HL Deb 05 February 1991 vol 525 cc1071-108

3.11 p.m.

The Minister of State, Department of Transport (Lord Brabazon of Tara)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Brabazon of Tara.)

On Question, Motion agreed to.

Clause 67 [Fee for occupation of the highway]:

Lord Lucas of Chilworth moved Amendment No. 115: Page 37, line 41, leave out subsection (1) and insert: ("(1) The Secretary of State may make provision by regulations, where the provisions of this part are consistently not complied with, for an undertaker executing works in a street designated as traffic sensitive to pay the prescribed fee for occupation of the highway").

The noble Lord said: My Lords, in moving Amendment No. 115, standing in my name and that of the noble Lord, Lord Tordoff, I shall speak also to Amendments Nos. 116, 117 and 118, also standing in the name of the noble Lord, Lord Tordoff.

In Clause 67 we return to the vexing question of fees for the occupation of the highway. This matter was debated at Second Reading and during Committee stage. The primary reason for the tabling of these amendments arises from the contribution made by the noble Lord, Lord Tordoff, in the clause stand part debate during Committee stage.

I recognise that the Minister reiterated the Government's intention to include this scheme in the Bill. Equally, I recognise the assurances that have been given, particularly those contained in government Amendment No. 141 at Committee stage which allows for repayment of fees already paid where the work is completed earlier than expected. Nevertheless, the utilities have a right to place apparatus in the highway. That is conferred upon them by a number of statutes all of which have been reconfirmed by Parliament within the past few years.

When the noble Lord, Lord Clinton-Davis, spoke to an earlier amendment on 6th December he said that the placing of apparatus in or under the highway was a privilege and not a right. But clearly the reverse is true. In 1984 under the Telecommunications Act, in 1986 under the Gas Act and in 1989 under both the Electricity and the Water Acts, specific powers were conferred upon the utilities to lay plant in the public highway.

This series of amendments is designed to overcome practical difficulties; to add sensibility to the Bill, and to underline the intentions of the Government. I suggest that if a scheme involving fees is introduced, it should relate only to traffic-sensitive routes. At the same time, any such scheme should provide for free periods when no charges would be payable. That would represent the core time for a job. Where emergency works are concerned, almost by definition the utility needs no incentive to complete the job as quickly as possible and such works could reasonably be exempt from fees.

I suggest that it is unreasonable to prescribe a fee where emergency works are undertaken. Why should an undertaker be charged for fulfilling his obligations to protect the public from likely danger? That is essentially how emergency works have been described during the debates on this matter. In practical terms it is impossible to determine how long emergency repairs will take until the full extent of the emergency is recognised. Indeed, that recognition cannot be made until remedial works have at least started. To fix some arbitrary period seems to be not only unreasonable, but also not sensible.

At the outset I said that I recognised that the intentions of the Government were to impose a financial incentive for works to be completed quickly. I do not believe that Amendment No. 115 would in anyway diminish that responsibility. I beg to move.

Lord Tordoff

My Lords, in supporting the amendment I briefly return to what was said when, as the noble Lord, Lord Lucas, was kind enough to say, I raised the matter during the debate on clause stand part at Committee stage. We have teased out the problem quite a long way. It is clear that the Government believe that in many circumstances to charge a fee would instil a discipline on the person digging the hole in the road. However, the Government have accepted that this is a provision that will be used only in exceptional circumstances.

The noble Lord, Lord Lucas, set out the position extremely well this afternoon. However, I should like to make one point. The danger of putting an arbitrary period on emergency works may create a tendency to short-cut the situation and lead to some safety or health hazards. The people who will be carrying out these works feel that it is right for the Government to spell out that the provision will be used only in limited circumstances. They believe that it is something which should appear on the face of the Bill.

The local authorities understand the situation. They are prepared to go along with it in principle, although they may not be especially happy with the wording of the amendment. I had hoped that by this time the local authorities and the utilities might have got together and come up with a joint amendment. Perhaps it is not too late for that to happen before the later stages of the Bill. It not only has to come back here for Third reading, but it also has to go through another place.

This afternoon, even if we achieve nothing more, it would be useful if we obtained agreement from the Minister that he too would like to see the provision on the face of the Bill, provided that agreed wording could be found. It is an important issue. As we have said many times, there has been a considerable amount of agreement about the Bill between the local authorities and the utilities. This House, both at Second Reading and Committee, has been unwilling to upset the balance between the contending forces.

The amendment concerns an area which is still unresolved. I hope that the Minister can assist. Even if the series of amendments is not totally to his liking, I hope that he will be prepared to introduce a government amendment at a later stage.

Lord Nugent of Guildford

My Lords, I wonder whether it would be wise to reduce the effects of the provisions in Clause 67 as much as my noble friend Lord Lucas proposes with these amendments, especially in limiting their application to traffic-sensitive routes only. Of course we want to maintain the co-operation and harmony which have been achieved in these very complicated matters between the highway and the statutory authorities. My noble friend started off by emphasising the statutory right of undertakers to place works in the road. That is true. But what Parliament has not really defined before this Bill is at traffic has the right to use the road. What we are considering here, I think for the first time, is the balance between the needs of the statutory undertakers to place their works in the road and the needs of the vehicles to pass along it.

When every year now there are literally millions of openings on the roads, especially in towns, and when traffic congestion is such a very important aspect of town and city life throughout the country, this is a timely moment for my noble friend the Minister to put this clause into the Bill. It will introduce into the Bill and onto the statute book some balance between the needs of moving traffic and the needs of the statutory undertaker. By the introduction of a scheme which has been called lane rental on motorways, for the first time the statutory undertaker has a direct incentive to be as quick as he can in his own interests and in those of the people for whom he is working. That must surely be a sensible and practical measure.

I am quite certain that my noble friend has no thought of laying down an arbitrary time limit within which a statutory undertaker has to work. However, if he knows that he is paying for each extra day that he works there and has his equipment on the road, naturally he will have a strong incentive to be as quick as possible. The application of this principle to motorways has shown a substantial saving both in time and money. Therefore, its general application to all roads seems to be no more than sensible and practical. I am sure that my noble friend will balance carefully the amount of the charge and the conditions of its application when he comes to make the regulations which will introduce the measure.

My noble friend Lord Lucas said that the statutory undertaker needs no incentive to be as quick as he can. In the real world we see a statutory undertaker who is about to undertake work on a road—

Lord Tordoff

My Lords, I am grateful to the noble Lord for giving way. I think that the noble Lord, Lord Lucas, referred specifically to emergency work when he used those words; namely, that there is no incentive for delay when doing emergency works because there is necessarily a danger to health and safety. I do not think he extended the measure beyond emergency work.

Lord Nugent of Guildford

My Lords, we can both look at Hansard tomorrow. I wrote down what my noble friend said as he said it.

The point I am making is that it is common experience that when undertakers are about to begin roadworks they bring the equipment along one week and start work the following week. That denies people the use of a lane on the road. We see that happening all over the country. We need to offer an incentive to stop such practices and also to clear up afterwards. Every day equipment is left on roads that interferes with the flow of traffic, and that is costing all traffic users and the town road system extra money in terms of delivery costs.

We are talking about the real world and not an imaginary one. It is sensible to build this incentive into the Bill. I do not think that the extra discipline will seriously interfere with the work of the statutory undertaker; it will probably improve it. I have said once before, and it is worth saying again, that there are modern techniques of trenchless digging which can greatly reduce the degree of tearing up the road surface and thereby reduce the charges made in order to carry out the work on the highway. As we know, British Gas has introduced trenchless digging over thousands of miles of work, and it is greatly to its advantage because it is much cheaper. It is even more to the advantage of moving traffic.

It is a desirable incentive to use these modern methods of dealing with cables and pipes on the highway: their more general use should be encouraged. I hope that my noble friend the Minister will not reduce the effectiveness of the Bill by accepting the amendment to reduce the application of the provision to sensitive routes only. It should be applied to all routes. That would be the proper thing to do. My noble friend can cater for that with the statutory orders that he makes.

Lord Tordoff

My Lords, is the noble Lord aware that the Minister said at an earlier stage that the provision was not going to be used across the board? He said that it would be restricted to certain situations.

Lord Nugent of Guildford

My Lords, with the leave of the House, I shall also make a brief second speech. Of course I know what my noble friend said. But I expect that in his regulations he will take care of all practical considerations.

Lord Peyton of Yeovil

My Lords, I wish briefly to support what my noble friend Lord Nugent has said. Any visitor to this city could well come to the conclusion that the highway is meant for almost any purpose other than moving about. It would be wise to seek the advice of those who regularly use it. I am one of those who believe that some of the more intelligent people who use our highways are the taxi drivers. We must face the harsh fact that if we are not prepared to build new roads we have to restrict fairly severely the use of those we have.

Although the utilities are capable of painting quite attractive and alluring pictures of themselves and their activities, the general experience is very much on the lines indicated by my noble friend Lord Nugent just now. Contractors come along a week or so before they are prepared to do the work, make their preparations, leave what they believe is convenient to them on site and then go away until they are ready to complete the next stage. I very much hope that my noble friend will not be tempted, in the form of this amendment, into taking out of the Bill such teeth as it has.

Lord Underhill

My Lords, I wish to make it absolutely clear, as I believe I said at Second Reading and also in Committee, that the highway authorities do not in any way oppose the general principle of the clause. However, they have emphasised time and time again that they wish it to be a reserve power only to be used when everything else provided for is not working.

The two noble Lords who introduced the amendments went through the history so I shall not go into it. When the existing subsection (6) was introduced at Committee stage the Minister made the matter absolutely clear then and during the debate on clause stand part, when he said: This is a provision worth having in reserve". He went on to say: the first of any regulations made under this section would need to be brought in by an affirmative resolution instrument". He continued: We shall of course continue consultations with those involved on that issue".—[Official Report, 6/12/90; col. 345.] That followed what the noble Lord, Lord Tordoff, said about continuing discussions.

