Office of Public Sector Information
PART 2 continued
(1) In section 131 of the 1991 Act (powers of road works authority in relation to reinstatement of roads)—
(a) in subsection (3), for “of not less than 7 working days” there is substituted “, not being shorter than such period as may be prescribed,”; and
(b) after that subsection there is inserted—
“(3A) Different minimum periods may be prescribed under subsection (3) for different descriptions of remedial works; and cases may be so prescribed in which no minimum period applies.”.
(2) In section 149 of the 1991 Act (which, among other things, enables the authorities responsible for sewers, drains and tunnels to require their reinstatement)—
(a) in subsection (2), for “of not less than 7 working days” there is substituted “, not being shorter than such period as may be prescribed,”; and
(b) after that subsection there is inserted—
“(2A) Different minimum periods may be prescribed under subsection (2) for different descriptions of remedial works; and cases may be so prescribed in which no minimum period applies.”.
(1) After section 132 of the 1991 Act there is inserted—
(1) In prescribed circumstances, the road works authority may by notice (a “resurfacing notice”) require an undertaker within subsection (2) to execute such resurfacing works in a road as may be specified in the notice.
(2) An undertaker is within this subsection if—
(a) he has given notice under section 113 or 114 of proposed road works,
(b) he is executing road works, or
(c) he has, within such period ending with the giving of the notice as may be prescribed (or if no period is prescribed, at any time), executed road works,
and the works will involve, involve or (as the case may be) involved the breaking up of any part of the road.
(3) The works specified in the resurfacing notice may relate to any part of the road (including any part not, and not to be, broken up by the undertaker); but regulations made by the Scottish Ministers may restrict the extent of the works that may be so specified.
(4) The resurfacing notice relieves the undertaker to the extent (if any) specified in the notice of his duty under section 129 to reinstate the surface of the road; but regulations made by the Scottish Ministers may restrict the circumstances in which and the extent to which undertakers may be relieved of that duty.
(5) The road works authority may by notice to the undertaker vary or withdraw a resurfacing notice; but regulations made by the Scottish Ministers may restrict the circumstances in which notices may be varied or withdrawn.
(6) A road works 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.
(7) In this Part—
“resurfacing notice” has the meaning given by subsection (1),
“resurfacing works” means any works relating to the replacement of the surface of any part of a road,
“surface” includes a paved surface.
(1) A resurfacing notice may require an undertaker to—
(a) execute the works specified in the notice in stages so specified,
(b) begin the execution of those works (or any stage of them) at or by a date and time so specified,
(c) execute those works (or any stage of them) at times or on days (or at times on days) so specified,
(d) complete the execution of those works (or any stage of them) by a date and time so specified.
(2) The Scottish Ministers may by regulations make provision restricting, in some or all cases, the power to include requirements within subsection (1), including provision that—
(a) requires a road works authority to consult an undertaker before a prescribed description of requirement is included in a notice,
(b) provides that any date specified in a notice for the beginning, execution or completion of works shall not be earlier than a prescribed period from the date on which the notice is given.
(1) An undertaker who has been served with a resurfacing 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) The undertaker shall also ensure that, for the prescribed period after completion of the works, those works conform to such performance standards as may be prescribed.”.
(2) In section 165 of that Act (index for Part 4)—
(a) after the entry for “relevant authority (in relation to road works)” there is inserted—
| “resurfacing notice | section 132A(7) |
| resurfacing notice | section 132A(7)”; |
(b) after the entry for statutory right there is inserted—
| “surface | section 132A(7)”. |
After section 132C of the 1991 Act (as inserted by section 30 above) there is inserted—
(1) The Scottish Ministers shall make regulations supplementing sections 132A to 132C.
(2) The regulations may, in particular—
(a) make provision about the information to be contained in a resurfacing notice (including the way in which resurfacing works are to be described),
(b) prescribe, for cases where a resurfacing notice may be served on more than one undertaker, the matters that a road works authority shall take into account when selecting the undertaker to be served with the notice,
(c) impose a requirement on an undertaker, in prescribed circumstances, to give notice to the road works authority of a prescribed event,
(d) prescribe circumstances in which an undertaker is entitled to pay a sum to the road works authority instead of executing the works specified in a resurfacing notice, and make provision about the manner in which such sums are to be calculated,
(e) confer a right of review or appeal against a resurfacing notice or any requirement contained in it, and 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 132A(1)) to be determined in such manner and by such persons as may be prescribed,
(g) apply, with or without modifications, any provisions of this Part or of the Roads (Scotland) Act 1984 (c. 54) in relation to works specified in a resurfacing notice (and provide that for those purposes the works are to be treated as road works or works of any other description).
