakers shall have regard to the code of practice.”

57 Contributions to costs of re-surfacing by undertaker

(1) After section 78 of the 1991 Act there is inserted—

“78A Contributions to costs of re-surfacing by undertaker

(1) Where a street authority has given a re-surfacing notice to an undertaker (A)—

(a) the authority shall pay to A a proportion, calculated in the prescribed manner, of the costs reasonably incurred by A in executing the works specified in the notice;

(b) an undertaker to whom subsection (2) applies shall pay to A a proportion, calculated in the prescribed manner, of those costs.

(2) This subsection applies to an undertaker if—

(a) he has, after the commencement of this section (whether or not regulations under it have been made) and before the completion of the works specified in the notice, executed street works which involved the breaking up of any part of a street, and

(b) the works specified in the notice include the re-surfacing of that part of the street.

(3) The Secretary of State may by regulations prescribe exceptions to the duty imposed by subsection (1)(b).

(4) The payments referred to in subsection (1) shall be made in such instalments and manner, and within such period of such event, as may be prescribed.

(5) The Secretary of State may by regulations make provision—

(a) requiring a street authority, within such period of such event as may be prescribed, to give to an undertaker to whom subsection (2) applies a notice containing such information as may be prescribed;

(b) requiring a street authority to pay to an undertaker to whom it has given a re-surfacing notice such sum as he has been unable to recover under subsection (1)(b) on account of the insolvency of an undertaker;

(c) requiring disputes of a prescribed description (including disputes as to whether subsection (2) applies to an undertaker) to be determined in such manner and by such persons as may be prescribed.

(6) For the purposes of this section, any costs incurred by an undertaker (including any costs of a street authority which are borne by the undertaker) in consequence of a failure by the undertaker to comply with any duty under this Part shall be treated as having been incurred unreasonably.

(7) The Secretary of State may by regulations make provision requiring undertakers to make payments to a street authority where—

(a) the authority has given a re-surfacing notice to an undertaker,

(b) that undertaker has exercised a right, conferred by regulations under section 73D, of the sort mentioned in subsection (2)(d) of that section, and

(c) the authority has carried out any of the works specified in the notice.

(8) The power in subsection (7) includes power to make provision corresponding to provision that may be made under subsections (1) to (5).

(9) Regulations under this section may make different provision for cases where an undertaker mentioned in subsection (1) or (7) has made, or is liable to make, a payment under section 78.

(10) 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.

(11) In subsection (5)(b) “insolvency”—

(a) in relation to a company, has the meaning given by section 247(1) of the Insolvency Act 1986;

(b) in relation to an individual, includes the approval of a voluntary arrangement under Part 8 of that Act.”

(2) In section 96 of the 1991 Act, in subsection (3), after “street)” there is inserted “or 78A (contributions to costs of re-surfacing by undertakers)”.

58 Inspection fees

(1) In section 72 of the 1991 Act (powers of street authority in relation to reinstatement) after subsection (2) there is inserted—

“(2A) The Secretary of State may prescribe a fee in respect of a prescribed description of inspection mentioned in subsection (2).

If he does so that subsection has effect, in relation to that description of inspection, as if for “he shall bear the cost of” there were substituted “he shall pay the prescribed fee in respect of”.

(2B) The power to make different provision under subsection (2A) for different cases includes power—

(a) to make different provision for different descriptions of street authority or undertakers;

(b) to prescribe different fees by reference to the nature or extent of the inspection, the place where it is carried out and such other factors as appear to the Secretary of State to be relevant.”

(2) For section 75 of that Act (inspection fees) there is substituted—

“75 Inspection fees

(1) The Secretary of State may make provision by regulations requiring an undertaker to pay to the street authority the prescribed fee in respect of—

(a) all inspections carried out by the authority of his street works; or

(b) such inspections of those works as may be prescribed.

(2) The regulations may—

(a) require undertakers to make payments in respect of inspections anticipated to take place within a prescribed period; and

(b) make provision for the striking of an account between an undertaker and a street authority and the making of any necessary payment or repayment.

(3) The power to make different provision under this section for different cases includes power—

(a) to make different provision for different descriptions of street authority or different descriptions of undertakers (including descriptions framed by reference to their previous performance);

(b) to prescribe different fees by reference 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.

(4) The reference in subsection (3)(a) to the previous performance of an undertaker is to the performance of the undertaker, during such period as may be prescribed, as respects such description of his duties under this Part as may be prescribed.

(5) The regulations may require disputes of any prescribed description to be determined by arbitration.

(6) Nothing in this section applies to inspections in respect of which the undertaker is obliged to bear the cost, or pay the prescribed fee, under section 72(2) (inspections consequent on failure to comply with duties as to reinstatement).”

59 Guidance about inspections

After section 73E of the 1991 Act (as inserted by section 56 above) there is inserted—

“Inspections

73F Guidance about street authority inspections

(1) The Secretary of State may issue or approve guidance to street authorities about any matter relating to the exercise by them of any power to carry out inspections of street works.

(2) In exercising their powers to carry out such inspections a street authority shall have regard to any guidance issued or approved under this section.

(3) In this section any reference to inspections includes the carrying out of investigatory works.”