17. After Article 33E of the 1995 Order there is inserted—
33F.—(1) The Department 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 street authorities shall have regard to any guidance issued or approved under this Article.
(3) In this Article any reference to inspections includes the carrying out of investigatory works.”.
18.—(1) Article 34 of the 1995 Order (charges where works unreasonably prolonged) is amended as follows.
(2) After paragraph (2) insert—
“(2A) The regulations may prescribe exemptions from the requirement to pay charges.”.
(3) In paragraph (3)—
(a) for “may submit to the Department” substitute “shall give to the Department, in such manner as may be prescribed, notice containing”, and
(b) for “so submitted” substitute “contained in a notice given to the Department in such manner”.
(4) In paragraph (4), for “may submit” substitute “shall give to the Department, in such manner as may be prescribed, notice containing”.
(5) After paragraph (5) insert—
“(5A) The regulations may—
(a) prescribe more than one rate of charge in respect of the same description of works, and
(b) provide that charges are to be paid in respect of any works of that description at the rate which appears to the Department to be appropriate in relation to those works.
(5B) The regulations may—
(a) make provision for the determination of the duration of works for the purposes of the regulations;
(b) in particular, make provision for works to be treated as beginning or ending on the giving of, or as stated in, a notice given by the undertaker to the Department, in the prescribed manner, in accordance with a requirement imposed by the regulations.”.
(6) In paragraph (7), for the words from “a charge” to the end substitute
“charges—
in any particular case,
in such classes of case as it may decide or as may be prescribed, or
in all cases or in all cases other than a particular case or such class of case as it may decide or as may be prescribed.”.
(7) After that paragraph insert—
“(7A) The regulations may create in respect of any failure to give a notice required by the regulations a criminal offence triable summarily and punishable with a fine not exceeding level 4 on the standard scale.”.
19. In the 1995 Order, after Article 34 insert—
34A.—(1) The Department may make provision by regulations requiring an undertaker executing street works in a road to pay to the Department a charge determined, in the prescribed manner, by reference to the duration of the works.
(2) The regulations may prescribe exemptions from the requirement to pay charges.
(3) The regulations may prescribe different rates of charge according to—
(a) the extent to which the surface of the road is affected by the works,
(b) the place and time at which the works are executed, and
(c) such other factors as appear to the Department to be relevant.
(4) The regulations may—
(a) prescribe more than one rate of charge in respect of the same description of works, and
(b) provide that charges are to be paid in respect of any works of that description at the rate which appears to the Department to be appropriate in relation to those works.
(5) The regulations—
(a) may make provision for the determination of the duration of works for the purposes of the regulations; and
(b) in particular, make provision for works to be treated as beginning or ending on the giving of, or as stated in, a notice given by the undertaker to the Department, in the prescribed manner, in accordance with a requirement imposed by the regulations.
(6) The regulations may make provision as to the time and manner of making payment of charges.
(7) The regulations shall provide that the Department may reduce the amount, or waive payment, of a charge—
(a) in any particular case,
(b) in such classes of case as it may decide or as may be prescribed, or
(c) in all cases or in all cases other than a particular case or such class of case as it may decide or as may be prescribed.
(8) The regulations may create in respect of any failure to give a notice required by the regulations a criminal offence triable summarily and punishable with a fine not exceeding level 4 on the standard scale.
(9) The regulations may require disputes of any prescribed description to be referred to an arbitrator appointed in accordance with the regulations.
(10) The first regulations under this Article shall not be made unless a draft of them has been laid before and approved by a resolution of the Assembly.
(11) Nothing shall be taken to prevent the imposition of charges by both regulations under Article 34 and regulations under this Article in respect of the execution of the same works at the same time.”.
20. For Article 35 of the 1995 Order (inspection fees) there is substituted—
35.—(1) The Department 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 Article 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 Department to be relevant.
(4) The reference in paragraph (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 Order as may be prescribed.
(5) The regulations may require disputes of any prescribed description to be determined by arbitration.
(6) Nothing in this Article applies to inspections in respect of which the undertaker is obliged to bear the cost, or pay the prescribed fee, under Article 32(2) (inspections consequent on failure to comply with duties as to reinstatement).”.
21.—(1) After Article 38 of the 1995 Order there is inserted—
38A.—(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 paragraph (2) applies shall pay to A a proportion, calculated in the prescribed manner, of those costs.
(2) This paragraph applies to an undertaker if—
(a) he has, after the commencement of this Article (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 Department may by regulations prescribe exceptions to the duty imposed by paragraph (1)(b).
(4) The payments referred to in paragraph (1) shall be made in such instalments and manner, and within such period of such event, as may be prescribed.
(5) The Department 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 paragraph (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 paragraph (1)(b) on account of the insolvency of an undertaker;
(c) requiring disputes of a prescribed description (including disputes as to whether paragraph (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 Article, 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 Order shall be treated as having been incurred unreasonably.
