HL Deb 24 January 1991 vol 525 cc423-34

.—(1) The provisions of this section apply to the laying underground of any cable, tube, pipe or other apparatus for the conveyance of—

  1. (a) hydrocarbons or other liquid or gaseous substances, or
  2. (b) telecommunications signals,
which has, no continuous metallic content in its composition ("a non-metallic conveyor").

(2) Where an undertaker carries out or causes to be carried out any of the works mentioned in subsection (1) above, he shall ensure that either—

  1. (a) a metallic wire or strip is laid directly along or underneath the whole length of the non-metallic conveyor; or
  2. (b) that a metallic alloy or other substance with a metallic content is incorporated in the non-metallic conveyor.
so as to enable the course of the non-metallic conveyor to be located and traced from the surface by means of a conventional alternating magnetic field locator of a type used for locating and tracing metallic cables, pipes and tubes underground.

(3) After installation the undertaker shall ensure that the conductor wire or strip, or the metallic component of the non-metallic conveyor, is at all times maintained in a condition in which location and tracing as described in subsection (2) above can effectively be carried out.

(4) An undertaker who fails to comply with subsection (2) or (3) of this section shall be guilty of an offence and on conviction shall be liable to a fine not exceeding level 3 on the standard sale.").

The noble Lord said: My Lords, the purpose of the new clause which stands in my name is simple and, as it seems to me, beneficial.

Almost anyone who is digging in or near a street or highway needs to be able to detect and avoid buried cables and pipes. Damage to a buried cable or pipe in the course of digging can have one or more of several undesirable consequences. It can be dangerous to the people digging and to road users. It can cause serious and often prolonged traffic disruption: your Lordships will have heard radio warnings of traffic diversions, delays and hazards on account of burst gas or water mains. It can cause inconvenience, as I know to my cost, and even danger to users of the service in question if they suffer unexpected interruptions of supply. It can cause unnecessary extra expense for the utilities, and therefore for the consumers, to repair the damage.

Therefore, if you are proposing for whatever purpose to dig a hole in the road it is necessary to obtain the best possible information about the cables and pipes that are or may be under the ground where you propose to dig. In many cases the utilities which laid the cables or pipes have maps or other documentary records of where they are buried. Even where such records exist and are readily available they are not always sufficiently accurate for the purpose: it can be a little like relying on old Silvestra's map for finding the way to King Solomon's Mines. The records are not always available to those who need to dig; particularly if the dig is an emergency one. Therefore, a great many of the people who have to deal with this problem—utilities, contractors and so on—make use of and are very familiar with electro-magnetic locators which enable them to locate and trace from above ground the course of cables and pipes buried underground.

This technique is not, I gather, perfect or without possibility of failure. The locators have some shortcomings, particularly where there is a closely knit complex of pipe or cables underground, and to use them to best advantage requires a certain skill or aptitude. Nonetheless, the technique demonstrably offers substantial advantages for utilities and contractors that need to dig holes in the road. Many thousands of such locators are in use in this country and a wide cross-section of people have become sufficiently expert in using them.

However, this technique and these locators depend on the cables or pipes to be located being made of metal. They cannot detect non-metallic pipes. Utilities and contractors are increasingly using non-metallic pipes and cables: plastic pipes to carry gases or liquids, sometimes under considerable pressure; optical fibres carrying often very large volumes of telecommunication traffic which will be disrupted if the cable is broken or damaged. I am told that one optical fibre telecommunications cable was accidentally damaged in northern New York, and as a result phones and faxes in much of Manhattan and New York City were out for the best part of a day. So there is increasing need for a technique to enable those who have to dig holes in roads to locate and trace non-metallic cables and pipes underground.

I am advised that various possible techniques for doing this are being investigated, such as ground-probing radar, infra-red imaging and seismic reflection. A radar technique is available on the market, but it is extremely expensive and uncertain in use; and neither of the others is commercially available today; or likely to be so available in the foreseeable future.

