Legalize / United Kingdom / Public General Act

New Roads and Street Works Act 1991

Type Public General Act

Publication 1991-06-27

Last updated 2026-03-13

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

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 road 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 5 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 161 (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instrument containing provision for the keeping of records of apparatus which appears to the Secretary of State to be superseded by or otherwise inconsistent with the provisions of this section—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 7, 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 139 below.

Duty to inform undertakers of location of apparatus.

139

(1) A person executing works of any description in the road 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 road 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 138(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 road works 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 4 on the standard scale.

Duty to maintain apparatus.

140

(1) An undertaker having apparatus in the road shall secure that the apparatus is maintained to the reasonable satisfaction of—

(a) the road works authority, as regards the safety and convenience of persons using the road (having regard, in particular, to the needs of people with a disability), the structure of the road and the integrity of apparatus of the authority in the road, 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 road, other than major works for road purposes, major bridge works or major transport works (as to which, see sections 143 and 144 below).

(3) If an undertaker fails to give a relevant authority the facilities required by this section—

(a) the road works 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 road.

(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 road works 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).

Liability for damage or loss caused.

141

(1) An undertaker shall compensate—

(a) the road works 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 road in respect of any expense reasonably incurred in making good damage to that apparatus,

as a result of the execution by the undertaker of road works or any event of a kind mentioned in subsection (2) below.

(2) The events referred to in subsection (1) are any explosion, ignition, discharge or other event occurring to gas, electricity, water or 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 road, 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.

Apparatus affected by road, bridge or transport works

Works for road purposes likely to affect apparatus in the road.

142

(1) This section applies to works for road purposes other than major works for road purposes (as to which see section 143 below).

(2) Where works to which this section applies are likely to affect apparatus in the road, 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 4 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.

Measures necessary where apparatus affected by major works.

143

(1) Where an undertaker’s apparatus in a road is or may be affected by major works for roads purposes, major bridge works or major transport works, the roads, 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

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 in the prescribed manner.

(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 made under subsection (3) in settlement of a dispute, the authority or undertaker shall be liable to compensate the other in respect of any loss or damage resulting from the failure.

144

(1) Where an undertaker’s apparatus in a road is affected by major works for roads purposes, 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 roads, 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 road 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 143 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.

Provisions with respect to particular authorities and undertakings

145

(1) In this Part—

“roads authority” and “local roads authority” have the same meaning as in section 151 of the Roads (Scotland) Act 1984; and

“public road” means a road which a roads authority have a duty to maintain.

(2) In this Part “works for road purposes” means—

(a) works for the maintenance of a road,

(b) works for any purpose falling within the definition of “improvement” in section 151 of that Act,

(d) the construction of a crossing for vehicles across a footway or the strengthening or adaptation of a footway for use as a crossing for vehicles.

(3) In this Part “major works for roads purposes” means works of any of the following descriptions executed by the roads authority in relation to a road which consists of or includes a carriageway—

(a) reconstruction or widening of the road,

(b) substantial alteration of the level of the road,

(c) provision, alteration of the position or width, or substantial alteration in the level of a carriageway, footpath or cycle track in the road,

(d) the construction or removal of a road hump within the meaning of section 40 of the Roads (Scotland) Act 1984,

(e) works carried out in exercise of the powers conferred by section 63 of the Roads (Scotland) Act 1984 (new access over verges and footways),

(f) provision of a cattle-grid in the road or works ancillary thereto, or

(g) tunnelling or boring under the road.

Prospective public roads.

146

(1) Subject to subsection (2), where a local roads authority are satisfied that a road in their area which is not a public road is likely to become a public road, they may make a declaration to that effect.

(2) Subsection (1) does not apply to a road which is under the management or control of a transport authority.

(3) The provisions of this Part apply to a road in respect of which such a declaration has been made as they apply to a public road.

(4) In relation to road works in such a road, the road works authority—

(a) shall secure the performance by undertakers of their duties under this Part, and shall exercise their powers under this Part, in such manner as is reasonably required for the protection of the road managers; and

(b) shall comply with any reasonable request as to securing performance of those duties, or as to the exercise of those powers, which may be made by the road managers.

147

(1) In this Part—

(a) references to a bridge include so much of any road as gives access to the bridge and any embankment, retaining wall or other work or substance supporting or protecting that part of the road; and

(b) “bridge authority” means the authority, body or person in whom a bridge is vested.

(2) In this Part “major bridge works” means works for the replacement, reconstruction or substantial alteration of a bridge.

(3) Where a road is carried or crossed by a bridge, any statutory right to place apparatus in the road includes the right to place apparatus in, and attach apparatus to, the structure of the bridge; and other rights to execute works in relation to the apparatus extend accordingly.

References in this Part to apparatus in the road include apparatus so placed or attached.

(4) An undertaker proposing to execute road works affecting the structure of a bridge shall consult the bridge authority before giving notice under section 114 (notice of starting date) in relation to the works.

(5) An undertaker executing such works shall take all reasonably practicable steps—

(a) to give the bridge authority reasonable facilities for monitoring the execution of the works, and

(b) to comply with any requirement made by them which is reasonably necesssary for the protection of the bridge or for securing access to it.

(6) An undertaker who fails to comply with any requirement of subsection (4) or (5) commits an offence in respect of each failure and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(7) Subsections (4) to (6) do not apply to works in relation to which Schedule 6 applies (works in roads with special engineering difficulties).

Sewers.

148

(1) An undertaker proposing to execute road works affecting a public sewer shall consult Scottish Water before giving notice under section 114 (notice of starting date) in relation to the works.

(2) References in this Part to apparatus include a sewer, drain or tunnel.

(3) References in this Part to an undertaker having apparatus shall, where the apparatus is a sewer, drain or tunnel, be construed—

(a) in the case of apparatus vested in Scottish Water, as references to that body; and

(b) in any other case, as references to the authority, body or person having the management or control of the apparatus.

(4) Section 128 (provisions as to works likely to affect other apparatus in the road) does not apply by virtue of subsection (2) above in relation to works likely to affect a public sewer if, or to the extent that, Schedule 6 (works in roads with special engineering difficulties) applies.

Provisions as to reinstatement of sewers, drains or tunnels.

149

(1) The duties of an undertaker under this Part with respect to reinstatement of the road extend, in the case of road works which involve breaking up or opening a sewer, drain or tunnel under the road, to the reinstatement of the sewer, drain or tunnel.

(2) The responsible 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 , not being shorter than such period as may be prescribed, 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.

(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.

(3) If it appears to the responsible 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 road, 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.

(4) The responsible authority for the purposes of this section is—

(a) in the case of a public sewer, Scottish Water, and

(b) in the case of any other sewer, drain or tunnel, the authority, body or person having the management or control of it.

