New Roads and Street Works Bill [H.L.]

HL Deb 24 January 1991 vol 525 cc395-423

Consideration of amendments on Report resumed.

Clause 43 [The street authority and other relevant authorities]:

Lord Brabazon of Tara moved Amendment No. 47: Page 24, line 24, after ("53") insert ("and (General duty of undertakers to co-operate)").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 48, 70, 72, 77, 79, 80 and 82.

Lord Underhill

My Lords, are we not also taking Amendment No. 74 in this group?

Lord Brabazon of Tara

My Lords, I do not believe that we are taking Amendment No. 74.

Lord Underhill

My Lords, according to my Marshalled List the amendments in this group are Amendments Nos. 48, 70, 72, 74, 77, 79, 80 and 82. Amendment No. 74 forms part of this group.

Lord Brabazon of Tara

My Lords, very well. I shall speak also to Amendments Nos. 70, 72, 74, 77 and 79 in the names of noble Lords opposite. Amendments Nos. 47, 48, 80 and 82 provide for a number of important changes to the provisions regarding the co-ordination of works. Amendments Nos. 47 and 48 are consequential on the new clause to be inserted after Clause 53. They make clear that the new duty on undertakers to co-operate with the street authority shall apply to a local highway authority in place of the Secretary of State where the authority is the Secretary of State's agent in relation to trunk roads.

Amendments Nos. 80 and 82 will add a new clause which places a general duty on undertakers to co-operate both with the street authority and each other in a co-ordinating the execution of works. Of course, I have considered carefully the points raised in Committee in favour of such a provision and, following discussion with the utilities and highways authorities, I have concluded that a general duty of this nature is desirable if street works are to be co-ordinated efficiently and effectively. The amendment is drafted in general terms similar to Clause 53 which outlines the street authority's duty to co-ordinate works.

Codes of practice which the Secretary of State may issue or approve under subsection (2) will set out the objectives and give detailed guidance in the exercise of undertakers' duties under this clause. I hope that noble Lords will accept that that anxiety is effectively met by the new clause which we propose after Clause 53, and that they will feel able to withdraw Amendments Nos. 73 and 79.

Amendments Nos. 70 and 72 seek to add economy, efficiency and effectiveness to the list of objectives for which a street authority is to be required to co-ordinate works. Although the whole thrust of this part of the Bill is towards greater economy, efficiency and effectiveness for street works activity, we do not consider that there is anything to be gained by attaching that objective to the duty of the street authority in the context of this clause. Each utility will have a powerful financial interest in carrying out works effectively and efficiently, particularly in the light of the penalties which will be suffered if they fail to do so. It could even be seen as diluting the responsibility of the undertaker to place a duty on the street authority to maximise the economy of street works.

Greater economy, efficiency and effectiveness will be ways in which the street authority can secure the objectives set out in Clause 53 of minimising inconvenience to persons using the street. That will be fully reflected in the various standards and codes of practice to be applied throughout this part of the Bill.

As regards Amendment No. 74, it is not necessary to express the provision on issuing a code of practice about co-ordination of works as a duty on the Secretary of State. The street authority's duty to co-ordinate works is a crucial element of the street works provision. The agreement of a code of practice capable of being approved by the Secretary of State under Clause 53 will be a priority when it comes to implementing this part of the Bill. The Department of Transport is working closely with the Highway Authorities and Utilities Committee on the drafting of such a code. It is the Government's firm intention to have such a code approved in time for the introduction of this new duty on the street authorities.

I hope that noble Lords will approve the Government's proposed amendments and, when the time comes, will feel able to withdraw their amendments. I beg to move.

Lord Underhill

My Lords, I should first apologise to the Minister and to the House. Amendment No. 74 was included in my copy of the Marshalled List but I have now seen the revised list on which it was not included with this group. That explains why Amendment No. 74 is not in the name of the noble Lord, Lord Tordoff, whereas Amendments Nos. 70, 72, 77 and 79 are in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff.

This group of amendments together insert a new objective of co-ordination maximising the economy, efficiency and effectiveness of street and road works. Utilities are required to have regard to the proposed co-ordination codes of practice and the Secretary of State will be able to pursue utilities which are not co-operating with street authorities. The amendments require rather than permit the Secretary of State to issue a co-ordination code of practice.

The Minister has stressed that the issue of co-ordination is very important. As regards the highways authorities, co-ordination is one of the most difficult and crucial areas. The credibility and effectiveness of the Bill will, to a great extent, hang on the co-ordination function being deployed satisfactorily.

In Committee an amendment was moved by my noble friend Lord Clinton-Davis which would have imposed a duty upon utilities to co-operate with street authorities in the pursuance of their co-ordination duties. In response to that amendment the Minister listed a series of provisions in the Bill which are designed to assist street authorities in co-ordinating street and road works. The Minister went on to say: However, we accept that the street authorities' duty of co-ordination can be discharged effectively only if the undertakers concerned co-operate by participating in liaison meetings, giving adequate advance notice of their plans and so on. The code of practice to be issued or approved under subsection (3) may be used to give practical guidance to all interested parties on how co-ordination is to work in practice. We do not believe that further statutory obligations are necessary to achieve that".—[Official Report, 6/12/90; col. 313.] The Government have clearly reconsidered their position. This amendment represents an acknowledgment of the point raised by my noble friend in Committee. The Government amendments are broadly acceptable as far as they go. One unfortunate aspect of them is that they imply the existence of two co-ordination codes of practice: one issued under the provisions of Clause 53; and the second under the provisions of the Government's new clause. When the Minister replies, will he kindly confirm that the Government envisage producing a single code of practice on co-ordination fulfilling the requirements of both clauses?

One aspect of the group of amendments which is not addressed in the Government's amendment is the inclusion of a new objective for co-ordination. The amendment would add a fourth point to the factors listed in subsection 53(1) namely: to maximise the economy, efficiency and effectiveness with which street works and works for road purposes are undertaken". To ensure consistency this would have to be mirrored by the insertion of the same point in subsection (1) of the Government's new clause.

The aim of this group of amendments is to pursue the key issue raised by my noble friend at Committee stage. It may be recalled that he asked the Minister a series of questions. These included: If it appears to a street authority that in the interests of co-ordination a particular authority's work should be delayed or advanced, can the Minister say what powers may be introduced to enable that objective to be fulfilled?"—[Official Report, 6/12/90; col. 314] He also asked: If there are a number of utilities having works planned in a particular street which might be programmed for resurfacing, what powers will be available to the street authority to ensure that works are timed to coincide with the resurfacing programme? My noble friend also asked: In such circumstances would the highway authority be able to ensure that the utilities reinstate to an interim level prior to resurfacing? Does the Minister believe that there is scope either for the utility or for the street authority to request, for example, resurfacing or reinstatement, to be done by the other party on a rechargeable basis? A further question put by my noble friend was: Might it not be advantageous for the highway authority to do the reinstatement, or other civil engineering work, for the utility while the authority is carrying out other works in the street? Alternatively, the highway authority may wish the utility to carry out some minor repair work adjacent to the reinstatement". At the Committee stage the Minister agreed to write to my noble friend on this matter. He has done so, and I think it would be useful to quote the Minister's reply. He states in his letter: Although Clause 52 will give the street authority the power to prevent undertakers from breaking up a highway within 12 months of the completion of resurfacing work etc, in practice the arrangements for advance notification and regular liaison meetings between highway authorities and undertakers should allow a process of dialogue to begin a year or more in advance, when a highway authority first reveals its proposed resurfacing work. Utilities may well at that stage agree to phase their own works in a co-ordinating fashion without the threat of the Clause 52 prohibition following the completion of resurfacing. The sort of joint working with the highway authority on the works themselves which you postulated will be perfectly possible under the Bill, and it may well be in the financial interest of both parties to work in that way. We do not believe that additional powers of compulsion for the street authority will be necessary or appropriate in those circumstances. I have quoted from the Minister's letter because we regard that response as being helpful, but it is also clear that the achievement of the sort of co-ordination referred to by my noble friend at Committee stage depends very much on the voluntary co-operation of the utilities. The local authority associations consider that the inclusion in subsection 53(1) of the objective such as that set out in the amendment, combined with the new duties imposed on the utilities in the Government's amendment, would strengthen the street authority's arm in securing co-operation and co-ordination of the type which all want to see.

