HL Deb 18 June 1991 vol 530 cc111-7

86 Clause 93, page 53, line 7, leave out 'Notice' and insert 'Notices'.

87 Clause 97, page 54, line 26, leave out subsections (5) and (6).

88 Page 54, line 45, at end insert: '( ) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.'.

89 After Clause 97, insert the following new clause:

Effect of Part III on other existing enactments or instruments

'.—(1) The Secretary of State may by order make such provision amending, repealing, or preserving the effect of, any enactment passed or made before the commencement of Part III (not being a special enactment to which section 97(l), (2) or (3) applies) as appears to him appropriate in consequence of the provisions of that Part.

(2) Subject to any order under this section and (in the case of a public general Act) to any express amendment made by this Act, any such enactment which proceeds by reference to any provision of the Public Utilities Street Works Act 1950, or any other provision repealed by this Act in consequence of Part 111, shall continue to have effect as if the provision referred to had not been repealed.

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

  1. (a) enactments providing for the keeping of records of apparatus, and
  2. (b) enactments providing for the giving of notice of proposed street works.

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

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

(6) Except as mentioned in section 75(6), the provisions of Schedule 5 have effect with respect to the making of an order under this section in relation to a special enactment.

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

90 Clause 100, page 55, line 44, leave out from 'includes' to end of line 45 and insert 'an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;'.

91 Page 56, leave out lines I and 2.

92 Page 56, leave out line 6.

93 Page 56, leave out lines 7 and 8 and insert: ' "special enactment" means an enactment which is not a public general enactment, and includes—

  1. (a) any Act for confirming a provisional order,
  2. (b) any provision of a public general Act in relation to the passing of which any of the Standing Orders of the House of Lords or the House of Commons relating to Private Business applied, and
  3. (c) any enactment to the extent that it is incorporated or applied for the purposes of a special enactment;'.

94 Page 56, leave out lines 9 to 11 and insert: 'statutory right" means a right (whether expressed as a right, a power or otherwise) conferred by an enactment (whenever passed or made), other than a right exercisable by virtue of a street works licence;'.

95 Page 56, line 18, leave out 'highway' and insert 'street'.

96 Page 56, line 26, at end insert: '(3A) For the purposes of this Part apparatus shall be regarded as affected by works if the effect of the works is to prevent or restrict access to the apparatus (for example, by laying other apparatus above or adjacent to it).'.

97 Clause 101, page 57, line 3, at end insert:

'affected by (in relation to apparatus and works) section 100(3A)'.

98 Page 57, line 4, column 2, leave out 'section' and insert 'sections 85(2A) and'.

99 Page 57, leave out line 28.

100 Page 57, line 31, column 2, at end insert '(and see sections 66(4A) and 86(1))'.

101 Page 57, line 34, column 2, leave out '100(1)' and insert '85(1) (a)'.

102 Page 57, line 50, column 2, leave out 'section 44(4)' and insert 'sections 44(4) and (5) and 85(2B)'.

103 Clause 102, page 58, line 23, leave out first 'in' and insert 'by'.

104 Page 58, line 23, leave out 'vested' and insert 'exercisable'.

105 Page 58, line 24, leave out 'vested in him' and insert 'exercisable by him'.

106 Clause 104, page 59, line 23, at end insert:

'(1A) A person to whom permission has been granted under this section to execute works may do so without obtaining any consent which would otherwise be required to be given—

  1. (a) by any other relevant authority in its capacity as such, or
  2. (b) by any person in his capacity as the owner of apparatus affected by the works;
but without prejudice to the provisions of this Part as to the making of requirements by any such authority or person or as to the settlement of a plan and section and the execution of the works in accordance with them.

(1B) The granting of permission under this section to a person does not dispense that person from obtaining any other consent, licence or permission which may be required; and it does not authorise the installation of apparatus for the use of which the licence of the Secretary of State is required unless and until that licence has been granted.'.

107 Page 59, line 35, leave out subsection (4) and insert:

'(4) Before granting permission under this section the road works authority shall give not less than 10 working days' notice to each of the following—

  1. (a) where the works are likely to affect a sewer vested in a local authority, to that authority,
  2. (b) where the works are to be executed in a part of a road which is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,
  3. (c) where in any other case the part of the road in which the works are to be executed is carried or crossed by a bridge, to the bridge authority,
  4. (d) to any person who has given notice under section 108 (advance notice of certain works) of his intention to execute road works which are likely to be affected by the works to which the permission relates, and
  5. (e) to any person having apparatus in the road which is likely to be affected by the works;

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

108 Clause 106, page 60, line 32, after 'imminent' insert '(or which the person responsible for the works believes on reasonable grounds to be existing or imminent)'.