150

(1) In this Part—

(a) “transport authority” means the authority, body or person having the control or management of a transport undertaking; and

(b) “transport undertaking” means a railway, tramway, dock, harbour, pier, canal or inland navigation undertaking of which the activities, or some of the activities, are carried on under statutory authority.

(2) In this Part “major transport works” means substantial works required for the purposes of a transport undertaking and executed in property held or used for the purposes of the undertaking.

(3) References in this Part to a road which crosses or is crossed by property held or used for the purposes of a transport undertaking extend to cases in which the road and the property in question are at different levels.

But the transport authority shall not be treated as a relevant authority as regards undertakers’ works in such a road where the property in question consists only of—

(a) subsoil of the road which is held by the transport authority but is not used, and has not been adapted for use, for the purposes of the undertaking, or

(b) property underground at such a depth that there is no reasonable possibility of the works affecting it.

(4) The provisions of this Part relating to a road which crosses or is crossed by property held or used for the purposes of a transport undertaking apply to a road which is or forms part of a towing-path or other way running along a canal or inland navigation, provided the path or way is held or used, or the subsoil of it is held, for the purposes of the canal or inland navigation undertaking.

Special precautions as to displaying of lights.

151

(1) An undertaker executing road works in a road which crosses, or is crossed by, or is in the vicinity of, a railway, tramway, dock, harbour, pier, canal or inland navigation, shall comply with any reasonable requirements imposed by the transport authority concerned with respect to the displaying of lights so as to avoid any risk of their—

(a) being mistaken for any signal light or other light used for controlling, directing or securing the safety of traffic thereon, or

(b) being a hindrance to the ready interpretation of any such signal or other light.

(2) An undertaker who fails to comply with any such requirement commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) In proceedings for such an offence 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.

Works affecting level crossings or tramways.

152

(1) This section applies to road works at a crossing of a railway on the level or which affect a tramway.

In this section “the relevant transport authority” means the authority having the management of the railway or tramway undertaking concerned.

(2) An undertaker proposing to begin to execute works to which this section applies shall give the prescribed notice to the relevant transport authority notwithstanding that such notice is not required under section 114 (notice of starting date).

The provisions of subsections (2) to (7) of that section (contents of notice, when works may be begun, &c.) apply in relation to the notice required by this subsection as in relation to a notice under subsection (1) of that section.

(3) An undertaker executing works to which this section applies shall comply with any reasonable requirements made by the relevant transport authority—

(a) for securing the safety of persons employed in connection with the works, or

(b) for securing that interference with traffic on the railway or tramway caused by the execution of the works is reduced so far as is practicable;

and, except where submission of a plan and section is required, he shall defer beginning the works for such further period as the relevant transport authority may reasonably request as needed for formulating their requirements under this subsection or making their traffic arrangements.

(4) Nothing in subsection (2) or (3) affects the right of an undertaker to execute emergency works.

(5) An undertaker executing emergency works shall give notice to the relevant transport authority as soon as reasonably practicable of his intention or, as the case may be, of his having begun to do so notwithstanding that such notice is not required by section 116 (notice of emergency works).

The provisions of subsections (3) and (4) of that section (contents of notice and penalty for failure to give notice) apply in relation to the notice required by this subsection as in relation to a notice under subsection (2) of that section.

Power of road works authority or district council to undertake road works

Power of road works authority or district council to undertake road works.

153

(1) A road works authority or district council may enter into an agreement with an undertaker for the execution by the authority or councilon behalf of the undertaker of any road works.

(2) The agreement may contain such terms as to payment and otherwise as the parties consider appropriate.

(3) Nothing in this section shall be construed as derogating from any powers exercisable by the authority or councilapart from this section.

(4) This section shall cease to have effect upon such day as the Secretary of State may appoint by order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Supplementary provisions

Offences.

154

(1) Any provision of this Part imposing criminal liability in respect of any matter is without prejudice to any civil liability in respect of the same matter.

(2) Where a failure to comply with a duty imposed by this Part is continued after conviction, the person in default commits a further offence.

Fixed penalties for certain offences under this Part

154A

(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.

Recovery of costs or expenses.

155

(1) Any provision of this Part enabling an authority, body or person to recover the costs or expenses of taking any action shall be taken to include the relevant administrative expenses of that authority, body or person including an appropriate sum in respect of general staff costs and overheads.

The Secretary of State may prescribe the basis on which such amounts are to be calculated; and different provision may be made for different cases or descriptions of case.

(2) Where a right to payment enuring for the benefit of a person is conferred in respect of the same matter—

(a) both under this Part and under any enactment or agreement passed or made before the commencement of this Part, or

(b) by two or more provisions of this Part,

a payment made in discharge of any of those rights shall be treated as being made in or towards satisfaction of the other or others.

(3) Where under any provision of this Part a person is entitled in certain circumstances to recover costs or expenses incurred by him in executing works or taking other steps, any dispute as to the existence of those circumstances or as to the amount recoverable shall be determined in the prescribed manner.

This applies whether the provision is expressed as conferring a right to recover, or as imposing a liability to reimburse or indemnify or to bear the cost, but does not apply in relation to a provision expressed as providing for the charging of a fee or conferring a right to compensation or in relation to section 137 (contribution to the cost of making good long-term damage to the road).

Service of notices and other documents.

156

(1) Notices required or authorised to be given for the purposes of this Part shall be given in the prescribed form.

(2) The Secretary of State may make provision by regulations as to the manner of service of notices and other documents required or authorised to be served for the purposes of this Part.

(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).

Reckoning of periods.

157

(1) In reckoning for the purposes of this Part a period expressed as a period from or before a given date, that date shall be excluded.

(2) For the purposes of this Part a working day means a day other than a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday; and a notice given after 4.30 p.m. on a working day shall be treated as given on the next working day.

(3) In subsection (2) a “bank holiday” means a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the locality in which the road in question is situated.

Regulations prescribing manner of settlement of disputes

157A

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.

Arbitration.

158

(1) Any matter which under this Part is to be settled by arbitration shall be referred for determination by a single arbiter appointed by agreement between the parties concerned or, in default of agreement, by the sheriff.

(2) In any arbitration in accordance with subsection (1) the arbiter may, and if so directed by the Court of Session shall, state a case for the decision of the Court on any question of law arising in the arbitration; and the decision of the Court shall be final unless the Court or the Supreme Court give leave to appeal to the Supreme Court against the decision.

(3) Leave under subsection (2) may be given on such terms as to expenses or otherwise as the Court or the Supreme Court may determine.

Agreements inconsistent with the provisions of this Part.