There is an important issue in relation to consultation which was not raised at the Committee stage. In a circumstance where two undertakers wish to carry out works at the same time it is understood that the street authority will be able to direct in the interests of safety which undertaker should undertake works first.

Another important point which needs to be considered, however, is the question of liability. It may be that the second undertaker's work is delayed but it is given a start date by the street authority on the basis of information received from the first undertaker. The second undertaker, on the basis of that information, enters into an agreement with a contractor. The question which may arise is, who is liable if the completion date of the first undertaker is delayed and as a result there is litigation between the second undertaker and his contractor?

The present subsection 53(3) states that the Secretary of State may issue or approve codes of practice on co-ordination. We must emphasis the view of the local authorities associations that Clause 53 is central to the Bill as a whole. Advice on the implementation of the co-ordination duty must be available to the highway authorities as soon as any parts of the Bill are implemented. Many members of this House have emphasised the importance of this new co-ordination duty. If it is to be effective it will impose a considerable extra burden on the highway authorities, and the extent of that burden will be determined by factors outside the authorities' direct control, primarily the extent of each of the utilities' work programmes. A unusually heavy burden could be imposed as a result of extensive mains renewals in a particular authority's area, for example. The local authority associations are naturally concerned about this potential burden and would welcome an indication from the Minister as to how he envisages adequate resources being made available.

I am sorry to have spoken at some length on this but we agree with the Minister that this question of co-ordination is a vital one and is central to the whole process of the street works part of the Bill.

8.15 p.m.

Lord Brabazon of Tara

My Lords, I thank the noble Lord for accepting the principle of the amendments that I have moved and I shall endeavour to try to meet the points which he raised in his amendments.

First, codes of practice under Clause 53 and the new clause proposed after Clause 53 are likely to be in a single document. Obviously, having heard what the noble Lord has said, we shall do our best to make sure that they are indeed done that way.

The noble Lord quoted from the letter I wrote to the noble Lord, Lord Clinton-Davis, on these points on Clause 53. I do not think that I can go any further at this stage than I did in that letter. As the noble Lord said, co-ordination is very important indeed. It is a critical part of the Bill, but it is a two-way process. The Horne Report came down against giving street authorities overriding powers to direct undertakers. Both sides will be required to comply with the code of practice on co-ordination. If they do so fully, there will be no need for additional powers of direction for street authorities.

As noble Lords have said on many occasions during the proceedings on this Bill, this Bill has been carefully constructed to balance the needs of both the highway authorities and the statutory undertakers. As we proceed this evening we must be very careful to make sure that we do not upset that balance too greatly because it is the result of many years of careful consultation which is still continuing.

The noble Lord asked whether local authorities will have adequate resources for this. We intend that the package as a whole should bring savings to local authorities, for example through the computerised register. The benefits will be very great for local authorities, and I am sure they would feel that any resources they needed to put into this matter would be money well spent.

I shall certainly read most carefully what the noble Lord has said this evening. Obviously, I cannot answer at this stage all the points he made. If anything needs to be picked up by me I shall certainly undertake to write to the noble Lord, but, with that, I hope that the noble Lord will be able to agree to the Government's amendment.

On Question, amendment agreed to.

Clause 100 [The road works authority and other relevant' authorities]:

Lord Brabazon of Tara moved Amendment No. 48: Page 55, line 38, after ("110") insert ("and (General duty of undertakers to co-operate)").

On Question, amendment agreed to.

Schedule 3 [Street works licences]:

Lord Brougham and Vaux moved Amendment No. 49: Page 93, line 40, at end insert ("and shall give him like notice of any notification given by the licensee under paragraph 6."). The noble Lord said: My Lords, this is a probing amendment but it covers an important practical point. Apparatus installed in the street by persons requiring a street works licence may cease to be used or may change hands. Paragraph 6 of the schedule imposes an obligation on licensees to notify the street authority if that happens. As undertakers will have obligations under the Bill to give notice to persons having apparatus on the street in certain circumstances (a notice under Clause 49 is one example) it is important that they are aware of apparatus changing hands or being abandoned.

The noble Lord said: My Lords, the purpose of this amendment is to ensure that the street authorities pass on the information they receive under paragraph 6 of the schedule to the relevant authorities. As I said, this is an important practical point. In the absence of a satisfactory assurance from my noble friend we may have to press the matter again at a later stage. I beg to move.

Lord Tordoff

My Lords, as the noble Lord, Lord Brabazon of Tara, has already said, we now move into an area of delicate balance. It is so delicate that it is possible that I have put my name to amendments which are contradictory in that I find myself in some cases in agreement with people on either side of the argument. I support this amendment very much as a probing amendment. There is the possibility of a serious gap in communications if we do not get it right. I dare say that the local authorities are not desperately wild about this amendment. It may be in the wrong place. I believe that they also accept that the principle lying behind the amendment is a sensible one. The question is whether we have the balance right. It is a very useful way of drawing to the attention of the Minister the problems that can appear if this communication link is not preserved.

Lord Brabazon of Tara

My Lords, as my noble friend has explained, this amendment would add a further notice requirement to the procedures for street works licences. Where there is a proposed change of ownership or abandonment of apparatus placed under a street works licence it is necessary for the licensee to inform the street authority which issued the licence. It is less clear why the licensee should be required to notify all other undertakers with apparatus in the street. That would be rather bureaucratic. If an undertaker is in any doubt it would he a relatively simple matter to check the current use or ownership of apparatus with the street authority. I will, of course, consider what my noble friend said and see if there is any need to improve the Bill in this way. At the moment I am reasonably happy with the way in which the Bill is drafted.

Lord Brougham and Vaux

My Lords, I am grateful to my noble friend. I shall read very carefully what he said and perhaps we can then discuss the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendments Nos. 50 to 52: Page 93, line 42, leave out ("sum") and insert ("fee"). Page 93, line 44, leave out ("charge") and insert ("fee"). Page 93, line 45, leave out ("sum") and insert (fee").

The noble Lord said: My Lords, I beg to move these amendments en bloc. At the same time I shall speak to Amendments Nos. 85, 86, 87, 91, 92, 93, 124, 125, 134, 135, 150 and 151. These are technical amendments. They make clearer provision for the determination of disputes by arbitration. The main amendment to Clause 89 sets out which matters of dispute under this part of the Bill may be determined by arbitration. Disputes arising under the provisions which involve the recovery of costs or expenses incurred may be settled by arbitration if the parties concerned are unable to agree.

However, determination by arbitration will not apply to disputes over the charging of prescribed fees, rights to compensation or claims for contributions to the cost of making good long-term damage to the street under Clause 71. The amendments to Clauses 54, 70 and 78 and to Schedule 3 are in consequence of this amendment and substitute the reference to fees where appropriate. That point was raised in Committee. I beg to move.

On Question, amendments agreed to.

Clause 101 [Permission to execute road works]:

Lord Underhill moved Amendment No. 53: Page 56, line 27, leave out paragraphs (b) and (c).