(3) The regulations may create, in respect of any breach of a requirement imposed by a resurfacing notice or of a duty imposed by section 132C, 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.
(4) The first regulations for the purposes of each of this section and sections 132A to 132C shall not be made unless a draft of them has been laid before and approved by a resolution of the Scottish Parliament; subsequent regulations shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
(1) The Scottish Ministers shall, for the purposes of sections 132A to 132D (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, road works authorities and undertakers shall have regard to the code of practice.”.
(1) After section 137 of the 1991 Act there is inserted—
(1) Where a road works authority have given a resurfacing notice to an undertaker—
(a) the authority shall pay to the undertaker a proportion, calculated in the prescribed manner, of the costs reasonably incurred by the undertaker in executing the works specified in the notice,
(b) an undertaker to whom subsection (2) applies shall pay to the undertaker referred to in paragraph (a) a proportion, calculated in the prescribed manner, of those costs.
(2) This subsection applies to an undertaker if—
(a) the undertaker has, before the completion of the works specified in the notice, executed road works which involved the breaking up of any part of a road, and
(b) the works specified in the notice include the resurfacing of that part of the road.
(3) The Scottish Ministers 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, as may be prescribed.
(5) The Scottish Ministers may by regulations make provision 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 road works 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 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 the Scottish Parliament; subsequent regulations shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.”.
(2) In section 155 of the 1991 Act, in subsection (3), after “road)” there is inserted “or 137A (contributions to costs of resurfacing by undertakers)”.
(1) The maximum fine for each offence under a provision of the 1991 Act listed in column 1 of the table in schedule 3 is increased from level 3 on the standard scale to the level specified for that provision in column 3 of the table.
(2) Accordingly, in each provision so listed, for “level 3” there is substituted “level 4” or “level 5” (as specified in column 3 of the table).
(1) After section 154 of the 1991 Act there is inserted—
(1) Any offence under this Part relating to road works which is listed in the first column of Schedule 6A (and described in general terms in the second column) is a fixed penalty offence for the purposes of this Part.
(2) Offences listed in that Schedule which are committed by virtue of section 166 (offences by bodies corporate and partnerships) are not fixed penalty offences.
(3) The Scottish Ministers may by order made by statutory instrument modify that Schedule so as to provide for offences under this Part relating to road works to become (or cease to be) fixed penalty offences.
(4) No such order shall be made unless a draft of the statutory instrument containing it has been laid before and approved by resolution of the Scottish Parliament.
(5) Schedule 6B (which makes provision about fixed penalties for fixed penalty offences) has effect.”.
(2) In section 165 of that Act (index for Part 4), after the entry for “expenses” there is inserted—
| “fixed penalty offence | section 154A(1)”. |
(3) After Schedule 6 to that Act there are inserted Schedules 6A and 6B as set out in schedules 4 and 5 to this Act.
After section 154A of the 1991 Act (as inserted by section 34 above) there is inserted—
(1) The Scottish Ministers may, by regulations, make provision for or in connection with—
(a) the imposition by road works authorities of penalty charges in respect of such offences under this Part of this Act as are specified in the regulations,
(b) the payment of such charges.
(2) The regulations shall include provision specifying the person or persons by whom a penalty charge in respect of an offence is to be paid (who may be or, as the case may be, include a person other than the person who committed the offence).
(3) The regulations shall include provision—
(a) prohibiting criminal proceedings or the giving of a fixed penalty notice in respect of any description of conduct for which a penalty charge may be imposed, or
(b) securing that a penalty charge is not payable or is refunded where the conduct is the subject of criminal proceedings or of a fixed penalty notice.
(4) The regulations shall include provision about the standard of proof required to establish the commission of an offence in respect of which a penalty charge may be imposed and may include other provision for or in connection with evidence and procedure.
(5) The regulations may set different levels of penalty charges in respect of different offences and in respect of the same offences committed in different circumstances.
(6) The regulations may include provision for and in connection with—
(a) the notification of penalty charges to persons appearing to be liable to pay them,
(b) the enabling and effect of the making of representations to road works authorities by persons who are or may be liable to pay those charges,
(c) appeals by those persons against the imposition of those charges.
(7) Regulations shall not be made unless a draft of them has been laid before and approved by resolution of the Scottish Parliament.”.
(1) In each of the provisions of the 1991 Act mentioned in subsection (2) below, for “by arbitration” there is substituted “in the prescribed manner”.
(2) Those provisions are—
(a) section 117(7) (consent to contravene restriction on works following substantial road works);
(b) section 120(6) (protected roads: consent as to placing of apparatus);
(c) section 121(5) (exercise of powers in relation to protected roads);
(d) section 133(2) (meaning of “reasonable period” for the purposes of charges for prolonged road works);
(e) section 143(3) (measures necessary where apparatus affected by major works);
(f) section 155(3) (disputes about costs and expenses); and
(g) in Schedule 6 (roads with special engineering difficulties), paragraph 2(1).