What rather surprises me in this is that we are all agreed that the provision should be an emergency power to be used only when everything else has failed. Yet for some reason the Government are very timid about writing that into the Bill; and with all due respect to the noble Lord, Lord Lucas, he is also timid about writing it into the Bill. I should like to echo what the noble Lord, Lord Tordoff, said. Although he was speaking in support of the amendment to which his name is attached, he said that he would like to have seen written into the Bill itself a provision stating that this was a reserve power only to be used when everything else had failed. If it has to be used it means that some of the basic principles in the Bill are not working. The local authorities would definitely welcome an amendment to the clause to provide that it is a reserve power. I should like to see this amendment carried today; equally, at the next stage, I should like to see the clause made stronger by a further amendment making clear that it is only to be used as a reserve power.

I know the Minister has stated that it is a reserve power. But as has been said time and again, while it is useful to have statements from the Minister, what is more important is that the face of a Bill should actually carry the provision. I hope the Minister will again make it absolutely clear that the Government regard this as a reserve power only to be used when this type of provision has failed and that he will be able to continue the discussions with a view to producing an amendment to make that clear on the face of the Bill.

3.30 p.m.

Lord Peyton of Yeovil

My Lords, before the noble Lord sits down, I have to say that I absolutely fail to understand his point. How can he claim that the making of a reserve power—only to be used therefore exceptionally—strengthens the Bill? It seems to me to weaken it.

Lord Underhill

My Lords, with the leave of the House, there have been discussions between utilities and the highway associations. I understand that the local authority associations are continuing the discussions. Anything that is written into the Bill is far stronger than a statement made by the Minister. That is really what we want to see done. I should like the Minister to say how, since 6th December, these discussions have progressed and whether there has been any disagreement on this issue. To my mind there has been no disagreement. Therefore the timidity on this matter both of the Government and of the noble Lords, Lord Lucas and Lord Tordoff, in introducing the amendment is something I cannot fully understand.

Lord Brabazon of Tara

My Lords, we discussed this clause both at Committee stage and Second Reading and I have discussed it with representatives of the utilities as well. It is well known that the Government want to use every means at their disposal to reduce traffic congestion and to get the most from existing roads. As my noble friends Lord Nugent and Lord Peyton said utility street works are a major cause of delays. In fact there is no disagreement in the House as to that matter. I am confident that at least some of these delays can be avoided, which would be to the benefit of all road users. Charging would act as a powerful incentive on utilities and others to plan their works so as to reduce the disruption they cause. By limiting their scope, these amendments would significantly weaken the provisions on charging for the occupation of road space during street works. For this reason the Government find them unacceptable.

The first amendment would permit the introduction of any such scheme only where the Secretary of State was satisfied that undertakers were consistently failing to comply with their obligations under this part. It would further limit the scope of any scheme, first, by restricting it to traffic-sensitive streets, and secondly—together with the final two amendments to this clause—by seeking to exclude all emergency works. However, any failure by undertakers to comply with their requirements under the Bill is a matter for the courts, and it would be neither possible nor proper for the Secretary of State to draw a line between acceptable and unacceptable levels of breaches of the law. As. I have said before, there will of course be full consultation with those likely to be affected by it before any charging scheme is introduced. The first regulations prescribing fees under Clause 67 will also have to be approved by Parliament.

We shall consider any proposals put forward by the highway authorities and utilities as to the scope of the charges that may be prescribed. However, we would wish to avoid unnecessarily limiting this new power which has been deliberately drawn wide enough to allow any charging scheme to be targeted at the avoidance of unnecessary delays. Which works should be subject to charges will become apparent after experience with the new arrangements. My noble friend Lord Lucas mentioned exemption of emergency works from charging. Exclusion of emergency works from the charging provisions would provide renewed scope for abuse of the category of emergency works. That abuse is well known at the present time. The street works associated with emergencies must be carried out efficiently and charging would provide an incentive to do so.

The wording of Clause 67 does not mean that a fee will be payable by undertakers in every case. The Secretary of State may not prescribe a scheme or may prescribe different rates of fee which could include free periods for different works. The power to charge would be used where it was considered most likely to achieve reductions in the amount of delay and inconvenience. The scheme could be structured so that the great majority of works not causing any more obstruction than was reasonably necessary would escape charges altogether. As my noble friend Lord Nugent pointed out, utilities could avoid passing charges on to their customers by entering into lane rental type contracts with their contractors. I confirm what my noble friend said about the success of lane rental contracts as concerns government roads.

Lastly, on the point of reserve powers, I say to the noble Lord, Lord Underhill, that it is undesirable to express this power in reserve terms. The amendment illustrates the difficulty of describing the circumstances in which a power would or would not be used. The requirement to have the approval of Parliament to the introduction of a charging scheme will effectively allow a review of the circumstances which have made it necessary to make those charges.

I hope that the House will not agree to these amendments. On strong grounds we believe that this is a useful power to have in the Bill. At the same time I hope that I have been able to give my noble friend some reassurance on the effect of it.

Lord Lucas of Chilworth

My Lords, I am most grateful to noble Lords who have taken part in the debate. I am sure that my noble friends Lord Nugent of Guildford and Lord Peyton of Yeovil would not accuse me of moving away from the lobbies which we have shared on questions of traffic movement. I seek with no lack of timidity to draw a balance between work that has to be undertaken properly and expeditiously and the free movement of traffic. On the question of an emergency, the noble Lord, Lord Tordoff, drew attention to what I said. My noble friend the Minister then suggested that it would be very difficult for the scope of an emergency to be defined. In my heart, I find that a little difficult to accept.

A balance has to be struck. Unless the regulations are most carefully drawn and have the full acceptance of the local authorities and the utilities, the provisions of the Bill will provide not an incentive to get on with work quickly but perhaps more of a disincentive to do certain works because of the definition of "emergency". Nevertheless, I am not prepared this afternoon to invite your Lordships to determine the case that I and the noble Lord, Lord Tordoff, have advanced. I thank my noble friend the Minster for his forbearance in dealing with the matter for a third time. I believe that he has taken account of the feelings which have been expressed and that he has given certain assurances which may later find their way on to the statute book.

In conclusion, I should tell my noble friend the Minister that I accept the fact that no provision should be put into a Bill which obliges the Secretary of State at any time to determine the law; indeed, that is for the courts. No one should seek to take that duty away from them. In the circumstances, I shall leave the matter as it stands. I have taken full account of what has been said both previously and this afternoon and of the points made by my noble friend. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 116 to 118 not moved.]

Clause 69 [Liability for cost of temporary traffic regulation]:

Lord Tordoff moved Amendment No. 119: Page 39, line 17, leave out ("or in consequence of").

The noble Lord said: My Lords, noble Lords who were present on Second Reading may remember that I asked the Minister whether it was intended to charge for loss of revenue from parking meters. He replied that it was not the intention to do so. On that occasion I also asked what was the Government's view on attempts by local authorities to charge utilities for the loss of revenue from such meters. I said that in my view it appeared that a draconian measure was being taken in many areas. The Minister replied that, As regards the lost revenue from parking meters, I assure the noble Lord, Lord Tordoff, that there is no proposal to provide for compensation in such cases".—[Official Report, 20/11/90; col. 671.] The simple purpose of the amendment is to make clear on the face of the Bill that consequential losses, such as meter revenues and road tolls, are not recoverable under the clause. I beg to move.

Lord Brabazon of Tara

My Lords, the amendment would limit the costs recoverable from undertakers in respect of temporary traffic regulation measures which are necessitated by street works. It would exclude costs incurred by a traffic authority or concessionaire "in consequence" of any orders made or notices issued. That could have the effect of excluding, for example, the costs of signing diversions. Clause 69 is based on a recommendation of the Horne Committee and would be weakened unduly by excluding from its scope an important element of the costs which undertakers' works impose on highway authorities.

The amendment is unnecessary as it will be open to an undertaker to challenge any costs which it considers to be unreasonable. Clause 89, as amended, would enable an undertaker to go to arbitration should the parties fail to agree on the level of costs incurred by the authority. In the light of those assurances, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Tordoff

My Lords, I am grateful to the Minister for those reassurances. Nevertheless, I should have thought that if people seek arbitration then the rules should be clearly spelt out for them in legislation. I was somewhat worried that the rules do not appear to be altogether clear in the Bill. It was in that spirit that I moved the amendment. However, I shall read carefully what the Minister said and perhaps we may be able to leave the matter as it stands. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Lord Underhill moved Amendment No. 120: Page 39, line 25, after ("prohibition") leave out ("or").

The noble Lord said: My Lords, this amendment is tabled in the name of my noble friend Lord Clinton-Davis and that of the noble Lord, Lord Tordoff. In moving it I shall speak also to Amendment No. 121 because Amendment No. 120 is merely a small paving amendment to it. Clause 69(2) (b) makes absolutely clear the fact that a street authority can in certain circumstances recover from an undertaker the costs of traffic signing. The existing paragraph states that such a provision applies, in connection with the prohibition or restriction of traffic in order to facilitate street works. The amendment seeks to widen the provision so that it is not just the prohibition or restriction of traffic which is provided for but also the costs of signing a diversionary route. It is such an obvious and sensible amendment that I feel sure the Minister will be able to accept it. I beg to move.

Lord Brabazon of Tara

My Lords, Clause 69 allows a traffic authority or concessionaire, who because of street works makes an order or issues a notice temporarily prohibiting or restricting traffic, to recover from the undertaker, the whole of the costs incurred by them in conjunction with or in consequence of the order or notice". That form of words is wide enough to allow the recovery of any costs incurred by the authority or concessionaire in signing traffic diversions that are in consequence of the prohibition or restriction. Since the ability to recover costs is only activated by the making of an order or the issue of a notice for the temporary prohibition or restriction of traffic, it is unnecessary to include specific reference in subsection(2) to the costs of signing diversions of traffic. In the light of that explanation, I hope that the noble Lord will be assured on the matter and that he will feel able to withdraw the amendment.

Lord Underhill

My Lords, I have taken very careful note of the Minister's reply. I understood him to say that the words, prohibition or restriction of traffic include a diversionary route. I believe that the Minister quite definitely said that. I understand that the utilities are quite happy with the provision which I have put forward. However, in view of the Minister's assurance that the wording covers the signing of diversionary routes, I have no hesitation in withdrawing the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 121 not moved.]