If it is not possible to devise a satisfactory new technique for detecting non-metallic pipes and cables underground, then the alternative course is to find a way of making such cables and pipes locateable by means of the existing technique and type of equipment. That means attaching or adding to the cable or pipe something to make it locateable with existing electro-magnetic locators. This can be done by adding a well insulated single core tracer wire or strip to the pipe, or burying it below the cable or pipe, in the trench when it is laid. This technique, for which subsection (2)(a) of my new clause provides, is not new or experimental. It is already widely used in many other developed countries and is in some countries mandatory. My new clause would make it mandatory here. It offers a simple, low cost and reasonably effective solution to the problem.

I am advised that research is going on into an alternative technology to achieve the same result: that of incorporating in the material of which the non-metallic cable or pipe is made an amorphous metallic alloy which would make the material concerned conductive. I am not aware that much progress is being made in developing this technology. I would hazard a guess that there is no guarantee that it could be any more effective than the presently available technique; and it could well prove to be considerably more expensive. But I do not wish to exclude the possibility that this technique may turn out to be just what the doctor ordered; so subsection (2)(b) of my new clause allows for it by providing for a metallic alloy or other substance incorporated in the non-metallic conveyor as an alternative to a metallic wire or strip.

I do not claim perfection for the techniques which my new clause describes. But the technique of electro-magnetic location is a proven technique, and this new clause, by requiring contractors and utilities when laying non-metallic pipes and cables to do what is necessary to make it possible to use such a technique, would in effect put non-metallic cables and pipes on an equal footing with metallic ones as regards location and tracing. I believe that to do this offers prospects of clear benefits to health, safety, continuity of supply and economy of costs. I believe that it is reasonable to ask the contractors and utilities which lay such pipes and cables to incur the relatively small additional capital cost that would be involved for the sake of ensuring that these benefits are available on a lasting and consistent basis. I beg to move.

9.45 p.m.

Lord Clinton-Davis

My Lords, I understood absolutely every word of that, and I congratulate the noble Lord, Lord Armstrong, on sitting through the prior debates in order to provide us with this extremely interesting proposition. I am sure that he will not wish to deprive himself of the pleasure of listening to the subsequent debates once we have dealt with this matter. I can assure him it is all going to be tremendously fascinating.

Having listened to all that the noble Lord has said, I suppose that he has made out a case worthy of answer, but my understanding is that there is some support on the part of the highway authorities because they feel that it would greatly assist the location and identification of underground apparatus; but clearly there are different views.

As has been said repeatedly during the course of this debate, a very fine balance has been established, and one must not interfere with that. All that I wish to do is to express on behalf of the highway authorities their interest in the proposition. They are by no means totally committed to it at this stage, and they would wish to look at the position afresh in the light of the speech made by the noble Lord, Lord Armstrong, and the debate that follows, particularly having regard to the comments that were made by the Minister.

Lord Swinfen

My Lords, the idea put forward by the noble Lord, Lord Armstrong, is worthy of serious consideration. As he said, it can be extremely dangerous not to know where pipes go. In his speech he may have answered one of my queries, which is whether the word "telecommunications" includes optic fibres through which messages are now passed by means of light. I do not know the answer to that. Perhaps the Minister can help us.

In subsection (2) of the amendment we read: traced from the surface by means of a conventional alternating magnetic field locator". The amendment does not appear to make any provision for advances in science so that we can locate pipes by new methods that are developed. One should allow for that in view of the rate at which science is moving today. My knowledge of science at school was appalling; but in order for something to register magnetically does it not have to have some ferrous material in it? The noble Lord's amendment just says "metallic content". I think one needs to be a little more specific than that because if it were to have a lead content I do not think a magnetic device would register. It might be possible to do it with copper by passing a current through it, but if it were a pipe with an explosive gas going through it that would be highly dangerous. I wonder whether this matter needs a little further thought.