(3) In section 143(4) of the 1991 Act (failure to comply with agreement or decision)—
(a) for “of the arbiter” there is substituted “made”; and
(b) after “subsection (3)” there is inserted “in settlement of a dispute”.
(4) After section 157 of the 1991 Act (reckoning of time periods) there is inserted—
Regulations under this Part prescribing the manner in which any question or dispute is to be settled may in particular make provision for the question or, as the case may be, dispute to be settled—
(a) by the Commissioner, or
(b) by arbitration.”.
(5) In Schedule 6 (roads with special engineering difficulties)—
(a) in paragraph 10(1), for “arbiter” to “arbitration” there is substituted “person to whom it falls, by virtue of regulations made under paragraph 2(1), to settle a dispute under that paragraph”; and
(b) in paragraph 12—
(i) in sub-paragraph (2), for “arbitration” there is substituted “be settled in the prescribed manner”;
(ii) in sub-paragraph (3), for “arbiter” there is substituted “person to whom it falls to settle the matter”; and
(iii) in sub-paragraph (4), for “the arbiter” there is substituted “that person”.
(1) After section 130 of the Roads (Scotland) Act 1984 (c. 54) there is inserted—
(1) Any offence under this Act which is listed in the first column of Schedule 8A to this Act (and described in general terms in the second column) is a fixed penalty offence for the purposes of this Act.
(2) Offences listed in that Schedule which are committed by virtue of section 130 of this Act (offences committed by bodies corporate, etc.) are not fixed penalty offences.
(3) The Scottish Ministers may, by order, modify that Schedule so as to provide that an offence is to cease to be a fixed penalty offence.
(4) Schedule 8B to this Act (which makes provision about fixed penalties for fixed penalty offences) has effect.
(5) An order under subsection (3) above may make transitional provision.”.
(2) In section 143 of that Act (which includes provision as to orders under the Act), in subsection (2)(b)(ii), after “section” there is inserted “130A or”.
(3) After Schedule 8 to that Act there are inserted Schedules 8A and 8B as set out in schedules 6 and 7 to this Act.
(4) In section 156 of the 1991 Act (service of notices etc.) after subsection (2) there is inserted—
“(3) References in this section to notices authorised to be given or served for the purposes of this Part include reference to notices under Schedule 8B to the Roads (Scotland) Act 1984 (c. 54) (fixed penalties for certain offences under that Act).”.
(1) After section 130A of the Roads (Scotland) Act 1984 (as inserted by section 37 above) there is inserted—
(1) The Scottish Ministers may, by regulations, make provision for or in connection with—
(a) the imposition by roads authorities of penalty charges in respect of the offences which, under section 130A of this Act, are fixed penalty offences;
(b) the payment of such charges.
(2) The regulations shall include provision specifying the person or persons by whom a penalty charge in respect of an offence is to be paid (who may be or, as the case may be, include a person other than the person who committed the offence).
(3) The regulations shall include provision—
(a) prohibiting criminal proceedings or the giving of a fixed penalty notice in respect of any description of conduct for which a penalty charge may be imposed; or
(b) securing that a penalty charge is not payable or is refunded where the conduct is the subject of criminal proceedings or of a fixed penalty notice.
(4) The regulations shall include provision about the standard of proof required to establish the commission of an offence in respect of which a penalty charge may be imposed and may include other provision for or in connection with evidence and procedure.
(5) The regulations may set different levels of penalty charges in respect of different offences and in respect of the same offences committed in different circumstances.
(6) The regulations may include provision for and in connection with—
(a) the notification of penalty charges to persons appearing to be liable to pay them;
(b) the enabling and effect of the making of representations to roads authorities by persons who are or may be liable to pay those charges;
(c) appeals by those persons against the imposition of those charges.”.
(2) In section 143 of that Act (which includes provision as to regulations under the Act), in subsection (2)(b)(i) after “17” there is inserted “or 130B”.
After section 163 of the 1991 Act there is inserted the following section—
(1) Before—
(a) making, amending or revoking regulations under or for the purposes of any provision of this Part, or
(b) issuing, amending or revoking a code of practice under or for the purposes of any such provision or approving any such code of practice or its amendment or revocation,
the Scottish Ministers shall consult the persons and authorities set out in subsection (2).
(2) Those persons and authorities are such—
(a) persons considered by the Scottish Ministers to be representative of the interests of undertakers,
(b) road works authorities,
(c) other persons,
as the Scottish Ministers think appropriate.”.
Transport (Scotland) Act 2005