109 Clause 108, page 61, line 36, after 'other', insert 'procedural'.

110 Clause 110, page 62, line 43, at end insert: '( ) The Secretary of State may issue or approve for the purpose of this section a code of practice giving practical guidance as to the exercise by road works authorities of the power conferred by this section; and in exercising that power a road works authority shall have regard to the code of practice.'.

111 Clause 112, page 63, line 25, leave out 'which consists of or includes a carriageway'.

112 Page 63, leave out lines 28 to 36 and insert: 'For this purpose substantial works means works for road purposes, or such works together with other works, of such description as may be prescribed.'.

113 Page 64, line 3, leave out from 'authority' to 'person' in line 4 and insert:

  1. '(d) any person who has given notice under section 108 (advance notice of certain works) of his intention to execute road works in the part of the road to which the restriction relates, and
  2. (e) any other'.

114 Page 64, leave out lines 14 and 15.

115 Page 64, line 20, leave out '(which shall not be unreasonably withheld)'.

116 Page 64, line 27, at end insert: '( ) The consent of the road works authority under subsection (5) (b) shall not be unreasonably withheld; and any question whether the withholding of consent is unreasonable shall be settled by arbitration.'.

117 Clause 113, page 64, line 44, leave out 'may' and insert 'shall'.

118 Clause 114, page 65, line 28, leave out 'may' and insert 'shall'.

119 Clause 115, page 65, line 40, leave out subsection (1) and insert:

'( ) The consent of the road works authority is required for the placing of apparatus by an undertaker in a protected road, except as mentioned below.

The following are "protected roads" for this purpose—

  1. (a) any road or proposed road which is a special road in accordance with section 7 of the Roads (Scotland) Act 1984, and
  2. (b) any road designated by the road works authority as protected.

( ) Consent is not required for the placing of apparatus—

  1. (a) by way of renewal of existing apparatus, or
  2. (b) in pursuance of a permission granted under section 105 of this Act (permission to execute road works) or section 61 of the Roads (Scotland) Act 1984 (permission to place and maintain apparatus under a road), except where the permission was granted before the road became a protected road.'.

120 Page 66, line 10, leave out first 'the' and insert 'any'.

121 Clause 120, page 69, line 19, after 'it', insert or any longer period specified in the notice,'.

122 Clause 123, page 70, leave out lines 6 to 15 and insert 'take all reasonably practicable steps—

  1. (a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and
  2. (b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.'.

123 Clause 124, page 70, line 42, at end insert: '(4A) The permanent reinstatement of the road shall include, in particular, the reinstatement of features designed to assist people with a disability.'.

124 After Clause 127, insert the following new clause:

Charge for occupation of the road where works unreasonably prolonged

'.—(1) The Secretary of State may make provision by regulations requiring an undertaker executing road works in a public road to pay a charge to the roads authority where—

  1. (a) the duration of the works exceeds such period as may be prescribed, and
  2. (b) the works are not completed within a reasonable period.

(2) For this purpose "a reasonable period" means such period as is agreed by the authority and the undertaker to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable, for completion of the works in question.

In default of agreement, the authority's view as to what is a reasonable period shall be acted upon pending the decision of the arbiter.

(3) The regulations may provide that if an undertaker has reason to believe that the duration of works will exceed the prescribed period he may submit to the authority an estimate of their likely duration—

  1. (a) in the case of works in connection with the initial placing of apparatus in the road in pursuance of a permission granted under section 104 (permission to execute road works), together with his application for permission,
  2. (b) in the case of other works (not being emergency works), together with his notice under section 109 (notice of starting date), or
  3. (c) in the case of emergency works, as soon as reasonably practicable after the works are begun,
and that the period stated in an estimate so submitted shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.

(4) The regulations may also provide that if it appears to the undertaker that by reason of matters not previously foreseen or reasonably foreseeable the duration of the works—

  1. (a) is likely to exceed the prescribed period,
  2. (b) is likely to exceed the period stated in his previous estimate, or
  3. (c) is likely to exceed the period previously agreed or determined to be a reasonable period,
he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.

(5) The amount of the charge shall be determined in such manner as may be prescribed by reference to the time taken to complete the works and the extent to which the surface of the road is affected by the works.