Lord Tordoff

My Lords, there is no doubt that the noble Lord, Lord Armstrong of Ilminster, has raised an important point here and has defined the problem. I am not sure that he has defined the answer. There are difficulties in putting metal traces along polyethylene piping because there is a danger of discontinuity at the joint between two pipes; there is danger of damage to the pipes, causing discontinuity and disturbing the ability to trace any circuit through the metal foil, for example. Furthermore, there is a danger of a thin strip of the sort that he describes being very much disguised by other metal objects under the ground, whether they be there by accident or by design. So although the noble Lord has probably put his finger on an important problem there may be other ways of killing the cat than choking it with strips of metal.

Lord Brabazon of Tara

My Lords, we have had an interesting debate on this subject. I am grateful to the noble Lord, Lord Armstrong, for calling attention to the important subject of avoidance of damage to buried apparatus and the safe location of non-metallic apparatus, which is being used increasingly by the utilities. We believe that the proposed new duties on undertakers in Clauses 72 and 73 to record in a prescribed form all items of apparatus placed or found during works will result in a great improvement in the availability and reliability of records of the location of apparatus.

However, it would be premature and inappropriate to impose a general statutory requirement on undertakers to include metal traces in their buried apparatus. I am advised that there are considerable technical difficulties with devising a reliable metal tracer system. Noble Lords have pointed to one or two of those. However, the utilities are exploring the use of a number of alternative techniques, including ground -probing radar and amorphous magnetic alloys, which could be included in pipe or cable walls. The noble Lord referred to those. Once this technical debate has been resolved the Government will consider imposing appropriate requirements on undertakers, but it is not necessary to provide for that in the p resent Bill. With that assurance, I hope that the noble Lord will be able to withdraw this amendment.

Lord Armstrong of Ilminster

My Lords, perhaps I may deal briefly with the points raised during this very interesting debate. As regards what the noble Lord, Lord Swinfen, said, I thought that optical fibre was covered by the reference to telecommunications signals. If that were not so I would wish to find some other definition. The purpose of the clause is modest. It is not to look ahead to scientific developments which I for one am unable to foresee but to provide for the present situation and leave to our successors how to provide for future situations.

The noble Lord, Lord Swinfen, said that "metallic" was not a tight enough description and that the clause should have referred to "ferrous" or some such expression. The qualification in subsection (2), so as to enable the course of the non-metallic conveyor to be located and traced from the surface by means of a conventional alternating magnetic field locator", covers that point.

The noble Lord, Lord Tordoff, referred to the danger of discontinuity. I understand that weakness. My representation would be that there can occasionally be problems of this kind but that does not detract from the general merit of having some provision of this sort. Although there may be a few cases where that happens, there will be many where it does not and where the provision of such a metallic strip would be beneficial.

I have referred to the technical difficulties. I am not wholly convinced by the points which have been made on this matter. Research is being done into the possibility of using amorphous metallic alloys in the composition of the walls of such pipes, but my understanding is that the research into this is still at a fairly early stage. It will be some way off before one can see whether this research will provide a solution to the problem. My new clause was intended to provide for the present situation rather than to peer forward into a murky future where all these marvellous technological developments will occur.

I shall be grateful if the Government will look at this matter again in consultation with the highway authorities and utilities because I believe that this is a problem which should be addressed. Subject to those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 82: After Clause 110, insert the following new clause:

General duty of undertakers to co-operate

(".—(1) An undertaker shall as regards the execution of road works use his best endeavours to co-operate with the road works authority and with other undertakers

  1. (a) in the interests of safety,
  2. (b) to minimise the inconvenience to persons using the road (having regard, in particular, to the needs of people with a disability), and
  3. (c) to protect the structure of the road and the integrity of apparatus in it.

(2) The Secretary of State may issue or approve for the purposes of this section codes of practice giving practical guidance as to the matters mentioned in subsection (1); and—

  1. (a) so far as an undertaker complies with such a code of practice he shall be taken to comply with his duty under that subsection, and
  2. (b) a failure in any respect to comply with any such code is evidence of failure in that respect to comply with that duty.

(3) An undertaker who fails to comply with his duty under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 47.I beg to move.

On Question, amendment agreed to.