159

(1) An agreement which purports to make provision regulating the execution of road works is of no effect to the extent that it is inconsistent with the provisions of this Part.

(2) This does not affect an agreement for the waiver or variation of a right conferred on a relevant authority by any of the provisions of this Part which is made after the right has accrued and is not inconsistent with the future operation of those provisions.

Effect of this Part on certain existing special enactments or instruments.

160

(1) Any special enactment passed or made before the commencement of this Part which makes or authorises the making of provision regulating the execution of road works in a manner inconsistent with the provisions of this Part shall cease to have effect; and unless a contrary intention appears no enactment passed or made after the commencement of this Part shall be construed as making or authorising the making of any such provision.

This subsection does not apply to any provision as to the obtaining of consent for the execution of the works or for any other purpose.

(2) Any special enactment passed or made before the commencement of this Part which requires the consent of a relevant authority (in its capacity as such) to the execution of road works shall cease to have effect, except as mentioned below; and unless a contrary intention appears no special enactment passed or made after the commencement of this Part shall be construed as requiring such consent.

This subsection does not apply to a consent requirement so far as it relates to—

(a) works above the surface level of the road, or

(b) works outside the limits of supply of an undertaker in relation to whom such limits are imposed.

(3) A provision made by way of condition imposed on the giving of a consent for the execution of road works is of no effect in so far as it would have been so by virtue of section 159 if it had been made by an agreement.

(4) If it appears to the Secretary of State—

(a) that by the operation of subsection (1) a person has been or will be deprived of some protection afforded by a special enactment and that corresponding protection is in all the circumstances required, or

(b) that a requirement of consent imposed by a special enactment should be saved from the operation of subsection (2), either as regards all works to which the requirement extends or as regards any description of such works, or

(d) that uncertainty or obscurity has resulted or is likely to result from the operation on a special enactment of the general provisions of subsection (1), (2) or (3),

he may by order make such provision as he considers appropriate for affording such protection, saving the requirement, rendering the conditions valid or modifying the special enactment, as the case may be.

(5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament; and the provisions of Schedule 7 have effect with respect to the procedure for making such an order.

(6) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.

Effect of this Part on other existing enactments or instruments.

161

(1) The Secretary of State may by order make such provision amending, repealing, or preserving the effect of, any enactment passed or made before the commencement of this Part (not being a special enactment to which section 160(1), (2) or (3) applies) as appears to him appropriate in consequence of the provisions of this Part.

(2) Subject to any order under this section and (in the case of a public general Act) to any express amendment made by this Act, any such enactment which proceeds by reference to any provision of the Public Utilities Street Works Act 1950, or any other provision repealed by this Act in consequence of this Part, shall continue to have effect as if the provision referred to had not been repealed.

(3) An order under this section may, in particular, make provision in relation to—

(a) enactments providing for the keeping of records of apparatus, and

(b) enactments providing for the giving of notice of proposed road works.

(4) An order under this section may contain such transitional provisions and savings as appear to the Secretary of State to be appropriate.

(5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) Except as mentioned in section 138(6), the provisions of Schedule 7 have effect with respect to the making of an order under this section in relation to a special enactment.

(7) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.

Former controlled land.

162

(1) The following provisions apply with respect to land (not forming part of a road) in which immediately before the commencement of this Part there is apparatus placed by virtue of Schedule 1 to the Public Utilities Street Works Act 1950 (authorisation of works in certain land abutting a road).

(2) If any person having a sufficient interest in the land gives notice to the undertaker that he objects to the continuance of the powers and rights over the land given by that Schedule, those powers and rights shall cease to have effect at the end of the period of six months from the date on which the notice was given.

For this purpose a person has a sufficient interest in the land if he is an owner, lessee or occupier of the land having an interest greater than that of tenant for a year or from year to year.

(3) The road works authority shall indemnify the undertaker in respect of the costs reasonably incurred by him in or in connection with—

(a) any removal of apparatus rendered necessary by the cessation of his powers and rights under this section, and

(b) the execution of any works or taking of any other measures rendered necessary thereby for the purposes of the supply or service for which apparatus whose removal is rendered necessary was used.

(4) Where the land becomes part of the road after the commencement of this Part, any consent which would have been required for the placing of the apparatus in the road had it been placed there immediately after the land in question became part of the road shall be deemed to have been given unconditionally.

(5) Subject to any exercise of the right conferred by subsection (2), the rights and powers of the undertaker under Schedule 1 to the Public Utilities Street Works Act 1950 continue unaffected by the repeal of that Act.

Meaning of “prescribed” and regulations generally.

163

(1) In this Part “prescribed” means prescribed by the Secretary of State by regulations, which may (unless the context otherwise requires) make different provision for different cases.

(2) Regulations under this Part shall be made by statutory instrument which, unless provision to the contrary is made, shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) Regulations under this Part may provide for references in the regulations to any specified document to operate as references to that document as revised or re-issued from time to time.

Consultation on regulations and codes of practice

163A

(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,

as the Scottish Ministers think appropriate.

Minor definitions.

164

(1) In this Part—

“apparatus” includes any structure for the lodging therein of apparatus or for gaining access to apparatus;

“carriageway” and “footway” have the same meaning as in the Roads (Scotland) Act 1984;

“enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.

“in”, in a context referring to works, apparatus or other property in a road or other place includes a reference to works, apparatus or other property under, over, across, along or upon it;

“public sewer” has the same meaning as in the Sewerage (Scotland) Act 1968;

“railway” includes a light railway other than one in the nature of a tramway (see the definition of “tramway” below);

“reinstatement” includes making good;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“special enactment” means an enactment which is not a public general enactment, and includes—any Act for confirming a provisional order,any provision of a public general Act in relation to the passing of which any of the Standing Orders of the House of Lords or the House of Commons relating to Private Business applied, andany enactment to the extent that it is incorporated or applied for the purposes of a special enactment;

“statutory right” means a right (whether expressed as a right, a power or otherwise) conferred by an enactment (whenever passed or made), other than a right exercisable by virtue of a permission granted under section 109;

“traffic” includes pedestrians and animals;

“traffic authority” and “traffic sign” have the same meaning as in the Road Traffic Regulation Act 1984;

“tramway” means a system, mainly or exclusively for the carriage of passengers, using vehicles guided, or powered by energy transmitted, by rails or other fixed apparatus installed exclusively or mainly in a road.

(2) A right to execute works which extends both to a road and to other land is included in references in this Part to a right to execute works in a road in so far as it extends to the road.

(3) A right to execute works which extends to part of the road but not the whole is included in references in this Part to a right to execute works in a road; and in relation to such a right references in this Part to the road in which it is exercisable shall be construed as references to the part to which the right extends.