Clause 70 [Liability for cost of use of alternative route]:

Lord Lucas of Chilworth moved Amendment No. 122: Page 39, line 26, after ("is") insert ("under any enactment").

The noble Lord said: My Lords, this amendment is also tabled in the name of the noble Lord, Lord Tordoff. In moving it, I shall speak also to Amendment No. 123. The amendment proposed may be perceived as being slightly mischievous. However, its purpose is to follow more closely the terms of the Highways Act 1980 which make clear that, in the case of a restriction, there must be a formal statutory order before an undertaker is fixed with the liability to indemnify the highway authority.

It is difficult to appreciate why there should be a departure from the position as set out in that Act. The proposal to give the street authority and the undertaker an opportunity to discuss and agree what is required before works are carried out—that is, works for which the undertaker will be paying—seems to me to be eminently reasonable.

I said in opening that the amendment may seem to be "slightly mischievous". I did so because one could envisage a situation where no discussion has taken place and where the highway authority has erected signs or caused diversions to be made along roads which it may desire to put into a better state. Consequently, it would be able, unfairly, to charge the undertaker for any further damage which may occur.

One has to appreciate the fact that when one is actually in the field, on the road so to speak, it is an individual working in a supervisory capacity—such as a foreman—who may determine such matters rather than an august body undertaking such discussions. Therefore, the amendments seek to bring some reasonableness into the matter by introducing the provision for discussions which will ensure that potential liability is dealt with before the works are carried out. I beg to move.

Lord Tordoff

My Lords, this is a simple amendment. As noble Lords will be aware, the clause as a whole is about the requirement on a utility to meet the cost of strengthening or repairing a road damaged as a result of a diversion. The cost is to be borne by the utilities. It is not unreasonable that the utilities should know what the cost will be before they embark on the work. It is in that spirit that the amendment is moved.

Lord Clinton-Davis

My Lords, in addressing the first amendment, I do not understand why it is necessary to incorporate the phrase "under any enactment". I have heard nothing from the noble Lord, Lord Lucas, which provides any further and better particulars about that point.

On the second amendment, I agree with both noble Lords. The requirement is not unreasonable. We should underline the fact that the decision concerning the works to be undertaken should rest with the highway authority. It already has two limitations imposed upon how it can act. In subsection (1) there is already the reference to costs being reasonably incurred by highway authorities. That is buttressed by the arbitration provisions which have been inserted into the Bill. I am most grateful, as I have said before, to the Minister, for agreeing to that proposition which I made earlier in the proceedings.

I do not understand why it is necessary to incorporate the words "under any enactment", and perhaps the noble Lord will cast some light on that point when he replies.

Lord Brabazon of Tara

My Lords, these two amendments seek in different ways to place limits on the powers of highway authorities under Clause 70. The first would restrict the highway authority's ability to recover costs it has incurred in association with the use of an alternative route as a result of street works. It attempts to do so by limiting the undertaker's liability to cases where use of a highway is restricted "under any enactment", a form of words used in Section 60 of the Highways Act 1980, which Clause 70 will replace, as my noble friend said.

The inclusion of the words "under any enactment" is unnecessary since the use of a highway can be lawfully restricted or prohibited only by means of a temporary traffic order or similar instrument provided for in legislation. That answers the first amendment.

The second amendment would insert a new subsection. That would provide that, where a highway authority proposes to carry out strengthening or repair works to a highway used as an alternative route during street works, it must first consult the undertaker whose street works, it must first consult the undertaker whose street works led to the diversion.

However, the advance notice requirements under Clause 48 will in practice provide an opportunity for early discussion of planned street works, and a responsible highway authority would inform the undertaker concerned before carrying out consequential maintainance works on an alternative route. It would not be appropriate also to require consultation with the undertaker on the specific nature of the works of strengthening or repair which fall clearly within the responsibilities of the highway authority, the point by the noble Lord, Lord Clinton-Davis.

In the last resort, if there are unresolved disputes over claims for payment under this clause, there is provision for their determination by arbitration. I am grateful to the noble Lord, Lord Clinton-Davis, for reminding us of that point and for his word of thanks for the government amendment which brought about that provision. For those reasons, we cannot agree to my noble friend's amendment.

Lord Lucas of Chilworth

My Lords, I am most grateful to my noble friend the Minister, especially for explaining the purpose of the first amendment. I am also grateful to him for drawing attention to the provisions of Clause 48 in respect of the second amendment. He referred to a "responsible authority". Earlier I said that there was a sense of mischievousness in the second amendment when I suggested that there may be some authorities that are less than responsible. However, he has put the matter more firmly into perspective. I am grateful to him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 123 not moved.]

Lord Brabazon of Tara moved Amendment No. 124: Page 40, line 1, leave out subsection (3).

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

Clause 127 [Liability for cost of use of alternative route]:

Lord Brabazon of Tara moved Amendment No. 125: Page 72, line 5, leave out subsection (4).

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

Clause 71 [Contributions to costs of making good long-term damage]:

Lord Clinton-Davis moved Amendment No. 126:

Page 40, line 27, at end insert: ("(6) If the Secretary of State has not made regulations under this section within three years of the commencement of this Part he shall lay before each House of Parliament an report setting out his reasons for not doing so.").

The noble Lord said: My Lords, I move the amendment because we are seeking to make it mandatory for the Secretary of State to make a report to Parliament if, within three years of the commencement of Parts III and IV, he has not made regulations under Clause 71. That report would give him an opportunity to explain why he has declined to do so.

Clause 71 makes provision for the Secretary of State to make regulations requiring the utilities to make payments to the street authority concerning costs incurred by the authority when it reconstructs or resurfaces a street. The objective is to provide the way by which street authorities may be compensated for the long-term damage which may be done to streets by excavation and street work activities undertaken by the utilities.

The question of cumulative long-term damage is a vexed and controversial one. Indeed, it merited a subject of its own in the Horne Report. The review undertaken by Horne came to the conclusion that it would be premature to embark upon a general system of compensating street authorities for long-term damage: until experience showed how successful the proposals that we have made in this report for an overall improvement of reinstatement standards have been. For this reason we do not recommend any compensation for possible long-term damage, although we do regard as important a monitoring of the situation as it develops, using assessment procedures such as those discussed"— That refers to this chapter— We therefore recommend that, after experience has been gained, a review should be made of the way in which the formal specifications and the warranty periods have operated in order to assess the extent to which the arrangements have succeeded in monitoring, limiting and correcting structural damage".

The Government accepted that recommendation, but they thought that the necessary powers should be included in legislation to allow undertakers to be required to pay the costs of making good long-term damage to the road, if it was shown that such arrangements were warranted. So we have Clause 71 included in the Bill. I am informed that the local authority associations welcome that provision, combined with the requirement that the first set of regulations made under the clause will be subject to the affirmative resolution procedure.

I understand, and no doubt the Minister will be able to confirm this position, that officials from his department have discussed with representatives of the HAUC arrangements for monitoring the impact of the Bill. I understand that the arrangements are proceeding satisfactorily. I want to stress that the Home review included a second recommendation on that very issue which is not referred to in the Notes on Clauses prepared by the Department of Transport and helpfully provided by the Minister.

Home recommended: Existing procedures for assessing the residual life of pavements and for the assessment of maintenance needs should be exploited to monitor the effects of utility reinstatement on road damage and maintenance needs and costs". Then the report went on: We see a need for planned fundamental research on the problems of reinstatement including field tests on the efficacy of alternative materials and working practices. But since the variables and the factors affecting performance are extraordinarily wide, such research needs to be carefully planned and guided … so that it may be concentrated on the most important aspects". Again the Government accepted the recommendation; they accepted the need for the sort of research contemplated by Home in the area we are discussing. What I should like to know from the Minister—I think that this amendment provides a suitable opportunity which I hope he will take—is where progress on this recommendation stands. In the context of the controversial nature of this issue when it was originally proposed, that is important so far as the local highway authorities are concerned.

In putting forward this amendment I am not seeking to compel the Secretary of State to make regulations under the clause. What I am seeking to do is to ensure that the area we are considering is not forgotten or overlooked. The amendment would simply require the Secretary of State to report on progress three years after the commencement of this part of the Bill. Having regard to the controversy to which this gave rise and the importance of the matter so far as local highway authorities are concerned, I think that is a perfectly reasonable request. I beg to move.

4 p.m.

Lord Brabazon of Tara

My Lords, the noble Lord, Lord Clinton-Davis, is quite correct when he says that we are on a somewhat controversial issue in the claims that have been made that openings in the road, however well they are reinstated, cause long-term damage to the structure of the road. The Horne Report recommended that existing procedures for assessing the residual life of pavements should be used to monitor the effect of utility reinstatements on road damage. I can confirm to the noble Lord that this is currently being done. It also proposed that the new specifications for reinstatements should be monitored to assess to what extent they succeed in limiting structural damage.

Clause 71 has been included to allow the introduction of a scheme for undertakers to contribute to the costs of highway authorities in rectifying such damage. The Secretary of State does not intend to make regulations requiring contributions from undertakers until the results are known of research into long-term damage to the structure of streets caused by excavation works. It will also be prudent to allow some time to evaluate the effects of the reinstatement specifications in limiting long-term damage to roads. A new compensation scheme would not in any case be introduced before full consultations have been conducted with those likely to be affected by it.

I can confirm to the noble Lord that the department has been consulting the Highway Authorities and Utilities Committee about the ongoing research into the link between utility works and long-term damage to roads. A review of the effect in practice of the new reinstatement specifications will be undertaken in association with the Highway Authorities and Utilities Committee. Therefore, I hope that I can satisfy the noble Lord that the use of the power under Clause 71 will be kept under continuous review.

In those circumstances, this amendment to insert an additional requirement to report on the reasons for not introducing a scheme would, I submit, serve little purpose. This area will certainly not be forgotten or overlooked. Of course it will be open to the noble Lord and others in this House and in another place to ask questions about how we are getting on in three years' time, or before or after.