Clause 54 [Protected streets]:

Lord Brabazon of Tara moved Amendment No. 83: Page 30, line 28, leave out ("or part of a street").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 90. These are drafting amendments which will remove an unnecessary reference to "part of a street". Clause 42 of the Bill already makes clear that reference to a street includes any part of it. I beg to move.

On Question, amendment agreed to.

Lord Brougham and Vaux moved Amendment No. 84: Page 30, line 30, at end insert ("and works required for or incidental to such renewal, including, in particular, breaking up or opening the street or any sewer, drain or tunnel under it, or tunnelling or boring under the street").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 88 and 89. The purpose of Amendment No. 84 is to make it clear that prohibition, without the street authority's consent, of street works in a protected street (which under subsection (1) will not apply to renewal of existing apparatus) does not apply to incidental works associated with the works of renewal. The utilities consider this to be necessary in view of the reference to incidental works in Clause 42(3). Their omission in Clause 54 may imply that the utility is not empowered to do them, which would be nonsense.

I turn now to Amendment No. 88. It is understood that the object of the tailpiece to subsection (2) is to recognise that in certain cases a street authority may be in a position to require wayleave payments for apparatus laid in land alongside highways; for example, in grass verges or banks associated with motorways. However, as drafted, the subsection, by referring to, the right of the authority", may be taken as implying that in every case where a highway authority has bought land to build a road on it, or for road widening or improvement purposes, it may charge a utility for placing apparatus in it. That is not the position in law, where the general rule is that the right of utilities to lay their apparatus in a street, and repair, maintain and replace it, is not subject to any right of the owner of the soil to require payment, whether that owner is the highway authority or anyone else. The amendment will clarify the position without in any way derogating from any legitimate rights that may exist.

I now turn to Amendment No. 89. This subsection already covers the case of apparatus crossing a protected street, where there must be special reasons for not allowing the utility to proceed. The amendment is intended to cater for the case where, with the best will in the world, the utility is unable to find a practicable alternative route, other than a protected street or part of it, for his apparatus. In such a case, the balance of interests between the street authority and the utility may be more than usually fine. This, therefore, is another case where, in the absence of special reasons, the consent of the street authority should be given.

These are important amendments. I look forward to hearing my noble friend's comments. I beg to move.

Lord Underhill

My Lords, I should like to refer briefly to two of the amendments. It would appear that Amendment No. 84 is designed to expand on the reference in subsection (1) to the renewal of existing apparatus. I await the Minister's reply to the amendment. I shall examine it carefully with a view to seeing what may be done at a later stage.

I am not entirely happy about Amendment No. 89. It would significantly limit the value of protected streets by requiring highway authorities not to withhold their consent for placing apparatus in a protected street where there is no reasonably practicable alternative location for the apparatus. The whole concept of protected streets is designed to ensure that roads such as motorways are not obstructed as a result of utilities requiring access to any apparatus placed under them. The number of protected streets is, and will remain, extremely limited, but it is essential that where they exist the general principle is that no utility apparatus should be located beneath them.

As drafted, subsection (3) provides for utilities to place apparatus across a protected street. That is acceptable because it would affect only a relatively short stretch of street and is almost certain to be essential in terms of securing utility supplies to a particular area of town.

Amendment No. 89 would significantly weaken the protection given by the Act to protected streets. I am certain that the highway authorities will be prepared to look at each case on its merits. However, a general decision on the lines set out in Amendment No. 89 is one to which we would not be happy to give support.

10 p.m.

Lord Brabazon of Tara

My Lords, these amendments would loosen the present controls on the execution of street works and protected streets. Clause 54 as drafted replaces a similar provision in Section 20 of the Highways Act 1980. Together with Clause 55, it establishes categories of streets which are to be subject to special controls and it sets out the procedure for giving consent to the placing of apparatus in streets designated as protected.

My noble friend's first amendment seeks to widen the circumstances in which consent of the street authority is not required for works carried out in a protected street. It would include works incidental to the renewal of existing apparatus. However, this amendment is unnecessary since the requirement to obtain consent applies only to placing apparatus and there is no requirement to seek consent for other works which fall within the definition of street works under this part of the Bill.