The noble Lord said: My Lords, this amendment appears on the Marshalled List in the name of my noble friend Lord Carmichael of Kelvingrove and is a probing amendment. Clause 101 was introduced into Part IV of the Bill at Committee stage following consultations between the Scottish Office and the Convention of Scottish Local Authorities. The Scottish highway authorities are now broadly content that the clause is sufficiently closely aligned to Clause 44 in Part III of the Bill to provide for uniform application across the United Kingdom. However, they are unclear as to what kind of work and area the Government envisage prescribing under subsections (1), (2) (b) and (c). For the benefit of noble Lords who may not have the Bill by them, paragraph (b) refers to, persons carrying out works of a prescribed class". Paragraph (c) refers to, persons carrying out works in a prescribed area". It is on those particular factors which I understand the Scottish highways authorities are anxious to have the views of the Government. I beg to move.

Lord Strathclyde

My Lords, I entirely accept that the noble Lord is seeking to probe the Government's mind in this amendment. I shall try to provide him with an answer which is acceptable. It is our intention to bring within the framework of Part IV of the Bill the great majority of cases where apparatus has been placed in the road. We take the view that it is increasingly likely that cases will arise where persons, companies or other private bodies seek to install apparatus in circumstances very similar to those of the statutory undertakers. It would therefore make good sense to have these operations controlled by the legislation we are now considering and to have the operators and their works subject to the duties and conditions set out in Part IV of the Bill.

It is our intention to consult the road authorities on the classes of persons, works and the areas to be prescribed by the Secretary of State for Scotland under the proposed clause before this power is exercised. Additionally, we wish to ensure that, where necessary, there is uniformity of treatment of operators and their works across Britain to ensure a high standard and less disruption to the public, as is envisaged in this Bill.

For those reasons the classes of work to be prescribed might include all installations and telecommunications lines put in by private bodies or organisations for their own dedicated use or the works of cable television companies which would not be classed as statutory undertakers. Similarly, prescribed areas might include all roads designated as traffic-sensitive roads or roads subject to a restriction on works following substantial works for road purposes as in Clause 109.

Having said all that, I hope that the noble Lord is satisfied that these provisions are sensible. We will consult the local authorities before making regulations. Therefore, I hope that he will be willing to withdraw the amendment.

Lord Underhill

My Lords, I am grateful to the noble Lord for his explanation. It proves that the probing was well worthwhile. I am very pleased to know, and I am certain that the highway authorities will also be pleased to know, that there will be effective consultation before any steps are taken and that there is also a desire to achieve uniformity. I thank the Minister again for his observations and help. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 [The street works register]:

8.30 p.m.

Lord Brabazon of Tara moved Amendment No. 54: Page 26, line 23, leave out from ("inspection") to end of line 24 and insert (", at all reasonable hours and free of charge—

1. (a) so far as it relates to restricted information, by any person having authority to execute works of any description in the street, or otherwise appearing to the authority to have a sufficient interest, and
2. (b) so far as it relates to information which is not restricted, by any person.

The Secretary of State may make provision by regulations as to the information which is restricted for the purposes of this subsection.").

The noble Lord said: My Lords, I should like to speak at the same time to Amendment No. 56. These amendments are necessary in order to provide for certain cases where access to information contained on a street works register will need to be restricted on grounds of national security or in order to protect certain technical details. It empowers the Secretary of State to make regulations prescribing the types of information which are to be treated as restricted. It would allow information of this nature to be made available only to other undertakers or to persons with a sufficient interest in the works. I beg to move.

Lord Clinton-Davis

My Lords, I am obliged to the Minister for explaining, albeit briefly, the thoughts underlying the amendment. Can he indicate why it is difficult for him to explain on the face of the Bill with a little greater precision his reason for introducing this proposal relating to restricted information? To do so would not cause too much difficulty but it would then be apparent to those interested why restricted information is to be defined by the regulations.

Can he give an undertaking that he will consult with the Highway Authorities and Utilities Committee, and most particularly with the local authority associations, before any regulations are prescribed under these provisions? Can he confirm that, in dealing with restricted information, the general public is not to be denied access to information about which utility has undertaken or has plans for street works in any street; that the public will have a contact name to whom representations might be made or from whom further information might be obtained and that details of the expected start date and the scope and duration that is likely in respect of any planned work may also be made available in that way?

One has to have regard to the underlying purpose which the Minister has indicated, but perhaps a little greater openness would not come amiss. There is concern about this matter. It is concern which might be allayed not simply by reading the Minister's words in Harsard but by having something more drafted into the Bill which could help in this regard.

Lord Brabazon of Tara

My Lords, we are dealing here with restricted information. I am not certain that I can go along entirely with what the noble Lord has said. He asked what type of apparatus might be involved. It could, for example, be telecommunications apparatus. The noble Lord asked whether we will consult with the highway authorities and utilities on this matter. We shall consult. Members of the public will receive all the information that is necessary to them as road users. I can go no further than that. I do not think there is a case for including anything more on the face of the Bill.

Lord Clinton-Davis

My Lords, there is a difference between information which needs to be restricted for the protection of the realm and information which goes to commercial confidentiality, a doctrine which sometimes—all too often I fear—is abused in this country and indeed elsewhere. Commercial confidentiality can hide a multitude of sins. Can the Minister at least indicate that on issues of alleged commercial confidentiality—such issues are not entirely within his domain whereas matters dealing with the protection of the realm certainly are—the Government will be scrupulous?

Lord Brabazon of Tara

Yes, my Lords, I can certainly give that undertaking. If the amendment is agreed to, the power will be in the hands of the Secretary of State. I can give an assurance that he will act most properly in exercising that power.

On Question, amendment agreed to.

Lord Underhill moved Amendment No. 55: Page 26, line 29, leave out subsection (5) and insert: ("(5) A street authority shall participate in any arrangements made under subsection (4) above").

The noble Lord said: My Lords, this amendment deals with the cost of the computerised street works register. There would appear to be a divergence of views between the Government, the highway authorities and the joint utilities group. Those concerns are unnecessary because everyone is generally in agreement on what should take place. I hope that in explaining the amendment that viewpoint will be accepted.

The effect of the amendment is to delete from the Bill the specific reference to street authorities paying towards the cost of a computerised street works register. The local authority associations are concerned that, although the Bill contains in Clause 47(5) a specific reference to street authorities paying towards the cost of a central street register, there is no parallel reference to the utilities making a contribution. Because of these concerns an amendment was proposed in Committee to enable the Secretary of State to make regulations which among other things would set out arrangements for fees to be charged for the use of the register. However, the Government have refused to accept the case for removing the specific reference in Clause 47(5) to street authority contributions.

When opposing an amendment to delete that reference in Committee, the Minister said: Amendment No. 67 would remove the ability of the Secretary of State to require street authorities to make contributions towards the cost of any arrangements which may be made for the keeping of a central street works register. We cannot accept that local highway authorities … should not contribute towards its cost".—[Official Report, 4/12/90; col. 300.] It must be stressed that the local authority associations do not deny that street authorities should contribute towards the cost of the register. As the Minister explained: The government amendments make it clear that undertakers and other users of the register may be required to contribute towards the cost. We propose therefore that the cost should be shared between the users of the facility, whether they be the highway authority or whether they be the utilities".—[Official Report, 4/12/90; col. 301.]

The local authority associations fully support that approach and agree with the Minister that his amendment, which is now Clause 47(6), provides for exactly that. The problem, however, is why, in addition to that new subsection, the Minister feels that he needs a separate reference to highway authorities' contributions in the preceding subsection. The Minister agreed in Committee to look at the matter further and gave an undertaking to that effect at col. 302 of the Official Report. As we all seem to be in agreement—the utilities group, the highway authorities and the Government —I hope the Minister will see why there should not be this specific reference to the highway authorities, bearing in mind that the noble Lord and the Government actually agree that both the utilities and highway authorities should have responsibility in meeting the cost.