Lord Clinton-Davis

My Lords, when the Minister says that the amendment would serve little purpose, that infers that it may serve some purpose. If he implies that I might forget to raise certain questions in three years' time, that is perfectly possible, most particularly as this badge says that I actually expire in three years' time. It gives me only until June 1993. I understand that some noble Lords have until 1995 and some have no limitation at all. Therefore, there is a possibility that it may not be open to me to raise such questions.

What I am more concerned with is whether the Minister, or more likely his successor, will remember. I cannot see that it places him under any undue obligation to make a report in the circumstances reflected in the amendment; nor has the Minister indicated why it would impose any undue burdens on him to do that. But he has so far declined, and no doubt it is a matter that will be pursued elsewhere. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 [Records of location of apparatus]:

Lord Brabazon of Tara moved Amendment No. 127: Page 41, line 6, at end insert: ("( ) The Secretary of State may by order—

  1. (a) repeal or modify any enactment made or passed before the commencement of this Part which makes provision for the keeping of records of apparatus and appears to him to be superseded by or otherwise inconsistent with the provisions of this section; and
  2. (b) make provision for applying in relation to records compiled under any such enactment the provisions of subsections (2) to (5) above and section 73 below.
An order under this subsection shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: My Lords, with the leave of the House I should like to move Amendment No. 127 and speak to Amendment No. 128. These amendments are necessary in order to allow existing requirements on undertakers to keep records of their buried apparatus to be modified where necessary. Clause 72 places a new duty on all undertakers to keep up-to-date records of their apparatus in streets in a form and manner to be prescribed in regulations. In order to ensure consistency between the statutory requirements as they apply to apparatus in streets, it will therefore be necessary to amend, where appropriate, the various existing requirements which are to be found in utilities' enabling legislation or licences. These amendments will enable this to be done more easily, by order. They will also allow existing records to be treated as having been compiled in accordance with the provisions of the Bill where this is appropriate. I beg to move.

Lord Tordoff

My Lords, do I understand that the Minister intends to undertake amendments to the appointments or licences, because the utilities are obviously somewhat worried by what is a perfectly sensible provision? I think noble Lords on all sides of the House would welcome the requirements for proper records to be kept as being a fundamental part of this whole process. One of the problems in the past has been that no one knew what lay under the road surface at any given point, and therefore this would be a step forward. However, the undertakers are a little worried that they might find themselves having to provide two sets of records —one under their appointments or licences and one under Clause 72. If the Government could reassure them on that subject it would be a great help.

Lord Clinton-Davis

My Lords, this is a perfectly reasonable amendment, particularly when one takes into account how important it is that there should be consistent records maintained right across the various utilities. The amendment is drafted in enabling form, and therefore the Secretary of State is permitted rather than required to repeal or modify existing legislation. Is the Minister able to confirm that it is his intention to use the powers provided by this clause in all circumstances where records are currently maintained in a different form under existing legislation?

Lord Brabazon of Tara

My Lords, the problem that we face is that there are a variety of existing statutory requirements for the keeping of records that apply to different utilities. For example, Regulation 36 of the Electricity Supply Regulations 1988 and Sections 165 and 166 of the Water Act are examples; but they are inconsistent, or silent, on matters such as the scaling of maps, the recording of service connections and the making available of records for inspection. Obviously it is important that this should be done on a consistent basis.

In reply to the noble Lord, Lord Tordoff, we shall consult the utilities before modifying any existing requirements. The practical consequences of having two different standards will be fully explored, and I hope that it will not be necessary for the utilities to continue to keep two different standards. I hope that that also answers the point which the noble Lord, Lord Clinton-Davis, raised.

On Question, amendment agreed to.

Clause 129 [Records of location of apparatus]:

Lord Brabazon of Tara moved Amendment No.128: Page 73, line 9, at end insert: ("(6) The Secretary of State may by order—

  1. (a) repeal or modify any enactment made or passed before the commencement of this Part which makes provision for the keeping of records of apparatus and appears to him to be superseded by or otherwise inconsistent with the provisions of this section; and
  2. (b) make provision for applying in relation to records compiled under any such enactment the provisions of subsections (2) to (5) above and section 130 below.
An order under this subsection shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

Clause 76 [Works for road purposes likely to affect apparatus in the street]:

Lord Brabazon of Tara moved Amendment No.129: Page 42, line 41, leave out from beginning to ("are") and insert: ("( ) This section applies to works for road purposes other than major highway works (as to which see section 77 below). ( ) Where works to which this section applies").

The noble Lord said: My Lords, in moving Amendment No. 129 I shall speak at the same time to Amendment No. 131. These drafting amendments make clear the relationship between the clause on works for roads purposes and the following clause on major highway works. It is provided that where an undertaker's apparatus is affected by major highway works, the provisions of Clause 77 are to be followed. In such cases the requirements contained in Clause 76 could conflict with the provisions. The amendment therefore provides that where works for roads purposes are also major highway works, Clause 76 shall not apply.

Lord Underhill

My Lords, the Minister says that these are drafting amendments. From the information I have, they go beyond mere drafting. The Minister referred to the interaction between Clauses 76 and 77. I shall therefore refer to each of those clauses.

Clause 77 deals with "diversionary works", the circumstances in which utility apparatus has to be moved because of highway authority works, such as the realignment of a junction. The clause provides for cost sharing in such circumstances between the street authority and the undertaker. Clause 76 provides for a utility to instruct the street authority to take steps to protect utility apparatus when undertaking road works which are likely to affect that apparatus.

I understand that concern has been expressed by local highway authorities that, having reached an agreement with the street authority under Clause 77, including arrangements for the protection of utility apparatus while work is being undertaken, a utility could nevertheless issue further additional requirements under the provisions of Clause 76.

As I understand it, the principle behind this government amendment is supported by the local authority associations. However, there is one significant difficulty with the approach that has been adopted. The intention seems to be clearly that the utility should not be able to issue requirements under Clause 76 if the works in question have been subject to an agreement under Clause 77. I understand that problems could arise as a result of the use of the phrase "major highway works" both in Clause 77 and now in the new subsection (1) of Clause 76.

I understand that the whole question of diversionary works is subject to detailed negotiation between the highway authorities and the utilities through the Highway Authorities and Utilities Committee to which we have referred on previous occasions. The conclusion of satisfactory negotiations on this very controversial issue represents one of HAUC's major achievements. The HAUC diversionary works code of practice refers to "highway works" rather than "major highway works". The code of practice defines "highway works" as, involving any of the following or a combination thereof—widening, realignment and construction, alterations to carriageway width and the position of kerb lines". I would appreciate the Minister's confirmation that the term "major highway works" in both Clauses 76 and 77 is intended to encompass all works which the diversionary works code of practice defined as constituting "highway works". In the amendment the words "major highway works" appear: the code of practice drawn up by the joint committee makes it absolutely clear that it refers to highway works. I should like clarification from the Minister on that important point.

Lord Brabazon of Tara

My Lords, I shall study in detail what the noble Lord has said. The code of practice will reflect the wording of the Bill on "major highway works", but obviously I wish to see whether I can add anything and perhaps write to the noble Lord.

On Question, amendment agreed to.

4.15 p.m.

Lord Lucas of Chilworth moved Amendment No. 130: Page 42, line 42, at end insert:

  1. ("(a) give the person to whom the apparatus belongs not less than 7 working days notice of its intention to commence such works, giving all relevant particulars of the works, and
  2. (aa) give such person reasonable facilities for monitoring the execution of the works, and").

The noble Lord said: My Lords, Clause 76 was introduced by the Government in Committee. It resulted from genuine concern among the utilities about the protection of their effects in the streets. There remains outstanding a matter of practical importance under the clause as amended.

It is reasonable, as the Bill requires, that undertakers should give notification to highway authorities if they are to undertake certain works involving the highway. It seems equally fair therefore that in order to protect their equipment and their installations, the utilities should have advance warning of the highway authority's intentions to carry out works which may affect or upset the equipment of the utilities.

All that the amendment does is to provide for a reciprocal arrangement. It is necessary, on a practical basis, for utilities and undertakings to formulate special requirements that may be necessary under the clause, not only to protect their apparatus but also to secure access to it if there were an emergency and for them to monitor the work being undertaken by the highway authority which may affect such apparatus.

The amendment causes no dilution of the effect of the clause which is generally welcome. It provides a reciprocal arrangement that is necessary as a matter of practicability. I know that the Minister and his officials have received notice of the utilities' concern in this area. Discussions have taken place and it would not be improper for me again to reiterate my thanks to officials for the amount of work that has been done to meet the utilities, not only on this subject but on other parts of the Bill. I beg to move.

Lord Clinton-Davis

My Lords, I have no quarrel with the spirit of what the noble Lord, Lord Lucas, seeks to achieve. However, as drafted the amendment gives rise to a number of problems which I shall try to illustrate. First, when the Minister introduced the new clause in Committee he sought to emphasise that he intended to reproduce in the Bill, as concerns works for road purposes, the duties that were prescribed in Clause 62 on street works. However, that clause does not set out any statutory notice period. Therefore the amendment would go beyond what the Minister had indicated he intended to do. I wanted to make that point, although the noble Lord, Lord Lucas, is perfectly entitled to say that the situation as it obtains at the moment is unsatisfactory.

The second point I would make is that, as far as notice periods for streetworks are concerned, Clause 49 makes the provision that the normal notice period of not fewer than seven working days should obtain, but it permits different periods of notice to be prescribed for different descriptions of work, and the cases to be prescribed in which no notice at all is required. If notice periods were to be set out in relation to Clause 76, similar provisions to those contained in Clause 49 would be necessary.

Many works for road purposes likely to affect apparatus are the equivalent of the type of utility works which it has been accepted should be subject to three rather than seven days' notice. Moreover, there is a substantial volume of extremely minor highway authority works which the local authority associations would submit should not be subject to a statutory notice requirement.

The whole question of what categories of highway authority works should be subject to formal notice and what notice periods should apply to them is being examined presently by the HAUC notice periods working party.