Different rates of charge may be prescribed according to the place and time at which the works are executed and such other factors as appear to the Secretary of State to be relevant.

(6) The regulations may make provision as to the time and manner of making payment of any charge.

(7) The regulations shall provide that a roads authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.

(8) The first regulations for the purposes of this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament; subsequent regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

125 Clause 128, page 73 leave out Clause 128.

126 Clause 130, page 74, line 29, leave out '39' and insert '39(4)'.

127 Page 74, leave out lines 34 to 39 and insert 'the cost to the authority or concessionaire—

  1. (a) of complying with any requirement to notify the public of any matter in connection with the making, issuing or operation of the order or notice, and
  2. (b) of providing traffic signs in connection with the prohibition or restriction of traffic by the order or notice.'.

128 Page 75, line 33, after 'shall' insert ', except in such cases as may be prescribed,'.

129 Page 76, line 14, leave out subsection (6) and insert:

'(6) An order under section (Effect of Part IV on other existing enactments or instruments) (power to make consequential amendments, repeals, &c.) relating to an enactment or instrument containing provision for the keeping of records of apparatus which appears to the Secretary of State to be superseded by or otherwise inconsistent with the provisions of this section—

  1. (a) shall not be subject to the procedure provided for in Schedule 7, and
    2. 115
  2. (b) may make such transitional and other provision as appears to the Secretary of State appropriate for applying in relation to records compiled under that enactment or instrument the provisions of subsections (2) to (5) above and section 134 below.'.

130 Clause 134, page 76, line 41, at end insert: '( ) Subsections (1) and (2) have effect subject to such exceptions as may be prescribed.'.

131 Clause 135, page 77, line 3, leave out 'safety, the' and insert 'the safety and'.

132 Page 77, line 6, leave out 'in it' and insert 'of the authority in the road'.

133 Page 77, line 15, leave out 'road, bridge or' and insert 'works for roads purposes, major bridge works or major'.

134 Page 77, line 17, leave out subsections (3) and (4) and insert:

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

  1. (a) the road works authority may in such cases as may be prescribed, and
  2. (b) any other relevant authority may in any case, execute such works as are needed to enable them to inspect the apparatus in question, including any necessary breaking up or opening of the road.

(4) If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section—

  1. (a) the road works authority may in such cases as may be prescribed, and
  2. (b) any other relevant authority may in any case, execute any emergency works needed in consequence of the failure.'.

135 Page 77, line 31, at end insert: '( ) Nothing in subsection (3) or (4) shall be construed as excluding any other means of securing compliance with the duties imposed by subsection (1).'.

136 Clause 136, page 77, line 33, leave out from beginning to 'as' in line 35 and insert:

  1. '(a) the road works authority or any other relevant authority in respect of any damage or loss suffered by the authority in their capacity as such and
  2. (b) any other person having apparatus in the road in respect of any expense reasonably incurred in making good damage to that apparatus,'.

137 Page 78, line 9, leave out 'authority' and insert 'person'.

138 Page 78, line 12, leave out 'authority' and insert 'person'.

139 Clause 137, page 78, leave out lines 23 to 32 and insert 'take all reasonably practicable steps—

  1. (a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and
  2. (b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.'.

140 Clause 139, page 79, line 31, leave out from 'undertaker' to 'make' in line 45 and insert 'in such manner as may be prescribed.

(2) The regulations may make provision as to the costs allowable for this purpose.

Provision may, in particular, be made for disallowing costs of the undertaker—

  1. (a) where the apparatus in question was placed in the road after the authority had given the undertaker the prescribed notice of their intention to execute the works, or
  2. (b) in respect of measures taken to remedy matters for which the authority were not to blame,

and for allowing only such costs of either party as are not recoverable from a third party.

(3) Where the authority have a right to recover from a third party their costs in taking measures in relation to undertaker's apparatus but in accordance with section 139 it is determined that the measures should be taken by the undertaker, the right of the authority includes a right to recover the undertaker's costs in taking those measures and they shall account to the undertaker for any sum received.

(4) The regulations shall provide for the allowable costs to be borne by the authority and the undertaker in such proportions as may be prescribed.

Different proportions may be prescribed for different cases or classes of case.

(5) The regulations may require the undertaker to give credit for any financial benefit to him from the betterment or deferment of renewal of the apparatus resulting from the measures taken.

(6) The regulations may'.