(7) The Department 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 Article 33D, of the sort mentioned in paragraph (2)(d) of that Article, and
(c) the authority has carried out any of the works specified in the notice.
(8) The power in paragraph (7) includes power to make provision corresponding to provision that may be made under paragraphs (1) to (5).
(9) The first regulations under this Article shall not be made unless a draft of them has been laid before and approved by a resolution of the Assembly.
(10) In paragraph (5)(b) “insolvency”—
(a) in relation to a company, has the meaning given by Article 6(1) of the Insolvency (Northern Ireland) Order 1989 (NI 19);
(b) in relation to an individual, includes the approval of a voluntary arrangement under Part VIII of that Order.”.
(2) In Article 53 of the 1995 Order (recovery of costs and expenses), in paragraph (3), after “street)” there is inserted “or Article 38A (contributions to costs of re-surfacing by undertakers)”.
22.—(1) Article 39 of the 1995 Order (records of location of apparatus) is amended as follows.
(2) After paragraph (1) there is inserted—
“(1A) An undertaker may, except in such cases as may be prescribed, include in his records under paragraph (1) a record of the location of any item of apparatus belonging to him which is not required to be so included, stating the nature of the apparatus and (if known) whether it is for the time being in use.”.
(3) After paragraph (2) there is inserted—
“(2A) Regulations under paragraph (2) which alter the form or manner in which the records are to be kept may apply to records made before (as well as records made after) the alterations take effect.”.
(4) After paragraph (3) there is inserted—
“(3A) In paragraphs (2) to (3) the references to an undertaker’s records are to the records kept by him under paragraph (1) (including anything included in those records by virtue of any provision of this Order or any other statutory provision).”.
23.—(1) Article 40 of the 1995 Order (duties where person finds unidentified apparatus) is amended as follows.
(2) In paragraph (1) for “made available by the undertaker” there is substituted “kept by the undertaker under Article 39(1) and made available by him”.
(3) After paragraph (1) there is inserted—
“(1A) Paragraph (1) has effect subject to such exceptions as may be prescribed.”.
(4) For paragraphs (2) and (3) there is substituted—
“(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 comply with such requirements (if any) as may be prescribed for the purpose of securing that he—
(a) makes and keeps a record of the location of the apparatus and (so far as appears from external inspection) its nature and whether it is in use; and
(b) informs the street authority or any other person of those matters.
(2A) Regulations under paragraph (2) may make provision—
(a) as to the form and manner in which records are to be kept;
(b) as to the form and manner in which, or the time at or by which, information is to be given; and
(c) for records which are to be kept by undertakers to be included in the records kept by them under Article 39(1).”.
(5) In paragraph (4) for “(2)” there is substituted “any requirement imposed on him by regulations under paragraph (2)”.
(6) After paragraph (4) there is added—
“(5) The Department may by regulations make provision for and in connection with the keeping by the Department of a register of information recorded by undertakers in pursuance of a requirement imposed under paragraph (2).
(6) Regulations under paragraph (5) may make provision about the inspection of the register by any person having authority to execute works of any description in the street or otherwise appearing to the Department to have a sufficient interest.”.
24.—(1) After Article 52 of the 1995 Order (offences) there is inserted—
52A—(1) Any offence under this Order relating to any street works which is listed in paragraph (3) is a fixed penalty offence for the purposes of this Order.
(2) Offences listed in that paragraph which are committed by virtue of section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) (offences by bodies corporate) are not fixed penalty offences.
(3) The offences are—
(a) an offence under Article 14(4) (failure to comply with duties under Art. 14 (advance notice of certain works, etc.));
(b) an offence under Article 15(5) (beginning to execute works in contravention of Art. 15 (notice of starting date));
(c) an offence under Article 15(9) (failure to give notice in accordance with Art. 15(8) (notice to be given on Art. 15 notice ceasing to have effect));
(d) an offence under Article 17(4) (failure to give notice in accordance with Art. 17 (notice of emergency works));
(e) an offence under Article 30(6) consisting of a failure to comply with paragraph (3) or (4A) (failure to comply with requirements to give notice of completion of reinstatement);
(f) an offence created by regulations made under Article 34(7A) (failure to give a notice required by regulations under Art. 34 (charge for occupation of the road where works unreasonably delayed));
(g) an offence created by regulations made under Article 34A(8) (failure to give a notice required by regulations under Art. 34A (charge determined by reference to duration of works)).”.
(4) The Department may by order modify paragraph (3) so as to provide for offences under this Order relating to any street works to become (or cease to be) fixed penalty offences.
(5) Such an order may not be made unless a draft of the order has been laid before and approved by resolution of the Assembly.
(6) Schedule 2A (which makes provision about fixed penalties for fixed penalty offences) has effect.”.
(2) After Schedule 2 to that Order there is inserted Schedule 2A as set out in Schedule 2 to this Order.