(4) For the purposes of this Part apparatus shall be regarded as affected by works if the effect of the works is to prevent or restrict access to the apparatus (for example, by laying other apparatus above or adjacent to it).

(5) Section 28 of the Chronically Sick and Disabled Persons Act 1970 (power to define “disability” and other expressions) applies in relation to the provisions of this Part as to the provisions of that Act.

Index of defined expressions.

165

The expressions listed below are defined or otherwise fall to be construed for the purposes of this Part in accordance with the provisions indicated—

Part V — General

Offences by bodies corporate or Scottish partnerships.

166

(1) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.

(2) Where an offence under this Act is committed in Scotland by a Scottish partnership and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

Crown application.

167

(1) The provisions of section 327 of the Highways Act 1980 (application of Act to Crown land) apply in relation to the provisions of Part I of this Act (new roads in England and Wales) as in relation to the provisions of that Act; and the provisions of section 146 of the Roads (Scotland) Act 1984 (application of Act to Crown land) apply in relation to the provisions of Part II of this Act (new roads in Scotland) as in relation to the provisions of that Act.

(2) Subject to any regulations under subsection (3), th136.e provisions of Parts I and II of this Act have effect in relation to persons in the public service of the Crown, vehicles belonging to, or used for the purposes of, a Minister of the Crown or Government department or as respects Part II of this Act any part of the Scottish Administration and things done, or omitted to be done, in connection with such vehicles by such persons as they have effect in relation to other persons or vehicles.

(3) The Secretary of State may by regulations provide that in their application in relation to—

(a) vehicles belonging to the Crown and used for naval, military or air force purposes,

(b) vehicles used for the purposes of any such body, contingent or detachment of the forces of any country as is a visiting force for the purposes of any of the provisions of the Visiting Forces Act 1952, or

(c) vehicles used for the purposes of any headquarters or organisation designated by an Order in Council under section 1 of the International Headquarters and Defence Organisations Act 1964,

the provisions of Parts I and II of this Act shall have effect subject to such modifications as may be prescribed.

For this purpose “modifications” includes additions, omissions and alterations.

(4) The provisions of Parts III and IV of this Act (street works in England and Wales and road works in Scotland) bind the Crown.

(5) Nothing in subsection (4) shall be construed as authorising the bringing of proceedings for a criminal offence against a person acting on behalf of the Crown.

(5A) The provisions of Part 3A of this Act (National Underground Asset Register: England and Wales) bind the Crown.

(5B) Nothing in subsection (5A) is to be construed as authorising the bringing of proceedings for a criminal offence against a person acting on behalf of the Crown.

(6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Minor and consequential amendments and repeals.

168

(1) The enactments specified in Schedule 8 have effect with the amendments specified there which are minor amendments and amendments consequential on the provisions of this Act.

(2) The enactments mentioned in Schedule 9 are repealed to the extent specified there.

Extent.

169

(1) The following provisions of this Act extend to England and Wales—

Part I (new roads in England and Wales),

Part III (street works in England and Wales),

the provisions of Schedule 8 (minor and consequential amendments) and Schedule 9 (repeals) so far as relating to enactments which extend to England and Wales, and

the other provisions of this Part so far as relating to the above provisions.

(2) The following provisions of this Act extend to Scotland—

Part II (new roads in Scotland),

Part IV (road works in Scotland),

the provisions of Schedule 8 (minor and consequential amendments) and Schedule 9 (repeals) so far as relating to enactments which extend to Scotland, and

the other provisions of this Part so far as relating to the above provisions.

(3) The following provisions of this Act extend to Northern Ireland—

the provisions of Schedule 8 (minor and consequential amendments) and Schedule 9 (repeals) so far as relating to enactments which extend to Northern Ireland, and

the other provisions of this Part so far as relating to the above provisions.

Commencement.

170

(1) The provisions of this Act come into force on such day as the Secretary of State may appoint by order made by statutory instrument; and different days may be appointed for different provisions and different purposes.

(2) An order bringing into force any provision may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

Short title.

171

This Act may be cited as the New Roads and Street Works Act 1991.

SCHEDULE 1

Introductory

1

The provisions of this Schedule apply in relation to the transfer of property, rights and liabilities to the highway authority on the termination of a concession agreement (referred to below as “the ending of the concession”).

Property to vest free from security rights

2

(1) Property vesting in the highway authority shall do so free from any mortgage, charge, lien or other security to which it was subject immediately before the ending of the concession.

(2) This does not affect the liability secured.

Recovery of property taken in distress, &c.

3

(1) Where before the ending of the concession possession of any property vesting in the highway authority has been taken in pursuance of any legal process or distress or under any power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods), the highway authority may recover it from any person in possession of it without being required to discharge the liability in respect of which the process or distress was issued or levied or that power was exercised.

(2) Sub-paragraph (1) does not affect the liability in respect of which the process or distress was issued or levied or the power mentioned there was exercisable.

Validity of previous discharge of liabilities

4

Where a liability has been discharged before the ending of the concession which if it had subsisted immediately before the ending of the concession would have fallen to be transferred to the highway authority, nothing in the Insolvency Act 1986—

(a) affects the validity of anything done by the concessionaire or any other person in discharging the liability,

(b) authorises a court to make an order affecting the property of, or imposing an obligation on, any person in consequence of or in connection with the receipt by him or by any other person of a payment made, property transferred or other benefit provided by the concessionaire or any other person in discharging that liability, or

Property subject to covenants, conditions or restrictions

5

Except as provided by paragraph 2, property vesting in the highway authority shall be held by the authority subject to all covenants, conditions and restrictions subject to which the property was held by the concessionaire.

Transfer of agreements, &c.

6

(1) Subject to the concession agreement and to paragraph 2, all agreements and other transactions entered into or effected by the concessionaire and subsisting immediately before the ending of the concession, in so far as they relate to property, rights or liabilities transferred to the highway authority shall have effect with the substitution of the authority for the concessionaire.

(2) Accordingly—

(a) such an agreement or transaction may be enforced by or against the highway authority, and

(b) references to the concessionaire in an agreement (whether or not in writing) and in a deed, bond or other instrument or document, so far as relating to the property, rights or liabilities mentioned above shall be taken after the ending of the concession as referring to the highway authority.

Legal or other proceedings

7

(1) Subject to the concession agreement, all legal or other proceedings begun before the ending of the concession and relating to property, rights or liabilities transferred to the highway authority, other than proceedings for enforcing a security from which the property is released by virtue of paragraph 2, may be carried on with the substitution of the highway authority for the concessionaire.

(2) Such proceedings may be amended in such manner as may be necessary for that purpose.