141 Clause 140, page 80, line 25, at end insert: '(dd) works carried out in exercise of the powers conferred by section 63 of the Roads (Scotland) Act 1984 (new access over verges and footways),'.

142 Clause 142, page 81, line 10, after second 'to', insert 'place apparatus in and'.

143 Page 81, line 13, at end insert 'placed or'.

144 Page 81, leave out lines 19 to 30 and insert 'take all reasonably practicable steps—

  1. (a) to give the bridge authority reasonable facilities for monitoring the execution of the works, and
  2. (b) to comply with any requirement made by them which is reasonably necessary for the protection of the bridge or for securing access to it.'.

145 Clause 143, page 81, line 39, at end insert:

'(1A) References in this Part to apparatus include a sewer, drain or tunnel.

(1B) References to the undertaker in relation to such apparatus, or in relation to road works in connection with such apparatus, shall be construed—

  1. (a) in the case of a sewer vested in a local authority, as references to that authority, and
  2. (b) in any other case, as references to the authority, body or person having the management or control of the sewer, drain or tunnel.

(1C) Section 123 (provisions as to works likely to affect other apparatus in the road) does not apply by virtue of subsection (IA) above in relation to works likely to affect a sewer vested in a local authority if, or to the extent that, Schedule 6 (works in roads with special engineering difficulties) applies.'.

146 Page 81, line 40, leave out subsections (2) to (5).

147 Clause 146, page 83, line 30, at end insert: '( ) In proceedings for such an offence it is a defence for the undertaker to show that all reasonable care was taken by him, and by his contractors and by persons in his employ or that of his contractors, to secure that no such failure occurred.'.

148 Clause 148, page 84, line 28, at end insert: '( ) This section shall cease to have effect upon such day as the Secretary of State may appoint by order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

149 Clause 151, page 85, line 15, leave out 'Notice' and insert 'Notices'.

150 Clause 155, page 86, line 41, leave out subsections (5) and (6).

151 Page 87, line 11, at end insert: '( ) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.'.

152 After Clause 155, insert the following new clause:

Effect of Part IV on other existing enactments or instruments

'.—(1) The Secretary of State may by order make such provision amending, repealing, or preserving the effect of, any enactment passed or made before the commencement of Part IV (not being a special enactment to which section 155(1), (2) or (3) applies) as appears to him appropriate in consequence of the provisions of that Part.

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

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

  1. (a) enactments providing for the keeping of records of apparatus, and
  2. (b) enactments providing for the giving of notice of proposed road works.

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

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

(6) Except as mentioned in section 133(6), the provisions of Schedule 7 have effect with respect to the making of an order under this section in relation to a special enactment.

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

153 Clause 158, page 88, line 9, leave out from 'includes' to end of line 10 and insert 'an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;'.

154 Page 88, leave out lines 14 and 15.

155 Page 88, leave out lines 19 and 20 and insert:

' "special enactment" means an enactment which is not a public general enactment, and includes—

  1. (a) any Act for confirming a provisional order,
  2. (b) any provision of a public general Act in relation to the passing of which any of the Standing Orders of the House of Lords or the House of Commons relating to Private Business applied, and
  3. (c) any enactment to the extent that it is incorporated or applied for the purposes of a special enactment;'.

156 Page 88, leave out lines 21 to 23 and insert: 'statutory right" means a right (whether expressed as a right, a power or otherwise) conferred by an enactment (whenever passed or made), other than a right exercisable by virtue of a permission granted under section 104;'.

157 Page 88, line 38, at end insert: '(3A) For the purposes of this Part apparatus shall be regarded as affected by works if the effect of the works is to prevent or restrict access to the apparatus (for example, by laying other apparatus above or adjacent to it).'.

158 Clause 159, page 89, line 3, at end insert:

'affected by (in relation to apparatus and works) section 158(3A)'.

159 Page 89, line 4, column 2, leave out 'section' and insert 'sections 143(1A) and'.

160 Page 89, leave out line 25.

161 Page 89, line 28, column 2, at end insert '(and see sections 124(4A) and 144(1))'.

162 Page 89, line 45, column 2, leave out 'section 102(4)' and insert 'sections 102(4) and (5) and 143(1B).

Lord Brabazon of Tara

My Lords, with the leave of the House I beg to move that the House do agree with the Commons in their Amendments. Nos. 86 to 162 en bloc. The amendments have already been spoken to.

Moved, That the House do agree with the Commons in their Amendments. Nos. 86 to 162—(Lord Brabazon of Tara).

On Question, Motion agreed to.