Lord Tordoff

My Lords, this is another case where we seem to be entering the delicate balance situation. I see this as a probing amendment designed to test the Government's mind as regards their interpretation of the clause as it stands. I agree with the remarks made by the noble Lord, Lord Underhill, in that there is some doubt on the matter. However, on the other hand, the National Joint Utilities Group says that it does not like the amendment, although it accepts that there should be a proper balance as regards costs. The group feels that, if the amendment goes through, its members will be left carrying the can for the whole cost. My reading of it indicates to me that that is not true. Nevertheless, we are seeking reassurance from the Minister. Perhaps he can tell us exactly where the balance lies in the Bill as drafted.

Lord Brabazon of Tara

My Lords, I can give that assurance. The balance is there. When we debated the matter in Committee, I explained that we take the view that local highway authorities, which will enjoy a new management tool in the form of a computerised register, should make an appropriate contribution towards its costs. We are all agreed on that aspect of the matter.

If the preferred option is for a system with some centralised features, the Secretary of State may need to be able to require local highway authorities not only to participate in the arrangements by acquiring the appropriate equipment and so forth, but also to contribute to the costs of setting up and running the central part of the system. These costs, split between a large number of individual users, would not be large. In fact, a consultant's feasibility study estimated in 1988 that the average contribution towards the central cost per user—that would include street authorities —would be about £13,000 initially, with annual running costs of about £1,100. I do not think that anyone would quibble too much about those figures.

However, the difference between the undertakers and the highway authorities is that, unlike undertakers, who may be required to contribute to the full cost of the system by means of notice fees, local highway authorities will need to be expressly required to make any contributions. The difference lies in the fact that undertakers will be required to meet ongoing costs basically every time they serve a notice. We have said that the potential users of the register will be consulted throughout its development. I can reaffirm that undertaking. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Underhill

My Lords, I hope that I do not appear to be rather dull and obtuse but, in the light of what the Minister has just said, I do not understand why he cannot accept this amendment. There is general agreement that the street authorities should contribute towards the cost of the register. There is also agreement that the utilities group should contribute. Therefore, by accepting our amendment, the Government would ensure that that is the position. It seems to me that the Bill as drafted puts the emphasis on the street authority.

I am sure that if further discussions were allowed to take place between the utilities group and the highway authorities, it would be possible to thresh out a form of words which would convey exactly what the Government have in mind. In effect, there is no difference between us, but if the amendment is not carried there will be; there will be a difference of emphasis. Nevertheless, I shall read carefully what the Minister said and I shall seek consultation with the highway authorities and the utilities group. As the noble Lord, Lord Tordoff, said, we all want to achieve a balance in the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 [The road works register]:

Lord Brabazon of Tara moved Amendment No. 56: Page 58, line 9, leave out from ("inspection") to end of line 10 and insert (", at all reasonable hours and free of charge—

1. (a) so far as it relates to restricted information, by any person having authority to execute works of any description in the road, or otherwise appearing to the authority to have a sufficient interest, and
2. (b) so far as it relates to information which is not restricted, by any person.

The Secretary of State may make provision by regulations as to the information which is restricted for the purposes of this subsection.").

On Question, amendment agreed to.

8.45 p.m.

Clause 48 [Advance notice of certain works]:

Lord Swinfen moved Amendment No. 57: Page 27, line 11, at end insert: ("( ) Requirements under this section shall prescribe that, advance information, including information on the start date, expected duration and safety measures taken for disabled persons is made available to local organisations of and for disabled people.").

The noble Lord said, My Lords, this amendment, which is based on a recommendation in the Home Report, would impose a duty to give advance notice of street works to local disability organisations so that their members can be informed. If noble Lords will look at subsection (1) of this clause, they will see that there is already a duty to give advance notice of prescribed works to the street authority. I should have thought that such notice could have been copied to organisations of and for disabled people. In my view it would not be too difficult.

The Horne Report, upon which the Bill is based, specifically recommended that the utilities and the highway authorities should assist local organisations of blind and disabled people to provide advance information to their members about street works. The new computerised street works information register should make it straightforward for authorities to fulfil that obligation.

In their response to the report in 1986, Her Majesty's Government accepted that recommendation. It is, therefore, both surprising and disappointing to note that this provision has not been written into the Bill. A similar amendment was moved in Committee. The present amendment has been slightly altered so as to take account of a point raised by the noble Baroness, Lady Masham. When we discussed the matter in Committee my noble friend replied: What matters most is that information on the starting date and likely duration of those works most likely to affect disabled people reaches them at the right time".—[Official Report, 6/12/90; col. 304.] He then went on to state that that would be covered by suitable guidance to local authorities on their duty to co-ordinate works. However, guidance is not legally binding. There is likely to be a patchy result in practice, with some authorities providing advance notice and others simply not bothering. It is important that standards are consistent nationally and that the information that disabled people receive does not depend upon where they live or on the approach which their authority chooses to adopt. Chapter 17 of the Horne Report states: Our most substantial evidence in this field came from associations concerned with the blind and the disabled. We have received both written and oral evidence that the standards which the utilities lay down are not always observed in practice. There is no doubt that in a few cases the practice on site falls a long way short of the proper standards". As I live in the country, I notice that this kind of situation frequently occurs. For example, one can go round a corner and suddenly find oneself confronted with roadworks with no prior warning; indeed, the initial warning is a sign placed on the first heap of earth which has been excavated. Such an example underlines the need for clear legislative duties rather than guidelines which can be ignored. In addition, my noble friend gave the impression in Committee that the onus was on the local groups to find out what street works were taking place rather than on the authority. Street works pose a serious hazard for people with various kinds of disability, especially those who are blind and those who are in wheelchairs. I beg to move.

Lord Clinton-Davis

My Lords, I support the amendment moved by the noble Lord, Lord Swinfen. There are one or two points which I should like to underline. He quite rightly said that guidance is not legally enforceable. There appears to be no good reason why it should not be enforceable in this particular instance. Therefore, the matter needs to be addressed on the face of the Bill. It is true to say that that is a view which is not taken by some, or any, of the local authority associations. To do them justice, they agreed that the relevant HAUC working parties will address the question of provision of information to groups representing people with disabilities. But that is to look at the matter on a national basis. We are dealing here with matters that are essentially local. It will not be easy for national groups dealing with people with disability to come to grips with matters of this kind. I am not in any way questioning the good faith of the local authority side of HAUC or indeed anybody connected with it; but I express anxieties which have already been eloquently expressed by the noble Lord, Lord Swinfen.

The noble Lord also referred to the inconsistency of approach. There is little doubt that that will arise if the matter is to be dealt with only by guidance. The reason may be that local authorities, swamped as they are with additional responsibilities—for example, under these provisions, under the provisions of the Environmental Protection Act and a whole host of other matters—may not have had available to them compensating resources to ensure that they are able to carry out those functions properly. Almost certainly the net result will be that some local authorities will discharge their responsibilities to the full and others may backslide. It happens over and over again, not necessarily because they want to but because they are strapped for resources. That is my anxiety. When dealing with matters concerning people with disability the issues need to be specifically addressed.

I hope the Minister will feel that the plea made to him by the noble Lord, Lord Swinfen, is something to which he can respond positively. I have the greatest pleasure in supporting what was said by the noble Lord opposite.

Lord Tordoff

My Lords, my name is also appended to the amendment and I support it. In addition to the points made so well by the noble Lord, Lord Swinfen, it provides another checklist with which people can remind themselves of their obligation to the disabled, which does not always enter one's mind at the right moment.

Perhaps I may revert to a topic raised at the Committee stage of the Bill regarding the piece of textured pavement outside St. Stephen's Entrance at what is now a pelican crossing. I feel that we should not have had to protest so loudly and so long if the obligation had been on the undertaker to inform disability groups of the work. They would immediately have said, "Before you tear up that pavement let us speak to the ministry or the local authority". I thank the Minister and his department for their intervention on the question of that piece of textured pavement. I am delighted to say that, although it has not yet been replaced, I understand from a letter the Minister was kind enough to send to me that the local authority has agreed to replace it and to review its attitude towards textured and tactile pavements in the whole of the Westminster area. That is a big step forward.