Transfer of employees

8

For the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006, or any regulations replacing those regulations, the concessionaire shall be treated as transferring to the highway authority an undertaking which, if a new concessionaire is appointed, the authority shall be treated as then transferring to the new concessionaire.

SCHEDULE 2

Publicity for proposals

1

(1) Where the Secretary of State proposes to make a toll order, he shall prepare a draft of the order and shall publish in at least one local newspaper circulating in the area in which the proposed special road is to be situated, and in the London Gazette, a notice—

(a) stating the general effect of the proposed order;

(b) naming a place in that area where a copy of the draft order may be inspected by any person free of charge at all reasonable hours during a period specified in the notice, being a period of not less than six weeks from the date of the publication of the notice; and

(c) stating that, within that period, any person may by notice to the Secretary of State object to the making of the order.

(2) Where a toll order is submitted to the Secretary of State by a strategic highways company or a local highway authority, the company or the authority shall publish in at least one local newspaper circulating in the area in which the proposed special road is to be situated, and in the London Gazette, a notice—

(a) stating the general effect of the order as submitted to the Secretary of State;

(b) naming a place in that area where a copy of the order may be inspected by any person free of charge at all reasonable hours during a period specified in the notice, being a period of not less than six weeks from the date of the publication of the notice; and

(c) stating that, within that period, any person may by notice to the Secretary of State object to the confirmation of the order.

(3) Where the special road to which the toll order relates is to be subject to a concession, the Secretary of State , the strategic highways company or the local highway authority shall make available for inspection with the copy of the draft order or of the order, as the case may be, a statement containing such information as may be prescribed with respect to the concessionaire and the concession agreement.

The notice under sub-paragraph (1) or (2) shall indicate that such a statement will be so available for inspection.

(4) In sub-paragraph (3) “prescribed” means prescribed by the Secretary of State by regulations made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

2

(1) The Secretary of State , the strategic highways company or the local highway authority, as the case may be, shall serve on every local authority in whose area any part of the route of the proposed special road is situated a copy of the notice published under paragraph 1(1) or (2) and of the draft order or of the order, as the case may be.

(2) The copies must be served not later than the day on which the notice is published or, if it is published on two or more days, the day on which it is first published.

(3) In sub-paragraph (1) “local authority” means a county, district or London borough council or the Common Council of the City of London but, in relation to Wales, means a county council or county borough council.

3

If it appears to the Secretary of State , the strategic highways company or, as the case may be, the local highway authority to be desirable to do so, he or they shall take such steps, in addition to those required by paragraphs 1 and 2, as will in his or their opinion secure that additional publicity is given in the area affected by the relevant special road scheme to the proposals contained in the order.

4

(1) Before or after the end of the period specified in the notice in pursuance of paragraph 1(1) or (2), the Secretary of State , the strategic highways company or the local highway authority, as the case may be, may by a further notice published in the same manner substitute a longer period for that specified in the first notice.

(2) Paragraph 2 applies with respect to service of a copy of any such further notice as in relation to the first notice.

Making of objections

5

(1) A person who objects to the making or confirmation of a toll order shall include in the notice of objection a statement of the grounds of objection.

(2) If that is not done, the Secretary of State may disregard the objection.

Local inquiry

6

(1) If an objection is received by the Secretary of State within the period specified for making objections, and is not withdrawn, then—

(a) if the objection is from a local authority on whom a copy of the notice is required to be served under paragraph 2, the Secretary of State shall cause a local inquiry to be held;

(b) if the objection is from any other person appearing to the Secretary of State to be affected, he shall cause a local inquiry to be held unless he is satisfied that in the circumstances of the case it is unnecessary.

(2) The period specified for making objections means the period specified in the notice under paragraph 1(1) or (2) or any longer period substituted by a further notice under paragraph 1(3).

Making or confirmation of order

7

(1) The Secretary of State, after considering—

(a) any objections which are not withdrawn, and

(b) where a local inquiry is held, the report of the person who held the inquiry,

may make or confirm the order either without modification or subject to such modifications as he thinks fit.

(2) Where he proposes to make or confirm the order subject to modifications which will in his opinion make a substantial change in the order, he shall—

(a) notify any person who appears to him to be likely to be affected by the proposed modifications,

(b) give that person an opportunity of making representations with respect to the modifications within such reasonable period as he may specify, and

Notice of making or confirmation of order

8

As soon as may be after a toll order has been made or confirmed by the Secretary of State, he shall publish in the London Gazette, and in such other manner as he thinks best adapted for informing persons affected, a notice stating that the order has been made or confirmed and naming a place where a copy of it may be inspected free of charge at all reasonable hours.

Special parliamentary procedure where existing highway appropriated or transferred

9

(1) A toll order shall be subject to special parliamentary procedure where—

(a) the relevant special road scheme provides for the appropriation by or transfer to the special road authority of an existing highway comprised in the route prescribed by the scheme, and

(b) the toll order authorises the charging of tolls for the use of that existing highway or any part of it,

unless the Secretary of State is satisfied as regards all classes of traffic entitled to use the existing highway that another reasonably convenient route free of toll is available, or will be provided before the date on which the appropriation or transfer takes effect, and certifies accordingly.

(2) Where the Secretary of State proposes to give such a certificate, he shall—

(a) give public notice of his intention to do so,

(b) afford an opportunity to all persons interested to make representations and objections, and

(c) cause a public local inquiry to be held if it appears to him to be expedient to do so, having regard to representations or objections made,

and before deciding whether to give the certificate he shall consider any representations and objections made and, if an inquiry has been held, the report of the person who held the inquiry.

(3) As soon as may be after giving a certificate, the Secretary of State shall publish in the London Gazette, and in such other manner as he thinks best for informing persons affected, a notice stating that the certificate has been given.

Challenge to validity of order or certificate

10

(1) If a person aggrieved by a toll order desires to question the validity of it, or of any provision contained in it, on the ground—

(a) that it is not within the powers of this Act, or

(b) that any requirement of this Act has not been complied with,

he may within six weeks after the publication (or first publication) of the notice required by paragraph 8 make an application for the purpose to the High Court.

(2) The court may on such an application by interim order suspend the operation of the toll order, or any provision of it, either generally or so far as the interests of the applicant are affected, until the final determination of the proceedings.

(3) If on an application under this paragraph the court is satisfied—

(a) that the order, or any provision of it, is not within the powers of this Act, or

(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with any such requirement as aforesaid,

the court may quash the order or any provision of it.

(4) If the court quashes the order, the relevant special road scheme shall also cease to have effect.