The second amendment would replace the provision enabling the street authority to charge a wayleave for the placing of apparatus where it also owns the land in question. The provision as drafted is similar to that contained in Section 181 of the Highways Act 1980 and does not confer any additional right on the street authority. Therefore, the amendment adds nothing to the present position.

Amendment No. 89 would in effect require the street authority to consent to the placing of apparatus in a protected street where there was no reasonably practical alternative location for the apparatus. However, that would widen unnecessarily the restrictions on the placing of apparatus in such streets. The question of the availability of an alternative route for apparatus should properly be addressed at the time of designation and the criteria for designation to be prescribed under Clause 55 will allow for that. Once the street has been designated as protected, it will be important to restrict activity on it to the minimum necessary. In the light of those explanations, I hope that my noble friend will feel able to withdraw the amendment.

Lord Brougham and Vaux

My Lords, I am grateful to my noble friend the Minister for having clarified the position. I shall read very carefully what he has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendments Nos. 85 to 87: Page 30 line 34, leave out ("sum") and insert ("fee"). Page 30, line 37, leave out ("charge") and insert ("fee"). Page 30, line 39, leave out ("sum") and insert (fee").

On Question, amendments agreed to.

[Amendments Nos. 88 and 89 not moved.]

Clause 111 [Protected roads]:

Lord Brabazon of Tara moved Amendments Nos. 90 to 93: Page 62, line 17, leave out ("or part of a road"). Page 62, line 23, leave out ("sum") and insert ("fee"). Page 62, line 26, leave out ("charge") and insert ("fee"). Page 62, line 28, leave out ("sum") and insert (fee").

On Question, amendments agreed to.

Clause 55 [Supplementary provisions as to the designation of protected streets]:

Lord Brougham and Vaux moved Amendment No. 94: Page 31, leave out lines 13 and 14 and insert: ("(1) A street authority may designate as a protected street any trunk road or principal road as to which they are satisfied that volumes of traffic flows are such throughout the day that severe disruption of traffic due to street works cannot be avoided by the imposition of restrictions under section 50 (power to give directions as to timing of street works) (1A) The Secretary of State may prescribe— (a) the procedure for making or withdrawing a designation of a street as protected, and").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendment No. 95. The criteria agreed with the utilities and the highway authorities and described in the draft code of practice are quite specific. The purpose of the amendment is to reflect those agreed criteria on the face of the Bill.

The second amendment would make the street authorities liable to compensation for any of the undertakers' contractual costs incurred as well as diversionary costs. It is possible that an undertaker may already have entered into a contractual agreement to carry out installation of all maintenance works or his own prior to the designation being made known and any costs for cancelling the contract being incurred. These are probing amendments. I beg to move.

Lord Underhill

My Lords, I shall deal first with Amendment No. 94. The effect of the amendment would be to define on the face of the Bill the criteria for designating a protected street. The definition set out in the amendment is a trunk or principal road on which the, volumes of traffic flows are such throughout the day that severe disruption of traffic due to street works cannot be avoided by the imposition of restrictions under section 50 (power to give directions as to timing of street works)". One key factor in deciding whether or not to designate a street as protected is undoubtedly the volume of traffic. However, the agreed definition of protected streets as set out in the HAUC Notice Periods Working Party's consultation document is streets which, serve a specific, major traffic need". The consultation paper continues to state that, Only streets serving a specific, strategic major traffic need may be so designated. It is the strategic nature of the traffic as much as the volumes of traffic which warrant protected status.

Clause 55(1) (a) provides for the criteria for designation to be set out in regulations. Given that the criteria are not straightforward and may need to be amended over time, the local authority associations recommend that regulations rather than the Bill provide the best vehicle for such criteria to be set out.

Having passed on those remarks I shall be interested to hear the Government's comments.

Lord Brabazon of Tara

My Lords, as my noble friend described, these amendments seek to limit the terms on which a street authority will be empowered to designate a street as protected.