As I say, had the obligation been laid upon the undertakers in the beginning, it is possible that the mistake of tearing up that piece of pavement would not have been made. That is an additional reason why disabled groups should be informed. I understand the Minister may have difficulty with some of the wording in the amendment. What constitutes, local organisations of or for disabled people", may be a broad spectrum in various parts of the country. However, I hope the Minister will accept that there should be a certain amount of positive discrimination in such cases.

The friend who drew my attention to that piece of pavement outside St. Stephen's Entrance later told me that on the day she came to the House for a meeting the fact that the pavement had been torn up totally disoriented her. She had no idea where she was. That can be a severe imposition on people who are normally mobile but suddenly find these props missing. They mean nothing to us, but to a blind or otherwise disabled person they may make the difference between being able to get out and about and lead a normal life or being confined either to an institution or their own homes. I support the amendment.

Lord Brabazon of Tara

My Lords, we discussed this matter in Committee. At that time I explained that a statutory requirement on undertakers of street works to supply advance notice of their many thousands of works to particular local organisations was not considered to be an effective method of getting information to the blind and disabled people who need it. What mattered most was that information on the starting date and likely duration of the particular works most likely to affect vulnerable road-users reaches those people at the right time.

I am pleased to say that the Highways Authorities and Utilities Committee has taken up the suggestion made at that time that there should be discussions with groups representing blind and disabled people of the most effective way of involving local groups in the advance planning of works. By the inclusion of suitable guidance to undertakers and local highway authorities in the code of practice on co-ordination of works and by the effective use of the computerised street works register we believe it will be possible more effectively to improve the provision of advance information on works for blind and disabled people.

The noble Lord, Lord Clinton-Davis, said that some local authorities may be under pressure on resources. But one of the purposes of the Bill should be to save local authority resources. My noble friend Lord Swinfen referred to the Home Report. That recommended providing information to disabled groups. On the other hand, it did not impose a statutory requirement to copy notices of all works to such groups. I point out to my noble friend that there are many thousands of such groups.

Our discriminatory approach will be agreed by the authorities and the utilities and will work in practice. Compliance with the code of practice on coordination will be taken to demonstrate that an authority or undertaker has complied with its general duty. Failure to comply with that duty will be a criminal offence.

I believe we have achieved the right approach. I listened carefully to the noble Lord, Lord Tordoff, and am glad that the right result was achieved with regard to the textured pavement outside the Palace. I should point out that that particular roadwork will not be covered by the Bill, as the noble Lord is aware, but we shall come later to an amendment regarding roadworks where street undertakers are concerned. I believe that the approach is right and I hope my noble friend will agree.

Lord Swinfen

My Lords, I thank my noble friend for copying to me and to the noble Lord, Lord Clinton-Davis, the letter he wrote to the noble Lord, Lord Tordoff, regarding the paving outside the Palace. I appreciate that. I am somewhat disappointed with the reply of my noble friend, particularly as at Committee stage he said that what mattered most was that information of the starting date and the likely duration of the works reached blind and disabled people. In one voice he is saying that they should be told and in another that they should not. I have some difficulty understanding that.

At this late hour I do not wish to embarrass my noble friend by dividing the House and possibly having the amendment counted out. I shall read carefully what he has said and reserve my right to come back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

Clause 105 [Advance notice of certain works]:

Lord Strathclyde moved Amendments Nos. 58 to 60: Page 58, line 30, leave out ("proposed"). Page 58, line 34, leave out ("the") and insert ("under this section an"). Page 58, line 35, leave out second ("as may be").

The noble Lord said: My Lords, these minor amendments bring the provisions into line with the parallel provisions in Part III relating to England and Wales. I beg to move Amendments Nos. 58 to 60 en bloc.

On Question, amendments agreed to.

Clause 49 [Notice of starting date of works]:

Lord Underhill moved Amendment No. 61: Page 27, line 23, at end insert ("or in which notice is required only in respect of works on a traffic sensitive street.").

The noble Lord said: My Lords, this is another amendment in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff. The effect is to enable the Secretary of State to prescribe cases in which notice of street works is required only on traffic sensitive streets. I understand that the view of the National Joint Utilities Group is that if the amendment permits some classes of work to be undertaken without notice except on traffic sensitive routes, it would not oppose the amendment but would support it. I believe that the amendment has that effect.

This is a probing amendment designed to explore the links between Clause 49(2) and Clause 57. At the Committee stage, an amendment was tabled which would remove the power available to the Secretary of State to prescribe cases in which no notice is required before street works can be undertaken. It may be recalled that, responding to that amendment, the Minister quoted one example of circumstances in which notice would not be required: lifting a manhole cover. The local authority associations accept that on most roads notice could not reasonably be required for lifting a manhole cover. However, this type of operation could cause significant disruption if it were undertaken at a peak time on a traffic sensitive route.

The amendment would enable the Secretary of State to prescribe cases such as lifting a manhole cover in which notice would be required only on a traffic sensitive route. It would be helpful if, when the Minister replies, he gives confirmation of the Government's intentions on the matter; and further, whether he can give an answer which is still required to the question posed at Committee stage. The question concerned the type of street works for which notice would never be required so far as the Government are concerned. I believe the utilities group welcome the amendment. The highways authorities have asked us to put it forward and I am certain that the Government will see the common sense in it. I beg to move.

Lord Brabazon of Tara

My Lords, I hope the noble Lord will find my explanation satisfactory. If general exemptions from notice requirements are to be prescribed in respect of certain very minor street works, we accept that it may be necessary to preserve the requirement to give notice of such works where they take place in streets designated as traffic sensitive. Perhaps the example that the noble Lord, Lord Underhill, gave is one of those.

Since there is already provision under Clause 57 for regulations on notice requirements to make special provision in the case of works in traffic sensitive streets, the noble Lord's amendment is not necessary to allow this to be done. I hope that that answer will satisfy him.

Lord Underhill

My Lords, the Minister's reply seems quite reasonable, but naturally I am certain that he will Agree that we would wish to read what he says to see what effect it will have on the clause to which he referred and whether or not it will be satisfactory to the utility group and the local authority associations. On that basis, subject to the proviso that we may wish to come back on Third Reading if we are not satisfied, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 [Power to give directions as to timing of street works]:

Lord Brougham and Vaux moved Amendment No. 62: Page 28, line 1, at end insert ("in relation to any street designated by them as traffic sensitive").

The noble Lord said: My Lords, this amendment is also to do with traffic sensitive streets. Under the terms of the draft code of practice jointly prepared by the utilities and highway authorities, the powers of the street authority to give directions to undertakers as to the timing of street works are only intended to apply to traffic sensitive streets.

The purpose of this amendment is to obtain confirmation from my noble friend that the Government intend in their regulations to restrict the power on streets designated as traffic sensitive. I beg to move.

Lord Underhill

My Lords, I regret to say to the noble Lord, Lord Brougham and Vaux, that the amendment, is not acceptable to the local authority associations. While we do not necessarily reflect everything that the local authority associations desire, they are an important unit in connection with street works.

The aim of the amendment is to confine the issuing of directions under Clause 50 to traffic sensitive streets. Clause 57 establishes a notice regime in relation to streets specifically designated as being traffic sensitive. It is likely that these will cover about 12 per cent. of the highway network and will be streets such as main commuter routes where utility works at particular times would cause severe disruption.

Clause 50 provides a street authority with the power to give directions on the times at which street works should be carried out if those works are likely to lead to serious disruption. Subsection (2) makes it clear that the procedure for issuing such a direction will be set out in regulations made by the Secretary of State. It is understood that such regulations will also set out the circumstances in which a direction could be issued.