It follows from that that we should allow this matter to be governed by the code of practice to be determined by the working party. If the Government deem it appropriate that formal notice periods should be set out in the Bill, a much more sophisticated set of provisions would be needed than those which are set out in these amendments. For those reasons, I would urge caution about them.

Lord Tordoff

My Lords, in response to the noble Lord, Lord Clinton-Davis, I would merely say that the noble Lord, Lord Lucas, and I are very unsophisticated chaps and if the Government, with their great sophistication, can come up with a better amendment, we should be only too pleased to support it.

Lord Brabazon of Tara

My Lords, I cannot promise to come up with an amendment on this particular issue.

Clause 76 requires a street authority carrying out works for road purposes to give any person with apparatus likely to be affected the opportunity to monitor the works. The street authority must also comply with the undertakers' requirements for the protection of the apparatus that are reasonably practicable having regard to the time when they are made. No time limit for consulting affected undertakers is given. This amendment would require an authority executing such works to give seven working days' notice to an undertaker whose apparatus the works were likely to affect.

However, it is intended that regulations made under Clause 47 will require works for road purposes to be entered on the street works register, thereby giving undertakers adequate advance warning of works which could affect them. It is therefore unnecessary to introduce a notice requirement into Clause 76.

I am grateful to my noble friend Lord Lucas and to the noble Lord, Lord Clinton-Davis, for pointing out that consultations are continuing in the Highway Authorities and Utilities Committee. I agree with the noble Lord, Lord Clinton-Davis, that that is in fact the best way forward in this matter.

Lord Lucas of Chilworth

My Lords, I am most grateful to my noble friend the Minister. I intend to let the matter rest there as the noble Lord, Lord Tordoff, has almost said it all.

I accept what the noble Lord, Lord Clinton-Davis, said. I have no wish to go beyond what the Government intended and am quite happy, as the noble Lord, Lord Clinton-Davis, suggested, to leave the matter to the working party on codes of practice to see what they come up with.

This has been an interesting debate which I think has probably secured the interest of everybody involved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 133 [Works for road purposes likely to affect apparatus in the road]:

Lord Brabazon of Tara moved Amendment No. 131 Page 75, line 4, leave out from beginning to ("are") and insert: ("( ) This section applies to works for road purposes other than major works for road purposes (as to which see section 134 below). ( ) Where works to which this section applies").

The noble Lord said: I have already spoken to this amendment with Amendment No. 129. I beg to move.

On Question, amendment agreed to.

Clause 78 [Sharing of cost of necessary measures]:

Lord Brougham and Vaux moved Amendment No. 132: Page 44, line 2, after third ("works") insert ("82 per cent. of") The noble Lord said: My Lords, in moving Amendment No. 132 standing in my name, I should also like to speak to Amendment No. 133. These are probing amendments.

I understand that the utilities and the highway authorities have together agreed the proportion of allowable costs which each will bear. These are enshrined in the draft code of practice prepared by HAUC. The purpose of the amendment is to show the agreed proportions on the face of the Bill. I beg to move.

Lord Clinton-Davis

My Lords, while it is true that this is a matter which has been discussed and on which agreement has been reached as far as the diversionary works code of practice is concerned, it is appropriate that the matter should be written on the face of the Bill, which is what the noble Lord is contending. I do not oppose it because I want to undo the working party's recommendations, but surely this is a matter where the percentage figures reached at the present time are likely to be varied at a future date. That would mean that we should have to have primary legislation to do that. With respect to the noble Lord, I feel that that is unnecessary. Consequently, I should have thought the best way of proceeding with this would be by way of regulations, which I suspect the Minister has in mind.

I should like the Minister to give the House an assurance that the regulations which would be issued under Clause 78 will implement the agreement reached in the working party. I am almost convinced that the answer must be in the affirmative.

Lord Brabazon of Tara

My Lords, as my noble friend said when moving the amendment, this would include on the face of the Bill the agreed proportions in which the costs of diversionary works associated with major highway works are to be borne by the authorities and the undertakers. Following a suggestion in the Government's response to the Horne Report, lengthy negotiations took place between the parties concerned. It was eventually agreed that 82 per cent. of the costs of diversionary works should be borne by the authority promoting the works and 18 per cent. by the undertaker affected by them. The Government have made clear that the proportions of 82 per cent. and 18 per cent. will be prescribed in the first regulations to be made under this clause. I can give that assurance to my noble friend and to the noble Lord, Lord Clinton-Davis.

However—and here I agree with the noble Lord, Lord Clinton-Davis—by including this provision on the face of the Bill, the amendment would have the unwelcome effect of making it very difficult to alter these proportions if it proved necessary or desirable to do so at a future date. The ability to prescribe these in regulations would retain a degree of flexibility which has been repeated elsewhere in the Bill.

With that assurance I hope that my noble friend will agree to withdraw his amendments.

Lord Tordoff

My Lords, before the noble Lord sits down, I take it that any subsequent variation would be anticipated to be by agreement between the parties; but if there were no agreement, would the arbitration provisions apply? I wonder whether the Minister could answer that.

Lord Brabazon of Tara

My Lords, I cannot give a categorical answer to that now. I would rather reflect on it. My impression is that they would. I hope that any change in the proportions would be made by agreement between the parties. I understand the negotiations were long and in no way easy, as may have been the impression given this afternoon. But I should prefer to check on the point made by the noble Lord.

Lord Brougham and Vaux

My Lords, I should like to thank the noble Lord, Lord Clinton-Davis, for his initial support for my amendment. I quite understand the problem that if something goes wrong we should need more legislation. That is the last thing we want, with the burden we have had in the past few years.

I thank my noble friend for his assurances. I am sure that everybody would be satisfied with the assurances that have been given. This has been a useful debate, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133 not moved.]

4.30 p.m.

Lord Brabazon of Tara moved Amendment No. 134: Page 44, line 20, leave out subsection (4).

The noble Lord said: My Lords, I spoke to Amendments Nos. 134 and 135 with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

Clause 135 [Sharing of cost of necessary measures]:

Lord Brabazon of Tara moved Amendment No. 135: Page 76, line 28, leave out subsection (4).

On Question, amendment agreed to.

Clause 79 [Highway authorities, highways and related matters]:

Lord Brabazon of Tara moved Amendments Nos. 136 to 139: Page 44, line 31, leave out from ("highway") to end of line 32. Page 44, line 40, at end insert: ("or works of any corresponding description executed in relation to a street which is not a highway."). Page 44, line 42, leave out ("for road purposes"). Page 44, line 43, at end insert ("in relation to a highway which consists of or includes a carriageway").

The noble Lord said: My Lords, with the leave of the House I should like to move Amendments Nos. 136 to 139 en bloc and at the same time speak to Amendments Nos. 140 and 141. The amendments are necessary in order to correct an anomaly under Clause 79. They extend the meaning of "works for road purposes" to include maintenance and improvement works on all streets. Under Clause 79 as presently written works of that nature in highways which are not streets or which do not include a carriageway would be excluded from the controls under the Bill. That would have resulted in utilities being denied the protection afforded to them under Clause 76 where such works are carried out, for example, in private access roads or pedestrian zones. I beg to move.

On Question, amendments agreed to.

Clause 136 [Roads authorities, roads and related matters]

Lord Brabazon of Tara moved Amendment Nos. 140 and 141: Page 77, line 5, leave out ("for road purposes"). Page 77, line 6, at end insert ("in relation to a road which consists of or includes a carriageway").

On Question, amendments agreed to.

Clause 86 [Works affecting level crossings or tramways]

Lord Underhill moved Amendment No. 142: Page 48, line 20, at end insert ("or guided busway").

The noble Lord said: My Lords, in moving Amendment No. 142 I should like to speak to Amendment No. 143, also in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff, and to government Amendments Nos. 172 to 175.

The purpose of the amendments is to ensure that the provisions of Clause 86 apply in relation to guided busways as well as to tramways. Noble Lords will recall that at Committee stage when the Government moved an amendment replacing the phrase "tramline" with "tramway" a query was raised as to whether the clause would cover guided busways as well as tramways. The amendments that I have put forward endeavour to resolve the problem by referring specifically to guided busways in Clause 86. The government amendments deal with the problem by including a definition of tramway in Clause 97, which is the definitions clause, and in the equivalent Scottish clause. That is helpful but there is one problem which is raised by the Government's definition and on which I should appreciate the views of the Minister.

The problem arises from a fundamental difference between tramways and guided busways. Both tramways and guided busways can be located along a conventional road, for example, along a central reservation. In many locations, when a tram is not using the tramlines the tramway can be occupied by any other road vehicle. That is not generally the case with a guided busway where the nature of the construction prevents it. Presumably, in deciding to incorporate guided busways within the definition of tramways the Government and their lawyers have considered that difference, but confirmation from the Government on that point would be extremely helpful.

I understand that the National Joint Utilities Group also feels that without a definition of a guided busway it is difficult to decide whether to support the amendment. The government amendments, with their definition, are extremely helpful but I should appreciate the Government's views on the problem that I have raised. I beg to move.

Lord Tordoff

My Lords, although I have added my name to the amendment I feel that the Government's amendments are more all-embracing. Subject to the reservations raised by the noble Lord, Lord Underhill, I believe that they are to be preferred to our amendments.

I was interested to hear the noble Lord, Lord Underhill, say that on many occasions when a tram is not using the tramlines the tramway can be occupied by another road vehicle. I hope that the converse is also true. It would be unwise for a vehicle to occupy a tramway when a tram is using it.

The utilities are right to say that there is a weakness in our amendment in that we do not spell out what a guided busway is. Because the Government's amendments are more all-embracing noble Lords would be wise to support them.

Lord Brabazon of Tara

My Lords, naturally I feel that the definition contained in the Government's amendments is better than that proposed by the noble Lord. Our definition of tramway is considered wide enough to embrace trams, trolley vehicles and street-running light railway systems as well as guided busways.

I can confirm to the noble Lord, Lord Underhill, that the definition of tramway in the government amendments meets his concerns. I hope that when we come to the government amendments they will be accepted.