(5) Except as provided by this paragraph, the order shall not be questioned in any legal proceedings whatsoever, either before or after it is made or confirmed, and shall become operative on such date as is specified in the order.

11

(1) In relation to a toll order which is subject to special parliamentary procedure—

(a) if the order is confirmed by Act of Parliament under section 6 of the Statutory Orders (Special Procedure) Act 1945, paragraph 10 above does not apply;

(b) in any other case, that paragraph has effect subject to the following modifications—

(i) the reference in sub-paragraph (1) to the date on which the notice required by paragraph 8 is published (or first published) shall be construed as a reference to the date on which the order becomes operative under the Act of 1945, and

(ii) in sub-paragraph (5) the words “and shall become operative” to the end shall be omitted.

(2) The provisions of paragraph 10(1) to (3) and (5) above apply in relation to a certificate under paragraph 9 as in relation to a toll order, subject to the following modifications—

(a) the reference in sub-paragraph (1) to the notice required by paragraph 8 shall be construed as a reference to the notice required by paragraph 9(3), and

(b) in sub-paragraph (5) for “made or confirmed” substitute “ given ” and omit the words from “and shall become operative” to the end.

SCHEDULE 3

Grant of licence

1

Before granting a street works licence the street authority shall give not less than 10 working days’ notice to each of the following—

(a) where the works are likely to affect a public sewer, to the sewer authority,

(b) where the works are to be executed in a part of a street which is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,

(c) where in any other case the part of the street in which the works are to be executed is carried or crossed by a bridge, to the bridge authority,

(d) to any person who has given notice under section 54 (advance notice of certain works) of his intention to execute street works which are likely to be affected by the works to which the licence relates, and

(e) to any other person having apparatus in the street which is likely to be affected by the works;

but a failure to do so does not affect the validity of the licence.

2

The street authority may require the payment of—

(a) a reasonable fee in respect of legal or other expenses incurred in connection with the grant of a street works licence, and

(b) an annual fee of a reasonable amount for administering the licence;

and any such fee is recoverable from the licensee.

Electronic communications networks: determination of applications to install facilities

2A

Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 makes provision about the time within which certain applications for the granting of rights to install facilities must be determined.

Conditions attached to licence

3

A street authority may attach to a street works licence such conditions as they consider appropriate—

(a) in the interests of safety,

(b) to minimise the inconvenience to persons using the street (having regard, in particular, to the needs of people with a disability), or

4

Where assignment of a street works licence is permitted, a condition may be attached requiring the consent of the street authority to any assignment.

Notice of change of ownership, &c.

5

(1) Where the licensee under a street works licence proposes—

(a) to cease using or abandon the apparatus, or

(b) to part with his interest in the apparatus,

he shall give the street authority at least six weeks’ notice before doing so.

(2) Where the licensee under a street works licence granted to the owner of land and his successors in title proposes to part with his interest in the land, he shall before doing so give notice to the street authority stating to whom the benefit of the licence is to be transferred.

(3) A person who fails to comply with an obligation under this paragraph commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Withdrawal of licence

6

(1) The street authority may by notice in writing served on the licensee withdraw a street works licence—

(a) if the licensee fails to comply with any provision of this Part or any condition of the licence,

(b) if the authority become aware that the licensee—

(i) has ceased to use or has abandoned the apparatus, or intends to do so, or

(ii) has parted with or intends to part with his interest in the apparatus in a case where assignment of the licence is prohibited, or

(c) if the authority consider the withdrawal of the licence is necessary for the purpose of the exercise of their functions as street authority.

(2) The withdrawal takes effect at the end of such period beginning with the date of service as may be specified in the notice.

The period shall not be less than 7 working days in the case of a withdrawal under sub-paragraph (1)(a) or (b), and shall not be less than three months in the case of a withdrawal under sub-paragraph (1)(c).

Removal of apparatus

7

(1) Where a street works licence expires or is withdrawn or surrendered, the street authority may remove the apparatus to which the licence relates or alter it in such manner as they think fit and reinstate the street, and may recover from the former licensee the expenses incurred by them in doing so.

(2) If they are satisfied that the former licensee can, within such reasonable time as they may specify, remove the apparatus or alter it in such manner as they may require and reinstate the street, they may authorise him to do so at his own expense.

(3) Before executing any works under this paragraph the street authority or the former licensee, as the case may be, shall give not less than 7 working days’ notice to any person whose apparatus is likely to be affected and shall satisfy their requirements as to the method of executing the works and as to the supervision of the works by them.

(4) In this paragraph and paragraph 8 below “the former licensee” means the person who immediately before the expiry, withdrawal or surrender of a street works licence was the licensee or, if that person has died, his personal representatives.

Obligation of licensee to indemnify street authority

8

(1) The licensee under a street works licence shall indemnify the street authority against any claim in respect of injury, damage or loss arising out of—

(a) the placing or presence in the street of apparatus to which the licence relates, or

(b) the execution by any person of any works authorised by the licence;

and the former licensee shall indemnify the street authority against any claim in respect of injury, damage or loss arising out of the execution by the authority or the licensee of any works under paragraph 7.

(2) The liability of a licensee or former licensee under this paragraph arises—

(a) whether or not the damage or loss is attributable to negligence on their part or on the part of any person for whom they are responsible, and

(b) notwithstanding that they are acting in pursuance of a statutory duty.

(3) However, their liability does not extend to damage or loss which is attributable to misconduct or negligence on the part of—

(a) the street authority or a person for whom the authority are responsible, or

(b) a third party, that is, a person for whom neither the licensee or former licensee nor the authority are responsible.

(4) For the purposes of this paragraph the persons for whom a person is responsible are his contractors and any person in his employ or that of his contractors.

Appeal against decision of local highway authority

9

(1) Where the apparatus in respect of which an application for a street works licence is made to a strategic highways company or a local highway authority is to be placed or retained on a line crossing the street, and not along the line of the street, a person aggrieved by—

(a) the refusal of the company or the authority to grant him a licence,

(b) their refusal to grant a licence except on terms prohibiting its assignment, or

may appeal to the Secretary of State.

(2) The procedure on an appeal shall be such as may be prescribed.

(3) Where on an appeal the Secretary of State reverses or varies the decision of the strategic highways company or the local highway authority, it is the duty of that company or that authority to give effect to his decision.

SCHEDULE 3A

Introductory

1

(1) This Schedule applies where a street authority receive a notice under section 54 or 55 that an undertaker is proposing to execute substantial street works in a highway.

(2) For the purposes of this Schedule, “substantial street works” means street works of such description as may be prescribed.