The local authority associations see this clause as providing a useful means of dealing with one-off cases where works not on the traffic sensitive route network could result in serious disruption. However, the utilities are concerned that the highway authorities will abuse the power, using it by default to impose similar restrictions to those enforced on a traffic sensitive route network elsewhere on the highway network.

The local authority associations are confident that abuse of this type will not occur, but in any case the regulations to be made under subsection (2) could and should prevent any such abuse. This appears to be one of those cases where before we rush into making such an amendment there should be further discussions with the Highway Authorities and Utilities Committee to see whether there can be some agreement on it. There appears to be a view acceptable to the local authority associations, (provided that the utilities group do not carry through their view) that there would be abuse if the provision were carried through.

Lord Tordoff

My Lords, I believe we are close to reaching a point of balance on this matter. The National Joint Utilities Group seeks some firm reassurance from the Government that the Government see no possibility of the powers contained in the clause being abused. If such abuse were to occur, it would be a serious matter for the utilities group. I am sure the noble Lord, Lord Underhill, accepts that. The local authority associations say they are confident about the issue, but clearly the National Joint Utilities Group is not confident. Reassurance is needed here. Local authorities have suggested that regulations could be made under subsection (2). Some indication of whether or not that is the case would be welcomed by all concerned.

Lord Brabazon of Tara

My Lords, on this amendment I find myself on the whole in agreement with the noble Lord, Lord Underhill, rather than with my noble friend. As has been said, this amendment would limit to works on streets designated as traffic sensitive the power of a street authority to direct times of working. We believe that would be unnecessarily restrictive. There will inevitably be cases where street works on roads which have not been designated as traffic sensitive will cause serious disruption to traffic. An example would be works located close to a junction with a busy traffic-sensitive road where the works are not themselves situated on the designated road. Another example could be works planned to take place on a road to be used for a special event on a particular day which is not traffic sensitive at other times and has not been so designated. The power to direct times of working may only be used where to do so would avoid or reduce serious disruption to traffic. Further restrictions on its use are not considered necessary or desirable. For that reason I cannot commend the amendment.

Lord Brougham and Vaux

My Lords, I thank my noble friend for his reply. I also take note of what the noble Lords, Lord Underhill and Lord Tordoff, have said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Notice of emergency works]:

Lord Brabazon of Tara moved Amendment No. 63: Page 28, line 19, after ("hours") insert ("(or such other period as may be prescribed)").

The noble Lord said: My Lords, in moving Amendment No. 63, I wish to speak also to Amendments Nos. 64, 97, 98, 99 and 100. These amendments will allow the notice requirements for emergency works better to reflect practical constraints on undertakers. As presently drafted, Clause 51 requires undertakers "in any event" to notify the relevant authorities within two hours of commencing any emergency works. However, in some instances this requirement would pose an unnecessary and onerous burden on undertakers and would serve little practical purpose, particularly where works are carried out on roads not designated as traffic sensitive.

The amendment to Clause 51 therefore empowers the Secretary of State to make regulations prescribing cases, for example to cover emergencies which occur at night or on public holidays, where the two-hour limit would be relaxed.

The two amendments to Clause 57 are necessary in consequence of this amendment. The first provides that any regulations made under Clause 51 may make special provision for works in traffic-sensitive streets. This could, for example, require all emergency works in such streets to be notified within two hours of works being begun. The second of these amendments replaces the words "proposed to be executed" in Clause 57 by a reference to street works. This is necessary as the works in question may be emergency works and may therefore already have been begun. The straightforward reference to street works is therefore more appropriate. I beg to move.

Lord Underhill

My Lords, as drafted, Clause 51 requires a utility to inform the street authority within two hours of the start of emergency works. The government amendment would allow a different and possibly longer deadline for notification to be prescribed in the regulations. It is difficult to argue against the case for flexibility in cases such as this. However, it is important that the Minister should explain the reason for the amendment. Does the Minister expect to prescribe an alternative period? What are the circumstances in which the Minister would envisage taking advantage of the flexibility allowed by the amendment?

The Highway Authorities and Utilities Committee working party on notice periods has agreed to the two-hour deadline. As noble Lords will know, this is a joint committee of the highway authorities and the utilities. The local authority associations would resist any move to lengthen the period available to the utilities to give notice at the start of emergency works. This is particularly important in relation to traffic- and pedestrian-sensitive streets.

This again is one of those cases to which the noble Lord, Lord Tordoff, has referred time and time again, of maintaining a balance. As the working party has agreed with the deadline, I hope the Government will give some satisfactory explanation of their amendment.

The local authority associations would be prepared to accept a longer notice period in circumstances where an emergency has occurred outside normal working hours and the authority in whose area the incident has occurred does not have arrangements for handling the receipt of notices outside normal office hours. In those cases the deadline for receipt of notification should be the start of the next working day. I should be extremely grateful if the Minister could deal with those points.

Lord Brabazon of Tara

My Lords, when the noble Lord reads the speech that I made when moving the amendment he will find that I dealt with some of the points he raised. I envisaged night time and public holidays, for example, as instances in which the two-hour limit could be relaxed for roads which were not traffic sensitive. We would extend the length of the period beyond two hours only where necessary and practicable.

As I indicated, we shall consult the HAUC further before making the regulations which I described and which are necessary under this provision. I hope that with that assurance the noble Lord will be able to accept the amendments.

On Question, amendment agreed to.

Clause 108 [Notice of emergency works]:

Lord Brabazon of Tara moved Amendment No. 64: Page 60, line 6, after ("hours") insert ("(or such other period as may be prescribed)").

On Question, amendment agreed to.

9.15 p.m.

Clause 52 [Restriction on works following substantial road works]:

Lord Underhill moved Amendment No. 65: Page 28, line 38, leave out ("twelve months") and insert ("two years").

The noble Lord said: My Lords, the amendment deals with the ban on work in newly resurfaced streets. The effect of the amendment would be to extend the ban on utility works in newly resurfaced streets from one year to two years.

Clause 52 prevents a utility from digging up a street which has been subject to substantial road works provided that the highway authority gives the utilities adequate notice of its plans. As drafted, the prohibition lasts for 12 months and the clause provides for a utility to undertake emergency works and other works executed with the consent of the highway authority.

There is a requirement on the highway authority not to withhold consent for such work unreasonably. The clause also provides for appropriate exemptions from the 12 months restriction on works to be prescribed in regulations. It is important to appreciate that the clause simply re-enacts and rephrases Section 156 of the Highways Act 1980, which includes the 12 months period.

The local authority associations consider that that is within the spirit of the improved co-ordination and advanced planning which the Bill is intended to bring about to increase the length of the prohibition from one to two years. There will be general agreement that there is nothing more aggravating to the public and nothing which better exemplifies the lack of co-ordination and planning under the present system than the instance of a recently resurfaced road being dug up. Noble Lords would no doubt be able to recount experiences of their own.

It is therefore important that the Bill clearly addresses the issue and that the highway authorities are given the necessary powers of co-ordination and direction to enable them to reduce such instances to an absolute minimum. The Bill will make both highway authorities and the utilities plan and programme their works further in advance than has previously been the case.

The past few years have seen a dramatic improvement in medium and long-term planning by highway authorities of their structural maintenance work. Many authorities are now working to three-year rolling programmes for structural maintenance. That is fully in line with the local authority association's highway maintenance code of good practice, the adoption of which has been strongly commended to all local authorities by transport Ministers.

It should be stressed that highway authorities share the utilities' concern that emergency works and service connections which genuinely could not have been planned before the road works were undertaken should not be caught by the prohibition on street works. The associations are satisfied that the duty on the highway authorities not to withhold their consent unreasonably for such works, together with the regulation-making powers, will enable the utilities' concerns to be met. The issue of what categories of work should be exempt from the ban is to be considered shortly by the HAUC notices working party.