Lord Underhill

My Lords, with that helpful explanation I beg leave to withdraw the amendment. I echo the views of the noble Lord, Lord Tordoff, and when we come to the government amendments we shall support them.

Amendment, by leave, withdrawn.

[Amendment No. 143 not moved.]

Clause 87 [Power of street authority to undertake street works]:

Lord Brabazon of Tara moved Amendments Nos. 144 to 146: Page 49, line 11, after ("authority") insert ("or district council"). Page 49, line 12, after ("authority") insert ("or council"). Page 49, line 17, leave out ("street authority") and insert ("authority or council").

The noble Lord said: My Lords, with the leave of the House I should like to move Amendments Nos. 144 to 146 and also speak to Amendments Nos. 147 to 149. The amendments build on an amendment that I moved at Committee stage in response to a point raised by the noble Lord, Lord Underhill, at Second Reading. They extend to non-metropolitan district councils the right to carry out street works on behalf of an undertaker. That will allow the direct services organisations of all district councils to tender for work if invited to do so by undertakers. In many cases non-metropolitan district councils which are not themselves street authorities act as agents for local highway authorities for the maintenance of roads. Where such councils have expertise in excavation and reinstatement work it is only right that they should be allowed to make it available to utilities on a commercial basis. I beg to move.

Lord Clinton-Davis

My Lords, I should like to place on record my appreciation of the way in which the Minister has responded to the representations which have been made to him, particularly by the Association of District Councils. His response in putting down the amendments is eloquent testimony to that.

On Question, amendments agreed to.

Clause 144 [Power of road works authority to undertake road works]:

Lord Brabazon of Tara moved Amendments Nos. 147 to 149: Page 81, line 11, after ("authority") insert ("or district council"). Page 81, line 12, after ("authority") insert ("or council"). Page 81, line 17, leave out ("road works authority") and insert ("authority or council").

On Question, amendments agreed to.

Clause 89 [Recovery of costs or expenses]:

Lord Brabazon of Tara moved Amendment No.150: Page 49, line 39, at end insert: ("( ) 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 by arbitration. 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 71 (contributions to cost of making good long-term damage to the street).").

The noble Lord said: My Lords, I spoke to Amendment No. 150 with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

Clause 146 [Recovery of costs or expenses]:

Lord Brabazon of Tara moved Amendment No.151: Page 81, line 39, at end insert: ("( ) 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 by arbitration. 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 128 (contribution to the cost of making good long-term damage to the road).").

The noble Lord said: My Lords, I spoke to the amendment with Amendment No. 50. I beg to move.

On Question, amendment agreed to.

Clause 90 [Service of notices and other documents]:

Lord Brabazon of Tara moved Amendment No.152: Page 49, line 41, leave out from ("form") to end of line 35 on page 50 and insert: ("( ) The Secretary of State may make provision by regulations as to the manner of service of notices and other documents required or authorised to he served for the purposes of this Part.").

The noble Lord said: In moving Amendment No. 152 I should also like to speak to Amendment No. 153. The amendments replace the detailed provisions in subsections (2) to (6) of Clause 90 which lay down requirements concerning the service of notices and other documents under this part of the Bill. The requirements are similar to those contained in the 1950 Act and are mainly concerned with the detail of how written documents are to be served. Since the great majority of transactions will in future be required to be carried out electronically by means of the computerised street works register a substantial provision of this kind is not strictly necessary. In its place there will be a simple and flexible regulation-making power. That will allow requirements better to reflect technological developments and practice now and in the future as well as simplifying the statute. I beg to move.

On Question, amendment agreed to.

Clause 147 [Service of notices and other documents]:

Lord Brabazon of Tara moved Amendment No.153: Page 81, line 41, leave out from ("form") to end of line 36 on page 82 and insert: ("( ) The Secretary of State may make provision by regulations as to the manner of service of notices and other documents required or authorised to he served for the purposes of this Part.").

On Question, amendment agreed to.

Clause 94 [Exclusion of inconsistent special enactments, &c]:

Lord Brabazon of Tara moved Amendments Nos. 154 to 156: Page 52, line 6, at end insert: (4A) The Secretary of State may by order amend or repeal, or make such provision as he thinks fit for preserving the effect of, any special enactment passed or made before the commencement of this Part (not being an enactment to which subsection (1), (2) or (3) applies) which proceeds by reference to any provision of the Public Utilities Street Works Act 1950 or any other enactment repealed by this Act. Subject to any order under this subsection, any such enactment shall continue to have effect as if the provision referred to had not been repealed."). Page 52, line 7, leave out subsection (5) and insert: ("(5) In this section "special enactment" includes a public general enactment—

  1. (a) 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, or
  2. 1097
  3. (b) to the extent that it is incorporated or applied for the purposes of a special enactment.").
Page 52, line 11, leave out ("subsection (4)") and insert ("this section").

The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 154 to 156 inclusive and speak to Amendments Nos. 157 to 171. This group of amendments extends the provision relating to exclusion of inconsistent enactments to cover references to the 1950 Act which contain a wide variety of certain hybrid public general Acts. The revised Clause 94 would empower the Secretary of State to make orders amending, repealing or preserving the effect of any special enactment in which such reference is made. This would enable references to the 1950 Act to be dealt with as appropriate to preserve their effect after the Bill has become law.

Amendments Nos. 154 to 163 contain the order-making power, and Amendments Nos. 155 to 164 will allow private provisions of hybrid Acts to be treated as special enactments for the purpose of this clause. Amendments Nos. 156 and 165 will apply the negative resolution procedure and the provision of Schedule 5 to orders made under this power. There are six minor consequential amendments to Schedule 5 and the Scottish equivalent, Schedule 7. These are drafting amendments which correct or insert appropriate references to the main clause. I beg to move.

On Question, amendments agreed to.

Schedule 5 [Procedure for making orders under s.94]:

Lord Brabazon of Tara moved Amendments Nos. 157 to 162: Page 99, line 28, leave out ("(exclusion of inconsistent enactments, &c.)") and insert ("(effect of Part III on existing special enactments)"). Page 100, line 2, column 1, after ("Order") insert ("under section 94(4) (a)"). Page 100, line 6, column 1, after ("Order") insert ("under section 94(4) (b)"). Page 100, line 9, column 1, after ("Order") insert ("under section 94(4) (c)"). Page 100, line 12, column 1, after ("Order") insert ("under section 94(4) (d)"). Page 100, line 16, at end insert: ("Order under section 94(4A) amending or repealing or preserving effect of enactment referring to repealed enactment Any person whose interests are affected by the proposed provision.")

On Question, amendments agreed to.

Clause 151 [Exclusion of inconsistent special enactments, &c.]:

Lord Brabazon of Tara moved Amendments Nos. 163 to 165: Page 84, line 12, at end insert: ("(4A) The Secretary of State may by order amend or repeal, or make such provision as he thinks fit for preserving the effect of, any special enactment passed or made before the commencement of this Part (not being an enactment to which subsection (1), (2) or (3) above applies) which proceeds by reference to any provision of the Public Utilities Street Works Act 1950 or any other enactment repealed by this Act. Subject to any order under this subsection, any such enactment shall continue to have effect as if the provision referred to had not been repealed."). Page 84, line 13, leave out subsection (5) and insert: ("(5) In this section "special enactment" includes a public general enactment—

  1. (a) 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, or
  2. (b) to the extent that it is incorporated or applied for the purposes of a special enactment.").
Page 84, line 17, leave out ("subsection (4)") and insert ("this section").

On Question, amendments agreed to.

Schedule 7 [Procedure for making orders under s.151]:

Lord Brabazon of Tara moved Amendments Nos. 166 to 171: Page 104, line 20, leave out ("(exclusion of existing enactments, &c.)") and insert ("(effect of Part IV on existing special enactments)"). Page 104, line 36, column 1, after ("Order") insert ("under section 151(4) (a)"). Page 104, line 40, column 1, after ("Order") insert ("under section 151(4) (b)"). Page 104, line 43, column 1, after ("Order") insert ("under section 151(4) (c)"). Page 104, line 46, column 1, after ("Order") insert ("under section 151(4) (d)"). Page 104, line 50, at end insert: ("Order under section 151(4A) amending or repealing or preserving effect of enactment referring to repealed enactment Any person whose interests are affected by the proposed provision.")

On Question, amendments agreed to.

Clause 97 [Minor definitions]:

Lord Brabazon of Tara moved Amendment Nos. 172 and 173: Page 53, line 20, leave out ("paragraph (a) of"). Page 53, leave out lines 32 to 36 and insert: (""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 highway;").

The noble Lord said: My Lords, I beg to move Amendments Nos. 172 and 173. I spoke to these amendments with Amendment No. 142.

On Question, amendments agreed to.

Clause 154 [Minor definitions]:

Lord Brabazon of Tara moved Amendments Nos. 174 and 175: Page 85, line 27, leave out ("paragraph (a) of"). Page 85, leave out lines 38 to 42 and insert: (""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;").

On Question, amendments agreed to.

Clause 155 [Index of defined expressions]:

Lord Brabazon of Tara moved Amendment No. 176: Page 86, line 40, leave out ("100(2)") and insert ("100(4)").

The noble Lord said: My Lords, this minor amendment is to correct the erroneous reference to the definition of road managers given in subsection (4), not subsection (2), of Clause 100. I beg to move this drafting amendment.

On Question, amendment agreed to.

Clause 156 [Offences by bodies corporate or Scottish partnerships]:

Lord Brabazon of Tara moved Amendment No. 177: Page 87, line 14, after ("of") insert (", or to be attributable to any neglect on the part of,").

The noble Lord said: My Lords, Amendment No. 177 is also a minor technical amendment which brings subsection (2) into line with subsection (1). I beg to move.

On Question, amendment agreed to.

4.45 p.m.