Notice by authority of proposed restriction

2

(1) The street authority may publish a notice—

(a) specifying the nature and location of the proposed works and the date on which it is proposed to begin them;

(b) stating that the authority propose to issue a direction under paragraph 4 imposing a restriction on street works;

(d) requiring any other undertakers who propose to execute street works in that part of the highway, and who have not already done so, to notify the authority of their proposed works within the period specified in the notice (“the notice period”).

(2) The notice period shall not be less than such period as may be prescribed.

(3) A notice under this paragraph shall—

(a) be published in the prescribed form and manner; and

(b) comply with such requirements as to its form and content as may be prescribed.

(4) A copy of a notice under this paragraph shall be given to each of the following—

(a) where there is a public sewer in the part of the highway specified under sub-paragraph (1)(c), to the sewer authority;

(b) where that part of the highway is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held by or used for the purposes of a transport authority, to that authority;

(d) any person who has given notice under section 54 of his intention to execute street works in that part of the highway;

(e) any person who has apparatus in that part of the highway;

(f) any other person of a prescribed description.

(5) Notification under sub-paragraph (1)(d) shall be in such form, contain such information, and be made in such manner as may be prescribed.

(6) Section 55 does not apply in relation to works in the part of the highway specified under sub-paragraph (1)(c) that are begun between the end of the notice period and completion of the works referred to in paragraph 3(1)(a) to (c).

This sub-paragraph does not apply to cases prescribed under paragraph 3(5)(b).

Completion of notified works

3

(1) After the expiry of the notice period the street authority may issue directions to—

(a) the undertaker proposing to execute the substantial street works,

(b) any undertakers who have given notice under paragraph 2 in respect of works they propose to execute, and

(c) any undertakers who have previously given notice of works they propose to execute in the part of the highway specified under paragraph 2(1)(c).

(2) A direction to an undertaker under this paragraph is a direction as to the date on which he may begin to execute the works proposed by him.

(3) Where—

(a) a direction is given to an undertaker under this paragraph as respects the date on which he may begin to execute the works proposed by him, and

(b) he begins to execute those works before that date,

he is guilty of an offence.

(4) After the expiry of the notice period, any undertaker who, before completion of the works referred to in sub-paragraph (1)(a) to (c), executes any other street works in the part of the highway specified under paragraph 2(1)(c), commits an offence.

(5) Sub-paragraph (4) does not apply—

(a) where an undertaker executes emergency works; or

(b) in such other cases as may be prescribed.

(6) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Direction restricting further works

4

(1) After the expiry of the notice period and before completion of the works referred to in paragraph 3(1)(a) to (c) the authority may give a direction under this paragraph.

(2) A direction under this paragraph is a direction restricting the execution of street works in the part of the highway specified under paragraph 2(1)(c) for such period following completion of the works referred to in paragraph 3(1)(a) to (c) as may be specified in the direction.

(3) The duration of the period specified under sub-paragraph (2) may not exceed the duration of the restriction proposed by the authority under paragraph 2(1)(c).

(4) The period specified in a direction under this paragraph may not in any case exceed such period as may be prescribed.

(5) A direction under this paragraph shall—

(a) be given in the prescribed manner;

(b) comply with such requirements as to its form and content as may be prescribed.

(6) The street authority must send a copy of any direction under this paragraph to the persons specified in paragraph 2(4).

(7) A direction under this paragraph shall cease to have effect if the works referred to in paragraph 3(1)(a) to (c) to which it relates are not completed within such period as may be prescribed.

(8) A direction under this paragraph may be revoked at any time by the authority which gave it.

(9) Where a direction under this paragraph ceases to have effect by virtue of sub-paragraph (7), or is revoked by virtue of sub-paragraph (8), the street authority must notify the persons specified in paragraph 2(4).

(10) If the street authority decides not to give a direction under this paragraph, it must notify the persons specified in paragraph 2(4) accordingly.

Effect of direction imposing restriction

5

(1) Where a direction under paragraph 4 is in force, an undertaker may not during the period specified in the direction execute street works in the part of the highway to which the restriction relates.

(2) Sub-paragraph (1) does not apply—

(a) where an undertaker executes emergency works;

(b) where an undertaker executes works with the consent of the street authority; or

(3) The consent of the street authority under sub-paragraph (2)(b) shall not be unreasonably withheld; and any question whether the withholding of consent is unreasonable shall be settled in such manner as may be prescribed.

(4) Regulations under sub-paragraph (3) may in particular make provision for the question referred to in that sub-paragraph to be settled—

(a) by arbitration;

(b) by a person specified by the Secretary of State on appeal by the undertaker.

(5) An undertaker who contravenes sub-paragraph (1) commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) An undertaker convicted of an offence under sub-paragraph (5) is liable to reimburse the street authority any costs reasonably incurred by them in reinstating the highway.

Supplementary

6

An undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is attributable to a restriction imposed under this Schedule.

SCHEDULE 4

Introductory

1

In this Schedule a “street with special engineering difficulties” means a street for the time being designated under section 63 as having special engineering difficulties.

Requirement of plan and section

2

(1) In a street with special engineering difficulties street works (other than emergency 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,

shall not be executed until a plan and section of the works have been settled by agreement between the undertaker and each of the relevant authorities or by arbitration.

(2) For that purpose an undertaker proposing to execute any such works shall submit a plan and section of them to each relevant authority.

3

Emergency works may be executed without a plan and section being so submitted or settled, but as soon as is reasonably practicable after the execution of the works the undertaker shall furnish a plan and section of the works to each relevant authority.

4

(1) In the case of a street which is not a maintainable highway and which the street managers have no liability to the public to maintain or repair, the undertaker may give the street managers a notice stating—

(a) the general effect of the works proposed or, as the case may be, of the emergency works executed, and

(b) that it is a notice given for the purposes of this paragraph.

(2) Where such a notice is given paragraphs 2 and 3 do not apply if the street managers do not, within 10 working days from the date on which the notice was given to them, give notice to the undertaker requiring the submission or furnishing of a plan and section to them.

5

(1) A relevant authority to whom a plan and section of works are required to be submitted or furnished may accept as, or in lieu of, a plan and section any description of the works, whether in diagram form or not, which appears to them to be sufficient.

(2) References in this Schedule to a plan and section include any such description so submitted or furnished to the form of which the relevant authority have not objected within the time allowed under paragraph 7(2) below.

6

If an undertaker—

(a) executes any works in contravention of paragraph 2, or

(b) fails to furnish a plan and section in accordance with paragraph 3,

he commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Procedure on submission of plan and section

7

(1) A relevant authority to whom there is submitted a plan and section of street works proposed to be executed in a street with special engineering difficulties shall give notice to the undertaker—

(a) approving the plan and section without modification, or

(b) objecting to them in form as being on too small a scale or giving insufficient particulars, or

(d) disapproving them.