The authorities take the view that it is only right that the public should benefit from the better planning and programming of works which will result from the Bill. Provided that special cases such as emergency works and service connections are properly covered in regulations, the extension of the prohibition to two years should contribute to achieving that objective without undermining the ability of utilities to provide an efficient and effective service to their customers.

I am certain that this is another case in which there could be agreement between the street authorities and the utility groups. I beg to move.

Lord Brougham and Vaux

My Lords, perhaps I may say briefly that the utilities are against this amendment because they are having further discussions with the highway authority and hope to bring forward proposals that will be jointly acceptable to both. I hope that the noble Lord will withdraw his amendment.

Lord Tordoff

My Lords, I should like to make a few brief comments on two points. I recognise that the utilities are opposed to this amendment as it stands. First, if one did go to two years, one would probably have to extend the notice period from three months to six months, which might be a quid pro quo. I welcome the fact that the utilities and the local authorities intend to get together again to thresh out this matter a little further. We should encourage that. Clearly it would not be our intention to press this amendment tonight.

In my view, however, underlying this discussion is the need for Parliament to give comfort to the general public, who above all want to see the digging up of roads and pavements reduced to an absolute minimum and have available the longest possible time which is consistent with both the needs of the highway authority and the utilities, in order that the citizens can go about their daily round without having to negotiate road works. If together they can come to some amicable agreement on the longest possible time for that, it will be in everybody's interest.

Lord Brabazon of Tara

My Lords, it is indeed a central purpose of these parts of the Bill to improve the planning and co-ordination of all kinds of street works. It will have failed in that purpose if roads which have been resurfaced or had substantial road works on them are dug up soon afterwards by the utilities. As the noble Lord, Lord Underhill, said, there is little more irritating to the general public than finding that happen. In fact, I think that he spoke words that I myself used earlier in our discussion on the Bill, and I am delighted that he should choose to do so. In many cases there will be no good reason to dig up such a road for several years.

Clause 52 simply provides a mechanism for the highway authority, by giving formal notice of its intended road works, to impose a general restriction on street works for the 12 months following the completion of its works. That is considered a reasonable period which allows undertakers contemplating works in the street either to bring forward their plans or put them back for at least a year. To allow a two-year restriction to be imposed by the highway authority would place a considerable burden on utilities' forward planning of works. It would increase the scope for disputes over which works were allowed to be executed during the period of the restriction with the consent of the highway authority.

We do not therefore consider this amendment to be either desirable or necessary. It is intended nevertheless that the code of practice on co-ordination of works will emphasise the importance of early exchange of information on planned works and agreement on the phasing of street works and works for road purposes. In practice the period between major works on a particular street should be as great as reasonably practicable.

I hope that, if the utilities and the highway authorities can get together on this matter, we can go to two years or even longer. I have to agree with my noble friend Lord Brougham and Vaux that I would rather not see it on the face of the Bill at this stage.

Lord Underhill

My Lords, the problem is that on the face of the Bill it will show 12 months. I wonder whether the Minister, with the leave of the House, could deal with a possible compromise which has been suggested to me. At present the Bill requires authorities to give three months' notice of substantial road works in order to benefit from the one-year ban. A compromise, which I understand has been proposed by the highway authorities, is to amend the Bill to provide for a one-year ban where three months' notice is given and a two-year ban where six months' notice is given. It may be that reference to such a compromise could be dealt with at the next stage of the Bill. Unless there is a compromise of that kind at Third Reading the 12-month provision will be written into the Bill. That is one of the problems of not accepting my amendment.

I should be grateful if the Minister is able to deal with the point that I raised. He may like to consider it further before he makes a decision.

Lord Brabazon of Tara

My Lords, I shall certainly consider the point made by the noble Lord. However, it will not be up to me. If the noble Lord can persuade the utilities that that would be a suitable compromise, and if the highways authorities and utilities can agree to it, I should find no objection to putting it into the Bill. Whether it can be put in before Third Reading, I rather doubt. This Bill must go through another place. I cannot go further than that myself.

Lord Underhill

My Lords, I am grateful to the Minister for that contribution, which will be helpful. It may well be that we cannot do it before our Third Reading, but what the Minister has said may be very helpful when the Bill proceeds to another place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 66: Leave out Clause 52.

The noble Lord said: My Lords, with the leave of the House I shall move Amendment No. 66 and speak at the same time to Amendments Nos. 67, 68 and 69. These amendments substitute a clearer version of the present Clause 52 which provides for a 12-month restriction on works where substantial road works are carried out. The new provision is centred around a power for the street authority to publish a public notice where it is proposed to carry out substantial road works. It is this notice which, in effect, imposes the 12-month restriction on street works.

The revised clause extends the power to impose restrictions to all street authorities so as to include street managers as well as highway authorities. It is still confined to highways which consist of or include a carriageway. It empowers the Secretary of State to prescribe the manner in which the notice shall be published and states that it must specify the nature and location of the proposed works and the extent of the restriction. Unlike the clause as drafted, this will enable the street authority to specify the part of the road to which the restriction applies; for example, there may be circumstances where a restriction would be limited to the carriageway following resurfacing of the road.

The amendment also states that a copy of the notice should be sent to persons known to be likely to be particularly concerned in particular cases but provides that failure to do so shall not affect the validity of any restriction it imposes. I think that it is better than the original clause. I beg to move.

Lord Clinton-Davis

My Lords, I am pleased indeed that the Minister has introduced this amendment because it goes some way towards clarifying the original Clause 52, and certainly he succeeded in at least some measure in that regard. But may I ask him to clarify a couple of points which I hope he will be able to do tonight?

In subsection (1) (b) there is the word "resurfacing". The local authority associations have assumed that this word is meant to include treatments such as surface dressing. Perhaps the Minister can let us have some indication as to whether he agrees with that.

Secondly, although the definition of "substantial road works" is given in terms of carriageway works, the assumption has been made by the local authority associations that the restriction applies to work in the footway as well as in the carriageway. Again, therefore, I ask the Minister to clarify the position in so far as that is concerned.

Lord Tordoff

My Lords, similarly the joint utilities group has some questions about this matter. Again they welcome the change in the clause; and the question of footways has been raised by them as well. They also make the point that they do not see any good reason why failure by street authorities to supply undertakers or other authorities with a copy of the notice should not affect the validity of the restriction. Otherwise, they say, what is the point of requiring copies of the notice to be served. This is quite important for undertakers and it is right that every step should be taken to ensure that they receive a notice.

While notices will have to be published in newspapers no doubt, it is not customary for statutes which require notices to be served to go on to say that it does not matter if they are not served. It would also be somewhat foolish if the restrictions precluded undertakers from lifting manhole covers, emptying gulleys or inspecting water meters. But on the face of it that is the effect of subsection (6), which refers to opening as well as breaking up. I shall be glad if we can have some reassurance on that point.

The undertakers claim that they must be able to respond to unforeseen applications from new customers for services in respect of which it is unreasonable to wait for 12 months. I know that the Minister is sympathetic towards that and I believe that the matter is to be discussed by the HAUC. I hope that the Government will be prepared to come forward at a later stage with appropriate amendments in order to give effect to any recommendations coming from that source.

Section 156 of the Highways Act 1980, on which the clause is based, provides for arbitration if the highway authority's consent is unreasonably withheld. Is it the Government's intention to introduce a similar clause at a later stage, particularly in view of the offence provisions of the clause?

Lord Swinfen

My Lords, perhaps in response my noble friend will explain the prescribed manner of publishing the notices, because that may be of assistance to disabled people.

9.30 p.m.