Lord Clinton-Davis moved Amendment No. 178: Page 87, line 16, at end insert: ("(2A) For the purposes of this section it shall be the duty of all undertakers to include in their annual Directors Report a list of all persons mentioned in subsection (1) above and their duties and responsibilities in relation to the management and control of the undertaking and in relation to any street works. (2B) Failure to comply with the requirements of subsection (1) shall render the undertaker concerned liable to a fine not exceeding level 3 on the standard scale and to the forfeiture of any street works licence or licences held by them. (2C) Section 43 of the Powers of Criminal Courts Act 1973 shall apply to subsection (2B) above.").

The noble Lord said: My Lords, we debated a similar issue to Amendment No. 178 on 6th December when I moved Amendment No. 193. The clause itself introduces legal liability for offences which may be committed by bodies corporate or Scottish partnerships. To include that provision as far as corporate bodies are concerned is to be welcomed, and it should have the effect of concentrating minds on questions of safety, efficiency and the quality of operations carried out in relation to roadworks.

There can be no doubt that the reason we have placed a great deal of emphasis in this Bill on these provisions is that we recognise the potential for danger to road users and road workers. What has happened is that similar accountability for the safety of workers is introduced by the Health and Safety at Work Act. Therefore, a parallel accountability to cover the safety of road users is very timely.

But there is a distinction to be drawn between corporate accountability and good practice emerging out of individual accountability. I am advised that an example of this is contained in a report of the county surveyor of Lancashire. He reported to his committee that a survey by his inspectors showed that only 32 per cent. of temporary traffic signals at roadworks were operating lawfully. Even worse, only one in 14 sets of traffic lights operated by public utilities were operating lawfully. The report said that this confirmed reservations which had been expressed about their operation in the past. If I may say so, it did so very vividly indeed.

In this amendment we seek to identify the officers who may be responsible within an organisation, to define their direct responsibilities concerning the safety and efficiency of street works carried out by the utility, and to publish them in the directors' annual report and accounts. The fact that a statement will be publicly available defining an individual's responsibilities would, in my view, go a very long way towards ensuring that safety and efficiency standards are upheld. I think the illustration I have given adds emphasis to the request we are making as far as the Government are concerned. I hope that the Minister will reply positively to what I have just said. I beg to move.

Lord Brabazon of Tara

My Lords, although the first part of this amendment is different in form from that moved by the noble Lord, Lord Clinton-Davis, in Committee, our objections to it remain much the same. In our view, it would not increase the accountability of large utility companies in any material way to impose a new requirement to include in undertakers' annual reports detailed information about the responsibilities of individual officers and employees. There is a whole series of criminal sanctions against an undertaker who fails to comply with his duties under the Bill. I dare say that most of those would cover the points which the noble Lord, Lord Clinton-Davis, gave in his example.

Clause 156 makes clear that where an offence by a body corporate is proved to have been committed with the consent, connivance, or through the neglect of, a certain individual, the individual and the body corporate are guilty of the offence and may be proceeded against. As regards the general public, the requirement under Clause 58 of the Bill to provide signs at the site of all roadworks stating who is responsible for the works and giving a 24-hour telephone contact number will do a great deal to improve accountability.

I hope that the utilities will also consider ways of making better known individual management responsibility for the execution of street works. I am afraid that the noble Lord's amendment would not achieve that or allow offences committed under the Bill to be attributed to particular individuals in practice. However, it would impose an administrative burden with little practical effect. Therefore, I hope that the noble Lord will understand our arguments and feel able to withdraw this amendment.

Lord Clinton-Davis

My Lords, it is a question of judgment: the Minister takes one view and I take another. I think it would redound to good practice within a corporate entity if these records were kept. What is more, I think it would redound to the advantage of the corporate entity in its public relations if that were done. I am sorry that the Minister takes a different view, but I do not intend to press the matter at this stage and therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 [Minor and consequential amendments]: [Amendment No. 179 not moved.]

Lord Clinton-Davis moved Amendment No. 180: Page 106, line 21, at end insert: ("(c) for payment of an additional fee in cases where permission is not sought in advance or the terms of the conditions have not been fully complied with.").

The noble Lord said: My Lords, in this amendment we are seeking to permit the Minister to make provision by regulations for the payment of a fee over and above that charged for occupation of the highway by the owner of a skip, scaffolding or builders' materials in cases where previous permission is not sought from the local authority, or where the terms of the permission have simply not been complied with.

This amendment would give highway authorities the power to levy a penalty charge for positioning objects on the highway in situations which are dangerous. I believe that the threat of a charge of this character would provide an incentive to those who wish to place objects on the road to apply for a licence from the highway authority and, once having obtained that licence, to abide strictly by the conditions of the licence. The ability to levy a penalty charge would allow the authority to recover its costs in cases where it has to remove objects from the highway on grounds of road safety.

Under the law as it stands at the present, highway authorities have power to permit the deposit of items on the highway in a reasonable and safe fashion. They can also remove objects which are deposited in a way that is likely to be hazardous. However, if an authority removes items because it deems it appropriate to do so in the interests of road safety, the only way in which it can recover its costs is by litigation in the civil courts. That is costly, difficult and time-consuming. I believe that something ought to be done about that situation.

The amendment would permit highway authorities in effect to issue fixed penalty notices for failure to apply for prior permission or failure to comply with the conditions of a licence that has been granted. I believe that a penalty charge will provide some disincentive to aberrant activity of the kind that I have mentioned. If an object has to be removed from the highway and a charge by way of penalty imposed, the level of the charge can be fixed to ensure that the highway authority is able to cover the costs of enforcement. I believe that that is perfectly reasonable.

When the government amendment was debated at Committee stage the Minister was pressed to give an undertaking that any revenue generated by the fee for the occupation of the highway should be made available for additional transport investment and to cover the highway authority costs of administering the scheme Clearly, if there is a fixed penalty scheme the advantages would disappear unless local authorities were enabled to keep the fees. Therefore, I hope that the Minister will be in a position today to confirm that local authorities will be, at the very least, permitted to keep sufficient revenue to cover their administrative and enforcement costs. I beg to move.

Lord Brabazon of Tara

My Lords, these amendments seek to change the basis of the new provisions to be inserted in the Highways Act 1980 to charge builders and developers for their occupation of road space. They would allow the scheme for charging set out in regulations to include provision for the payment of additional fees where the occupation of the highway proceeded without permission or in contravention of the terms and conditions of a permission.

I have some sympathy with the thinking behind this amendment. It is clearly important that people placing skips, scaffolding or builders' materials in the road should not be allowed to escape paying any charges due. However, Sections 139, 160 and 171 of the Highways Act 1980 already make it an offence to place those things in a highway without the consent of the highway authority or without complying with certain conditions. In each case, appropriate penalties are provided for those guilty of an offence. For example, a person who erects scaffolding without authority which obstructs the highway is liable to a fine of up to £2,000. Therefore, it would not be appropriate to introduce a separate system of penalty fees under the charging scheme in those circumstances. I believe that there is already sufficient disincentive to misbehave on those concerned. I can confirm that local authorities will be allowed at least to cover their reasonable costs in administering any charging scheme. I hope that that is of some reassurance to the local authorities. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Clinton-Davis

My Lords, I thank the Minister for that reply and most particularly for his concluding remarks which I think the authorities will find a very positive response. The question of appropriate penalties misses the point which I made earlier about the difficulties that can sometimes arise in practice not only of causing those penalties to take effect but also, I suspect, finding the people who are responsible and bringing them to court. Therefore, the whole process is long drawn out and costly. Indeed, it may be nugatory except for the removal of the offending item.

There may have been some value in being able to take immediate action. I do not say that all the difficulties will have disappeared by reason of that. Some of them will continue. Nevertheless, the immediacy of being able to do something would have been a more appropriate remedy in certain cases.

I have no doubt that this is an issue to which another place will return in due course. For the moment, I thank the Minister for the concluding part of his remarks and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Underhill moved Amendment No. 181: Page 106, line 45, leave out ("or").

The noble Lord said: My Lords, in moving this amendment, which is tabled in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff, I shall, with the leave of the House, speak also to Amendment No. 182.

In the earlier debate reference was made to provision for highway authorities to be permitted to charge builders for the occupation of road space by skips, scaffolding and building materials. This amendment continues that discussion. The local authority associations consider that they should also be free to charge for the occupation of road space as a result of the erection of hoardings round a building site. These amendments are therefore very much of a probing category, because it is unclear whether Section 6 of Schedule 8 makes such a provision. It would be of assistance if the Minister could indicate whether charging for the occupation of road space as a result of the erection of hoardings is acceptable; whether it is currently provided for in Section 6 of Schedule 8 and, if not, whether he would be prepared to accept an amendment to clarify the position.

This is a small matter but one that the local authority associations consider to be rather important. It is again a matter of charging and whether Schedule 8 provides for it. If not, we ask whether the Minister will make provision for such an amendment. I beg to move.

Lord Brabazon of Tara

My Lords, I can satisfy the noble Lord very briefly on this matter. A hoarding that encroaches on the highway would fall within the definition of a relevant structure under Section 169 of the Highways Act and so would already be within the scope of the new Section 171A as drafted. Therefore the amendment is not necessary.

Lord Underhill

My Lords, I am grateful to the Minister for that assurance. Naturally I shall read carefully what he said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 182 and 183 not moved.]

Lord Brabazon of Tara moved Amendments Nos. 184 and 185: Page 110, line 33, after ("section") insert ("4(1) or"). Page 111, line 30, after ("prohibit") insert ("temporarily").

The noble Lord said: My Lords, in moving these amendments I shall speak also to Amendments Nos. 190 to 196, 198, 199, 201 to 206 and 208. They are all minor technical amendments to improve the drafting of this rather complicated schedule. Some of them remove superfluous passages from the present version. Others are minor corrections of detail. I beg to move.

On Question, amendments agreed to.

5 p.m.

Lord Brabazon of Tara moved Amendments Nos. 186 and 187: Page 113, line 3, leave out from first ("Act") to end of line. Page 113, line 5, leave out ("or directions").

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 197, 200 and 219. These amendments represent further thoughts about speed limits on special roads. We may want to impose 30 mph limits on certain special roads—for example, tunnels—authorised under Part I of the Bill. However, we have concluded that the right way to do so is not by making them "restricted roads" under Section 81 of the Road Traffic Regulation Act 1984. I beg to move.