25.—(1) The maximum fine for an offence under each of the following provisions of the 1995 Order is increased from level 3 on the standard scale to level 4 on that scale and accordingly in each of those provisions for “level 3” there is substituted “level 4”—
(a) Article 14(4) (failure to comply with duties under Art. 14 (advance notice of certain works, etc.));
(b) Article 15(5) (beginning to execute works in contravention of Art. 15 (notice of starting date of works));
(c) Article 17(4) (failure to give notice in accordance with Art. 17 (notice of emergency works));
(d) Article 28(2) (failure by undertaker to afford street authority with reasonable facilities for ascertaining whether he is complying with his duties under the Order);
(e) Article 29(2) (failure to comply with Art. 29(1) (requirements relating to street works likely to affect another person’s apparatus in the street));
(f) Article 40(4) (failure to comply with Art. 40(1) (duty to inform other undertaker of location of certain apparatus) or requirements imposed under Art. 40(2) (duties applicable where ownership of certain apparatus cannot be ascertained));
(g) Article 43(3) (failure by authority to comply with Art. 43(2) (requirements relating to certain road works likely to affect apparatus in the street));
(h) Schedule 1, paragraph 5(3) (failure to comply with obligation under paragraph 5 (obligations to give notice to street authority)).
(2) The maximum fine for an offence under each of the following provisions of the 1995 Order is increased from level 3 on the standard scale to level 5 on that scale and accordingly in each of those provisions for “level 3” there is substituted “level 5”—
(a) Article 12(2) (offence under Art. 12(1) (prohibition of unauthorised street works);
(b) Article 16(3) (execution of works in contravention of direction under Art. 16 (directions as to timing of street works));
(c) Article 18(6)(a) (carrying out works in contravention of a restriction imposed under Art. 18 (restriction on works following substantial road works));
(d) Article 20(3) (failure to comply with duty under Art. 20(1) (general duty of undertakers to co-operate));
(e) Article 25(4) (failure to comply with Art. 25(1) or (2) (safety measures));
(f) Article 25(6) (interference with safety measures taken by undertaker);
(g) Article 26(2) (failure to comply with Art. 26(1) (duty to carry on and complete certain street works with all reasonably practicable dispatch));
(h) Article 27(3) (failure to comply with Art. 27(1), (2) or (2C) (duties relating to the use of qualified supervisors and operatives));
(i) Article 31(4) (failure to comply with duties under Art. 31 (prescribed requirements as to materials and workmanship and performance standards for reinstatements));
(j) Article 39(4) (failure to comply with duties under Art. 39(1) to (3) (records of location of apparatus));
(k) Article 50(2) (failure to comply with a special requirement as to the displaying of lights imposed by a transport authority under Art. 50(1));
(l) Schedule 2, paragraph 6 (execution of works in street with special engineering difficulties in contravention of paragraph 2 (requirement for agreed plan and section before executing works) or paragraph 3 (requirement to furnish plan and section after emergency works));
(m) Schedule 2, paragraph 12(5) (failure to execute works in such a street in accordance with a direction under paragraph 12);
(n) Schedule 2, paragraph 13(2) (failure to comply with paragraph 13(1) (requirement to execute works in such a street in accordance with plan or agreed modification)).
(3) In Article 30(6) of the 1995 Order (failure to comply with Art.30 (duty to reinstate)) for the words from “to a” to the end there is substituted—
“(a) in the case of an offence consisting of a failure to comply with paragraph (3) or (4A), to a fine not exceeding level 4 on the standard scale; and
(b) in any other case, to a fine not exceeding level 5 on that scale.”.
(4) In Article 47(3) of the 1995 Order (failure to comply with duties relating to street works affecting the structure of a bridge) for the words from “to a” to the end there is substituted—
“(a) in the case of an offence consisting of a failure to take all reasonably practicable steps to comply with paragraph (2)(a), to a fine not exceeding level 4 on the standard scale; and
(b) in any other case, to a fine not exceeding level 5 on that scale.”.
(5) This Article does not have effect in relation to an offence committed before it comes into operation.
26. In the 1995 Order after Article 55 there is inserted—
55A. The Department may cause an inquiry to be held in relation to the exercise of any of its functions under this Order.”.
27. In the 1995 Order after Article 56 there is inserted—
56A.—(1) Any function of the Department under this Order (other than a power or duty to make regulations or an order) may be exercised by, or by employees of, any person authorised to do so by the Department.
(2) Articles 13 to 15 of the Deregulation and Contracting Out (Northern Ireland) Order 1996 (NI 11) apply where a person is authorised to exercise any function of the Department by virtue of this Article as they apply where a person is authorised to exercise any function of a Northern Ireland department by virtue of Part III of that Order.”.
28.—(1) Article 59 of the 1995 Order (regulations) is amended as follows.
(2) In paragraph (1) for “34(8) and 38(5)” there is substituted “12A(8), 33D(5), 34(8), 34A(10), 38(5) and 38A(9)”.
(3) After that paragraph there is inserted—
“(1A) Regulations under this Order may include incidental, supplemental, consequential or transitional provision or savings.”.
Christine Cook
Deputy Clerk of the Privy Council