The Government made clear in response to the Home Report that various safeguards for undertakers would need to be built into the procedures for designating protected streets but that the power should not be confined to trunk and principal roads. The amendment would confine the power still further by imposing a test as to whether traffic disruption due to street works could not be avoided by other means. That would be an unwelcome limitation.

The Horne Report gave as an example of a road which might be protected, a newly built inner relief road in an urban area which did not provide sole access to any properties. Such a road could well be neither a trunk nor a principal road; nor will traffic disruption be the only determining factor in deciding which street should be designated as protected. Those criteria will clearly be prescribed in the regulations to be made under Clause 55. That was a point made by the noble Lord, Lord Underhill.

The last amendment would extend the liability of the street authority to indemnify undertakers for the costs of moving apparatus as a result of designation of a street as protected to cover any apparatus proposed to be placed at a time when the street was not so designated. That would open up a wide area of dispute as to how advanced a plan to place apparatus had been, and what costs could be attributed to changing the plan so as to locate apparatus elsewhere.

In contrast, it is relatively simple to attribute the costs of moving or changing the position of apparatus which has actually been placed. We propose to deal with the question of giving undertakers adequate notice of proposed designation in the procedure to be prescribed under the clause. An extended indemnity provision for abortive costs as proposed would not be practical and is not considered necessary.

With that explanation, I hope my noble friend will feel able to withdraw the amendment.

Lord Brougham and Vaux

My Lords, I am grateful to my noble friend for his reply, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 95 not moved.]

Clause 56 [Streets with special engineering difficulties]:

Lord Clinton-Davis moved Amendment No. 96: Page 32, line 17, at end insert: ("(5) A street authority shall have no liability in relation to a structure for which they are not responsible where such structure causes the street to meet the criteria for designation as a street with special engineering difficulties and the structure has not been drawn to their attention.").

The noble Lord said: Amendment No. 96 is tabled in my name and that of the noble Lord, Lord Tordoff. It deals with special engineering difficulties. Perhaps I can briefly cover its effect. It is designed to make clear that a street authority could not be held liable in circumstances where a street had not been designated as being of special engineering difficulty if the authority had no knowledge of the structure which caused the street to meet the criteria for designation.

At Committee stage we debated an amendment intended to highlight the problems arising where a structure which could warrant a street being designated under Clause 56 was owned by someone other than the street authority or a transport undertaking. The example given was a private cellar. In response to the amendment the Minister acknowledged that there could be cases where privately owned structures could warrant designation. At col. 318 of Hansard on 6th December—which is my birthday, noble Lords will kindly note for future reference—he said: A responsible highway authority would of course investigate any engineering features of this kind that were brought to its attention from whatever source. It is appropriate, however, that the final decision on whether to designate the street … should in these cases rest with the highway authority". Then he was asked whether the issue was to be discussed by the appropriate HAUC working party. The Minister confirmed that this would be the case. My understanding is that discussions will certainly take place on the subject in the HAUC.

Nevertheless, two matters arise from the debate at the Committee stage which prompt further parliamentary discussion. First, an interpretation has been placed on the Minister's approach at Committee stage by the local authority associations that highway authorities will adopt a proactive role in going out and identifying structures of this kind. Given the current level of resources, that is extremely improbable.

The second matter which has given rise to some discussion is that the associations accept that, once a feature has been identified, it is the highway authority's responsibility to assess whether it warrants the street concerned being designated as of special engineering difficulty. However, in his reply at Committee stage the Minister did not address the problems which could arise where the structure concerned had not been drawn to the authority's attention. As a result, no thought was given to designation, which has given rise to anxiety on the part of the associations.

The amendment which I introduced will have the effect of absolving the street authority from responsibility. The Minister may say that that is a somewhat negative approach. I hope that it is not intended in that spirit; it is meant to probe the Minister's thinking about these matters, particularly in the light of the situation which emerged at Committee stage which has given rise to further discussion on the part of the authorities. They hope that the Minister may be able to shed further light on the position in the course of this debate. I beg to move.