(2) The notice shall be given without avoidable delay, and at the latest before the end of the period of—

(a) 7 working days in the case of a plan and section of works relating only to—

(i) a service pipe or service line, or

(ii) overhead electric lines or electronic communications apparatus, and

(b) one month in any other case;

and as between the undertaker and a relevant authority who do not duly give notice before the end of that period, the plan and section as submitted shall be deemed to have been settled by agreement.

(3) The reference in sub-paragraph (2)(a)(i) to a service pipe or service line is to—

(a) a pipe or line through or by means of which a supply of gas, electricity or water is afforded or intended to be afforded to premises—

(i) directly from premises from which the supply originates, or

(ii) from a main, that is, a pipe or line for affording a general supply;

(b) a pipe through or by means of which sewerage services are afforded, or intended to be afforded, which is a private sewer or drain within the meaning of the Water Industry Act 1991; or

(c) underground electronic communications apparatus for the purpose of providing a service by means of an electronic communications network to or from particular premises (as opposed to apparatus for the general purposes of such a network).

But so much of any such pipe, line or apparatus as is placed, or intended to be placed, for a continuous length of 100 metres or more in a maintainable highway shall be treated as not being a service pipe or service line.

(4) In this paragraph—

“electric line” has the same meaning as in Part I of the Electricity Act 1989;

8

(1) Where a relevant authority give notice approving the plan and section subject to modifications, or disapproving the plan and section, they shall state their reasons for doing so.

(2) If a relevant authority duly give notice—

(a) objecting to the plan and section in form, or

(b) approving them subject to modifications to which the undertaker does not agree, or

then, unless the notice is withdrawn, the undertaker may refer the matter to arbitration.

(3) If the notice is withdrawn, the plan and section as submitted shall be deemed to have been settled by agreement between the relevant authority and the undertaker.

9

A sewer authority or bridge authority may not give notice—

(a) approving a plan and section subject to modifications, or

(b) disapproving a plan and section,

on grounds other than such as relate to the injurious effect of the proposed works on their sewer or, as the case may be, on the structure or stability of their bridge.

Settlement of plan and section by arbitration

10

(1) The duty of the arbitrator where a matter is referred to arbitration is to settle a plan and section of works of the kind proposed, as works to be executed in the street.

(2) He may require the undertaker to submit to him a plan and section in such form, require the relevant authority to submit to him such observations on a plan and section submitted to him, and require the undertaker or the relevant authority to furnish him with such information and to take such other steps, as appear to him to be requisite.

(3) He may treat compliance with any such requirement made of the undertaker as a condition of his proceeding with the settlement of a plan and section, and compliance with any such requirement made of the relevant authority as a condition of his settling a plan and section otherwise than as proposed by the undertaker.

11

(1) Where the reference relates to the placing, altering or changing the position of apparatus in a street which is carried or crossed by a bridge, then, if the arbitrator is satisfied—

(a) that the execution of the works would be likely to affect injuriously the structure or stability of the bridge, and

(b) that it is not practicable to meet objection on that ground to the plan and section submitted,

he shall so declare, and shall not settle any plan and section of those works on the reference.

(2) This does not affect the right of the undertaker to submit another plan and section.

Objection to works executed without plan and section being settled

12

(1) This paragraph applies where street works have been executed in a street with special engineering difficulties without a plan and section having been settled with the street authority or another relevant authority, whether the works were executed in contravention of paragraph 2 above or were emergency works.

(2) The authority in question may, by notice to the undertaker, object to any of the works; and after affording the undertaker an opportunity to enter into an agreement with them for meeting the objection, may refer the matter to arbitration.

(3) The arbitrator may direct the alteration of the works to conform to a plan and section settled by him, or the removal of any apparatus placed in the execution of the works, and the undertaker shall comply with any such direction.

(4) In settling the terms of any such direction the arbitrator shall satisfy himself that compliance with it will not involve any undue interruption or restriction of the supply or service for the purposes of which the works were executed.

(5) If an undertaker fails to execute works in accordance with a direction under this paragraph, he commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Execution of works in accordance with plan and section

13

(1) An undertaker executing street works in a street with special engineering difficulties shall, where a plan and section have been settled, execute the works in accordance with the plan and section as settled or, if each of the relevant authorities agrees to the modification of the plan or section, in accordance with them as so modified.

(2) If an undertaker fails to comply with sub-paragraph (1) he commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

SCHEDULE 4A

SCHEDULE 4B

Power to give fixed penalty notices

1

(1) An authorised officer of a street authority may, if he has reason to believe that a person is committing or has committed a fixed penalty offence, give him a fixed penalty notice in relation to that offence.

(2) In this Schedule “fixed penalty notice” means a notice offering a person the opportunity of discharging any liability to conviction for a fixed penalty offence by payment of a penalty.

2

A fixed penalty notice for an offence may not be given after such time relating to the offence as the Secretary of State may by regulations prescribe.

Contents of fixed penalty notice

3

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New Roads and Street Works Act 1991

Duty to inform undertakers of location of apparatus.

139

Duty to maintain apparatus.

140

Liability for damage or loss caused.

141

Apparatus affected by road, bridge or transport works

Works for road purposes likely to affect apparatus in the road.

142

Measures necessary where apparatus affected by major works.

143

Sharing of cost of necessary measures.

144

Provisions with respect to particular authorities and undertakings

Roads authorities, roads and related matters.

145

Prospective public roads.

146

Bridges, bridge authorities and related matters.

147

Sewers.

148

Provisions as to reinstatement of sewers, drains or tunnels.

149

Transport authorities, transport undertakings and related matters.

150

Special precautions as to displaying of lights.

151

Works affecting level crossings or tramways.

152

Power of road works authority or district council to undertake road works

Power of road works authority or district council to undertake road works.

153

Supplementary provisions

Offences.

154

Fixed penalties for certain offences under this Part

154A

Recovery of costs or expenses.

155

Service of notices and other documents.

156

Reckoning of periods.

157

Regulations prescribing manner of settlement of disputes

157A

Arbitration.

158

Agreements inconsistent with the provisions of this Part.

159

Effect of this Part on certain existing special enactments or instruments.

160

Effect of this Part on other existing enactments or instruments.

161

Former controlled land.

162

Meaning of “prescribed” and regulations generally.

163

Consultation on regulations and codes of practice

163A

Minor definitions.

164

Index of defined expressions.

165

Part V — General

Offences by bodies corporate or Scottish partnerships.

166

Crown application.

167

Minor and consequential amendments and repeals.

168

Extent.

169

Commencement.

170

Short title.

171

SCHEDULE 1

Introductory