On Question, amendments agreed to.

Lord Brabazon of Tara moved Amendments Nos. 188 and 189: Page 114, line 1, leave out ("or") and insert (", the Countryside Council for Wales and"). Page 114, line 2, after ("may") insert ("each").

The noble Lord said: My Lords, I shall speak also to Amendment No. 221. These amendments bring the schedule into line with the Environmental Protection Act 1990 which, among many other things, established a Countryside Council for Wales and transferred to it powers of the Countryside Commission. I beg to move.

On Question, amendments agreed to.

Lord Brabazon of Tara moved Amendments Nos. 190 to 196:

Page 114, line 28, at end insert ("and for "and to execute" substitute "and execute".").

Page 114, line 47, leave out paragraph 38 and insert: ("38. In section 31 of the Road Traffic Regulation Act 1984 (byelaws with respect to roads used as playgrounds), in subsection (1), for the words from "by a local authority" to "have power to" substitute "under section 29 of this Act, the local traffic authority may".").

Page 115, line 29, leave out ("(2)") and insert ("(3)").

Page 116, line 5, after ("to") insert (""highways" or, in Scotland,").

Page 117, line 19, leave out paragraph 52 and insert: ("52.—(1) Section 69 of the Road Traffic Regulation Act 1984 (placing of traffic signs in connection with exercise of other powers) is amended as follows.

(2) In subsection (1)—

  1. (a) for "highway authority" or, in Scotland, "roads authority" substitute "traffic authority"; and
  2. (b) for "the roads" or, in Scotland, "a road" substitute "the road".

(3) In subsection (2) for "highway authority" or, in Scotland, "roads authority" substitute "traffic authority".

(4) In subsection (3) for "highway authority" or, in Scotland, "local roads authority" substitute "local traffic authority".").

Page 117, leave out line 27 and insert (""local roads authority" substitute "local traffic authority".").

Page 117, line 30, leave out from ("Scotland,") to end and insert (" "local roads authority" substitute "local traffic authority".").

The noble Lord said: My Lords, I spoke to these amendments when speaking to Amendment No. 184. I beg to move.

On Question, amendments agreed to.

Lord Brabazon of Tara moved Amendment No. 197:

Page 118, line 16, leave out sub-paragraph (4) and insert: ("(4) For subsection (3) substitute— (3) A special road is not a restricted road for the purposes of section 81 on or after the date declared by the traffic authority, by notice published in the prescribed manner, to be the date on which the special road, or the relevant part of the special road, is open for use as a special road.".").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 186. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 198 to 206:

Page 118, leave out lines 26 to 28.

Page 118, leave out lines 37 to 39.

Page 119, line 6, at end insert: ("62A. In section 86 of the Road Traffic Regulation Act 1984 (speed limits for particular classes of vehicles), omit subsection (4) (which relates to special roads).").

Page 119 line 23, after ("any") insert ("other").

Page 119, line 24, after ("road") insert ("at that point").

Page 119, line 24, at end insert ("other").

Page 119, line 26, leave out ("local").

Page 119, line 26, leave out ("a local") and insert ("an").

Page 119, line 45, after ("Scotland") insert ("means").

The noble Lord said: My Lords, I spoke to these amendments when speaking to Amendment No. 184. I beg to move.

On Question, amendments agreed to.

Lord Brabazon of Tara moved Amendment No. 207:

Page 120, leave out lines 9 to 23 and insert:

(""Traffic authorities.

121A .—(1) The Secretary of State is the traffic authority▀×

  1. (a) for every highway in England and Wales for which he is the highway authority within the meaning of the Highways Act 1980, and
  2. (b) for every road in Scotland for which he is the roads authority within the meaning of the Roads (Scotland) Act 1984.

(2) In Greater London, the council of the London borough or the Common Council of the City of London are the traffic authority for all roads in the borough or, as the case may be, in the City for which the Secretary of State is not the traffic authority.

(3) In England and Wales outside Greater London, the, council of the county or metropolitan district are the traffic authority for all roads in the county or, as the case me y be, the district for which the Secretary of State is not the traffic authority.

(4) In Scotland, the regional or islands council are the traffic authority in relation to all roads within their area for which the Secretary of State is not the traffic authority.

5) In this Act "local traffic authority" means a traffic authority other than the Secretary of State.".").

The noble Lord said: My Lords, this amendment provides a better definition of a traffic authority. The significant difference from the provision as drafted is that a local traffic authority is responsible not only for highways but for any road in its area except a road for which the Secretary of State is the highway authority under the Highways Act 1980. Local authorities' current powers under Sections 1, 6 and 9 of the Road Traffic Regulation Act 1984 extend to certain roads which are not highways. The new section 121A places beyond doubt that they still do. In Scotland the effect is the same although the terminology is different.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 208: Page 121, line 30, after ("(3)") insert (", and in paragraph 3(2),").

The noble Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 184. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 209 to 218:

Page 128, line 24, at end insert: ("( ) In section 23 (power to lay mains), at end insert— (4) In the case of works in respect of which notice is required to be given under section 106 of the New Roads and Street Works Act 1991 (notice of starting date of road works), notice duly given to a person in accordance with that section and section 147 of that Act (service of notice) shall be treated as reasonable notice for the purposes of subsection (1) above.".").

Page 128, line 27, at end insert: ("( ) In section 103 (requirement for all notices to be in writing), after "shall" insert ", subject to section 23(4) of and paragraph 4(1) of Schedule 3 to this Act,"").

Page 128, line 28, leave out ("paragraph 2(2) of").

Page 128, line 29, after ("pipes)") insert ("— (a) in paragraph 2(2)").

Page 128, line 31, at end insert: ("(b) in paragraph 4(1) for the words "not less than 72 hours'" substitute the word "such" and, the end of that sub-paragraph add the words "as would require to be given by an undertaker under section 106 of the New Roads and Street Works Act 1991 (notice of starting date of works) in accordance with that section and with section 147 of that Act (service of notice)".").

Page 129, line 19, leave out from ("In") to ("sub-paragraph") in line 21 and insert ("Schedule 2 to the Telecommunications Act 1984 (the telecommunications code), paragraph 1 (interpretation) is amended as follows.

(2) In").

Page 129, line 39, after ("In") insert ("the same Schedule, in").

Page 130, line 3, leave out ("paragraph 9 (street works), in sub-paragraph (1)") and insert ("the same Schedule, paragraph 9 (street works) is amended as follows.

(2) In sub-paragraph (1), after "over," insert "upon,", and").

Page 130, line 10, at end insert:

(" .—(1) In the same Schedule, paragraph 23 (undertaker's works affecting telecommunication apparatus) is amended as follows.

(2) After sub-paragraph (2) (notice to be given to operator of telecommunication system) insert— (2A) In the case of works in respect of which notice is required to be given under section 49 or 106 of the New Roads and Street Works Act 1991 (notice of starting date of street works or, in Scotland, road works), notice duly given to a person under that section shall be treated as a notice duly given to him under sub-paragraph (2) above.".")

(3) At the end of sub-paragraph (4) (counter-notice by operator) insert—

"Where by virtue of sub-paragraph (2A) above notice of less than 10 days is treated as a notice duly given under sub-paragraph (2), a counter-notice may not be given after the works have been substantially begun.".").

Page 132, line 20, at end insert:

(".—(1) In the same Schedule, paragraph 3 (execution of works affecting certain descriptions of apparatus) is amended as follows.

(2) After sub-paragraph (3) (notice to be given to undertaker) insert— (3A) In the case of works in respect of which notice is required to be given under section 49 or 106 of the New Roads and Street Works Act 1991 (notice of starting date of street works or, in Scotland, road works), notice duly given to a person under that section shall be treated as a notice duly given to him under sub-paragraph (3) above.".

(3) At the end of sub-paragraph (5) (counter-notice by undertaker) insert— Where by virtue of sub-paragraph (3A) above notice of less than seven days is treated as a notice duly given under sub-paragraph (3), a counter-notice may not be given after the works have been substantially begun.".").

The noble Lord said: My Lords, these 10 minor amendments are necessary in order to remove some inconsistencies between the street works provisions of the Bill and the utilities' enabling legislation. The five amendments standing in my name only apply to England, Wales and Scotland. They will allow a notice given under Clause 49 (Clause 106 for Scotland) to be deemed as duly given for the purposes of notice requirements in the relevant telecommunications and electricity legislation. They will also allow telecommunications and electricity undertakers to serve the counter-notices provided for in their enabling legislation within the timescale provided for under the Bill in cases where this is at variance with the individual notice requirements that they contain.

The five amendments standing in the name of my noble friend Lord Strathclyde apply to Scotland only and make similar provision in relation to the Water (Scotland) Act 1980. The amendments to telecommunications legislation will also bring the definition in the telecommunications code of telecommunications apparatus "in" a street in line with the definition of "in" in Clause 97. I beg to move.

On Question, amendments agreed to.

Schedule 9 [Repeals]:

Lord Brabazon of Tara moved Amendment No. 219: Page 134, line 15, column 3, leave out ("82(3)") and insert ("86(4)").

The noble Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 186. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 220:

Page 135, line 5, at end insert:

("1988c. 53. Road Traffic Offenders Act 1988 In Part I of Schedule 2, the entry relating to section 30(5) of the Road Traffic Regulation Act 1984.
In Schedule 3—
(a) in the entry relating to section 29(3) of the Road Traffic Regulation Act 1984, the words "outside Greater London";
(b) the entry relating to section 30(5) of that Act.").

The noble Lord said: My Lords, this amendment is consequential on the changes to the Road Traffic Regulation Act 1984 under paragraph 37 of Schedule 8. It extends Section 29 to roads in London as well as outside and removes Section 30. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 221:

Page 135, line 24, at end insert:

("1990 c. 43. Environmental Protection Act 1990. In Schedule 8, in para—graph 7, the words from "and in subsection (4)" to the end.")

The noble Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 188. I beg to move.

On Question, amendment agreed to.