Lord Brabazon of Tara

My Lords, a number of noble Lords have asked questions about the new clause. I am able to answer some of them now but I must reflect on others and write to noble Lords. The word "resurfacing" has its normal meaning and will depend on the extent of the surface dressing. I am not a road engineer nor, I suspect, is the noble Lord, Lord Clinton-Davis, but no doubt those who are will understand the meaning.

The noble Lord also asked about the definition of the carriageway and how it will affect the pavement. As far as I am aware, the carriageway affects the whole road, including the pavement. If I am wrong I shall correct that statement. The noble Lord, Lord Tordoff, mentioned the utilities' anxieties in respect of new customers. We have discussed that matter at considerable length and the new clause is no different from the clause it replaces. I hope that we now have a satisfactory understanding. Opening a manhole cover could be one of the cases to be prescribed under subsection (5) (b) to be exempt from restrictions. I hope that that will be of encouragement to the utilities.

My noble friend Lord Swinfen asked how the notification will be published. Regulations for such notifications include a requirement to publish details of the proposed restriction in the London Gazette and local newspapers in order to alert anyone contemplating works in the street concerned. Therefore, the notifications might be of benefit to the disabled.

I shall read Hansard to ensure that I have answered all the points raised by noble Lords. If I have not, I shall reply by letter. I hope that in the meantime the amendments can be accepted.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 67: After Clause 52, insert the following new clause:

Restriction on works following substantial road works

(".—(1) Where it is proposed to carry out substantial road works in a highway which consists of or includes a carriageway, the street authority may by notice in accordance with this section restrict the execution of street works during the twelve months following the completion of those works.

For this purpose substantial road works means—

1. (a) works for road purposes, or such works together with other works, resulting in—
1. (i) the use by vehicles of the carriageway being prohibited, or
2. (ii) the width of the carriageway available for vehicular traffic being reduced to less than two-thirds of its width, or
2. (b) re-surfacing extending to one-third or more of the width of the carriageway.

(2) The notice shall be published in the prescribed manner and shall specify the nature and location of the proposed works, the date (not being less than three months after the notice is published, or first published) on which it is proposed to begin the works, and the extent of the restriction.

(3) A copy of the notice shall be given to each of the following—

1. (a) where there is a public sewer in the part of the highway to which the restriction relates, to the sewer authority,
2. (b) where the part of the highway to which the restriction relates is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,
3. (c) where in any other case the part of the highway to which the restriction relates is carried or crossed by a bridge, to the bridge authority, and
4. (d) to any person having apparatus in the part of the highway to which the restriction relates;

but a failure to do so does not affect the validity of the restriction imposed by the notice.

(4) A notice ceases to be effective if the works to which it relates are not substantially begun—

1. (a) on or within one month from the date specified in the notice, or
2. (b) where street works are in progress on that date in the part of the highway to which the restriction relates, within one month from the completion of those works,

or, in either case, within such further period as may be agreed between the street authority and the person to whom the notice is given.

(5) An undertaker shall not in contravention of a restriction imposed by a notice under this section break up or open the part of the highway to which the restriction relates, except—

1. (a) to execute emergency works,
2. (b) with the consent of the street authority (which shall not be unreasonably withheld), or
3. (c) in such other cases as may be prescribed.

(6) If he does—

1. (a) he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale, and
2. (b) he is liable to reimburse the street authority any costs reasonably incurred by them in reinstating the highway.

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

On Question, amendment agreed to.

Clause 109 [Restriction on works following substantial works carried out for roads purposes]:

Lord Brabazon of Tara moved Amendment No. 68: Leave out Clause 109.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 69: After Clause 109, insert the following new clause:

Restriction on works following substantial works carried out for road purposes

(".—(1) Where it is proposed to carry out substantial works in a road which consists of or includes a carriageway, the road works authority may by notice in accordance with this section restrict the execution of road works during the twelve months following the completion of those works.

For this purpose substantial works means—

1. (a) works for road purposes, or such works together with other works, resulting in—
1. (i) the use by vehicles of the carriageway being prohibited, or
2. (ii) the width of the carriageway available for vehicular traffic being reduced to less than two-thirds of its width, or
2. (b) re-surfacing extending to one-third or more of the width of the carriageway.

(2) The notice shall be published in the prescribed manner and shall specify the nature and location of the proposed works, the date (not being less than three months after the notice is published, or first published) on which it is proposed to begin the works, and the extent of the restriction.

(3) A copy of the notice shall be given to each of the following—

1. (a) where there is a sewer vested in a local authority in the part of the road to which the restriction relates, to that authority;
2. (b) where the part of the road to which the restriction relates is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,
3. (c) where in any other case the part of the road to which the restriction relates is carried or crossed by a bridge, to the bridge authority, and
4. (d) to any person having apparatus in the part of the road to which the restriction relates;

but a failure to do so does not affect the validity of the restriction imposed by the notice.

(4) A notice ceases to be effective if the works to which it relates are not substantially begun—

1. (a) on or within one month from the date specified in the notice, or
2. (b) where road works are in progress in the part of the road to which the restriction relates on that date, within one month from the completion of those works,

or, in either case, within such further period as may be agreed between the road works authority and the person to whom the notice is given.

(5) An undertaker shall not in contravention of a restriction imposed by a notice under this section break up or open the part of the road to which the restriction relates, except—

1. (a) to execute emergency works,
2. (b) with the consent of the road works authority (which shall not be unreasonably withheld), or
3. (c) in such other cases as may be prescribed.

(6) If he does—

1. (a) he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale, and
2. (b) he is liable to reimburse the road works authority any costs reasonably incurred by them in reinstating the road.

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

On Question, amendment agreed to.

Clause 53 [General duty of street authority to co-ordinate works]:

[Amendment No. 70 not moved.]

Lord Brougham and Vaux moved Amendment No. 71: Page 29, line 43, at end insert: ("(d) to have regard to the obligations of undertakers under any enactment with respect to their service to their customers").

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 75 and 76. The purpose of Amendment No. 71 is to ensure that in discharging its co-ordinating functions the street authority gives due weight to the importance of undertakers being able to satisfy their statutory service obligations, including in the case of gas, water and electricity companies the stringent standards laid down in their appointments.

The purpose of Amendments Nos. 75 and 76 is to make it clear that the provisions of the code of practice will apply equally to Clauses 48 to 53 inclusive and not to Clause 53 alone as the present wording implies. Both amendments are designed to extract a clear statement of the intentions underlying Clause 53. The amendments would help the utilities. I should, therefore, like to consider the Government's response before deciding on further action. I beg to move.

Lord Brabazon of Tara

My Lords, undertakers have various service obligations under enactments which need to be taken into account in the planning of street works. It is not, however, considered appropriate to place a statutory requirement on the street authority to have regard to such obligations when exercising its duty to co-ordinate works in its streets. The code of practice under Clause 53 may contain general guidance on undertaker service obligations, but that is not to be an overriding factor in deciding how best to co-ordinate works.

The last two of my noble friend's amendments would require the code of practice issued for the purpose of Clause 53 also to give general guidance on matters covered in Clauses 48 to 52. However, whereas the very general duty to co-ordinate works in Clause 53 requires a code of practice to give it content, the provisions in the preceding clauses include rules as to the giving of notices and directions which have appropriate legal consequences. It would unnecessarily complicate those legal duties to supplement the provisions with codes of practice approved under the Bill.

For those reasons we do not consider the amendments to be necessary. The code of practice to be issued under Clause 53 is, nevertheless, a very important feature of this part of the Bill. I hope that discussions with highway authorities and utilities about its content will meet the concerns behind the amendments and that that reply will satisfy my noble friend.

Lord Brougham and Vaux

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

Amendment, by leave, withdrawn.

[Amendments Nos. 72 to 79 not moved.]

Lord Brabazon of Tara moved Amendment No. 80: After Clause 53, insert the following new clause: