CHARGE FOR WHOLE DURATION OF WORKS (Hansard, 2 November 2000)

HL Deb 02 November 2000 vol 618 cc1131-226 1131

§ .—(1) In the New Roads and Street Works Act 1991, after section 74 insert—

§ "Charge determined by reference to duration of works.

§ 74A.—(1) The Secretary of State may make provision by regulations requiring an undertaker executing street works in a maintainable highway to pay to the highway authority a charge determined, in the prescribed manner, by reference to the duration of the works.

§ (2) The regulations shall not require charges to be paid to a local highway authority unless the Secretary of State has approved it for the purposes of the regulations by order made by statutory instrument.

§ (3) The regulations may prescribe exemptions from the requirement to pay charges.

§ (4) The regulations may prescribe different rates of charge according to—

(a) the extent to which the surface of the highway is affected by the works,
(b) the place and time at which the works are executed, and
(c) such other factors as appear to the Secretary of State to be relevant.

§ (5) The regulations may—

(a) prescribe more than one rate of charge in respect of the same description of works, and
(b) provide that charges are to be paid in respect of any works of that description at the rate which appears to the highway authority to be appropriate in relation to those works.

§ (6) The regulations may make provision for the determination of the duration of works for the purposes of the regulations.

§ (7) And they may, in particular, make provision for works to be treated as beginning or ending on the giving of, or as stated in, a notice given by the undertaker to the highway authority, in the prescribed manner, in accordance with a requirement imposed by the regulations.

§ (8) The regulations may make provision as to the time and manner of making payment of charges.

§ (9) The regulations shall provide that a highway authority may reduce the amount, or waive payment, of a charge—

(a) in any particular case,
(b) in such classes of case as they may decide or as may be prescribed, or
(c) in all cases or in all cases other than a particular case or such class of case as they may decide or as may be prescribed.

§ (10) The regulations may make provision as to—

(a) the application by local highway authorities of sums paid by way of charges, and
(b) the keeping of accounts, and the preparation and publication of statements of account, relating to sums paid by way of charges.

§ (11) The regulations may create in respect of any failure to give a notice required by the regulations a criminal offence triable summarily and punishable with a fine not exceeding level 3 on the standard scale.

§ (12) The regulations may require disputes of any prescribed description to be referred to an arbitrator appointed in accordance with the regulations.

§ (13) The first regulations under 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.

§ Regulations under sections 74 and 74A.

§ 74B. Nothing shall be taken to prevent the imposition of charges by both regulations under section 74 and regulations under section 74A in respect of the execution of the same works at the same time."

§ (2) The reference to the New Roads and Street Works Act 1991 in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 is to be treated as referring to that Act as amended by this section and section (Charges where works unreasonably prolonged).").

§ The noble Lord said: My Lords, in moving Amendment No. 295, I wish to speak to the other amendments in this group, also standing in my name.

§ In response to an amendment tabled by the noble Lord, Lord Peyton, in Committee, I announced that the Government would consider whether we could bring forward amendments on Report to provide powers for highway authorities to levy a charge on undertakers who carry out street works from the first day of works—the so-called "lane rental". I am glad to say that the amendments before us now fulfil that pledge.

§ In that regard, I must confess that I believed that the noble Lord, Lord Peyton, was pressing a matter beyond what I considered to be possible. However, such was his persistence and eloquence that I and colleagues looked at the matter again and again to ensure that it was fully referred. I am delighted to say that we finally concluded that we had been tardy and that the noble Lord, Lord Peyton, had been right.

§ I should make clear that the Government fully recognise that gas, telecommunications and other undertakers have statutory rights to carry out street works as part of providing the public with services which we regard as essential in a modern society. On the other hand, businesses, public transport users, pedestrians, private motorists and other road users are entitled to expect the minimum disruption from those necessary activities.

§ A number of measures are already in place or are in the process of being introduced to minimise the disruption caused by street works. However, the Government are well aware that there is no room for complacency. As noble Lords may recall, last year we consulted interested parties on a number of options for reducing disruption from street works. After considering the responses, we announced in April this year our intention to activate Section 74 of the New Roads and Street Works Act 1991. That will allow 1133 highway authorities to charge utility companies in respect of street works which are unreasonably prolonged.

§ We have now prepared draft regulations which set out the detailed arrangements for operating a scheme under Section 74. Those are currently out to consultation, and we hope to be in a position to lay them before Parliament by the end of the year. Copies of the draft regulations and the other consultation documents are in the Library. The regulations will be subject to affirmative resolution.

§ However, we fully recognise that it may be necessary to introduce further measures if the Section 74 arrangements do not result in a sufficient reduction in the present level of disruption.

§ So, we shall be reviewing the situation to see whether further measures may be required; for instance, a lane rental scheme allowing highway authorities to charge undertakers from the outset of works, even where these do not overrun an agreed deadline.

§ New Clause 295 provides for regulations to implement such a lane rental scheme. But it does not attempt to set out every last detail on the face of the Bill. Should we decide that we wish to activate this power, we shall want to consult extensively with interested parties, including highway authorities and utilities, on the detailed arrangements.

§ The 1991 Act already requires undertakers to notify highway authorities about the execution of works. We envisage additionally that any lane rental scheme would be underpinned by a requirement for undertakers to produce formal notices informing authorities of each of the key dates for individual works. So, for example, they would have to produce a notice announcing the actual start date of works and another stating the date on which the reinstatement of the road surface was completed. These notices would allow the authority to calculate the rental charge for which the undertaker was liable.

§ We should make it clear that should we decide to introduce regulations activating the power to operate lane rental schemes, authorities will not be forced to put such a scheme in place in their area. After all, it is quite clear that the disruption caused by streetworks is a greater problem in some parts of the country than in others. Given this, subsection (2) makes it clear that authorities wishing to proceed with a scheme will need to submit details of it to the Secretary of State or the Welsh Assembly, as appropriate, for approval.

§ In considering whether to approve a scheme, we shall want to satisfy ourselves that authorities are acting responsibly and that the detail of the scheme is commensurate with the disruption caused by streetworks in their area. It would not be acceptable, for example, if it became clear that an authority's motive in introducing a scheme was purely to raise extra revenue for itself.

§ While it is our intention to address the detailed arrangements for lane rental in regulations, the amendment does set out some of the issues that we shall want to cover there. These might include, for instance, the level at which charges should be set, and 1134 how these would vary according to the location, extent and timing of works. We should also want to set out what exemptions there might be from a requirement to pay lane rental charges, for instance for emergency works which have to be carried out at very short notice.

§ Whatever the detailed arrangements for operating the lane rental scheme might be, should the Government decide to proceed to laying regulations these will be subject to affirmative resolution. Noble Lords will, therefore, have the opportunity to scrutinise the proposals in detail at that stage.

§ New Clause 296 modifies the existing power in Section 74 of the 1991 Act for the Secretary of State to issue regulations which require undertakers to pay a charge to the relevant highway authority where their works exceed the deadline which had previously been agreed with the authority.

§ As I explained earlier, draft regulations under Section 74 are currently out for consultation. However, when preparing these, it became apparent that in any scheme for providing for highway authorities to charge undertakers, the authorities would need clear evidence of when works began and ended.

§ Following discussion between the relevant parties, it was agreed, as with lane rental, that the best way to provide this evidence would be for the regulations to provide for formal notices to be given by undertakers to highway authorities stating the start and close of works. However, the 1991 Act does not currently provide the power for requiring such notices. Also, although Section 74 provides that an undertaker may inform the highway authority that his original estimate of the duration of works is likely to be exceeded, there is no power to require that this be done by way of a notice from the undertaker to the authority, or to prescribe the contents of such a notice. The new clause thus provides for such notices to be given, and for their contents to be prescribed in regulations.

§ Section 74 of the 1991 Act already provides for a number of matters relating to the levying of charges to be dealt with in regulations; for instance, the time and manner of payment of charges and the ability of the authority to waive or reduce payments in certain circumstances.

§ However, in order to bring the arrangements into line with those for lane rental, the amendment also provides for a number of further areas to be dealt with in regulations. So, for instance, the regulations may allow for certain works, such as emergency works, to be exempted from the requirement to pay charges.

§ Amendment No. 337 is a simple tidying-up exercise to make it clear that as a result of the changes we are making to the New Roads and Street Works Act 1991, an undertaker will now be obliged, rather than given the option, to submit a notice to the relevant highway authority containing a revised estimate of duration where he considers that works are likely to exceed the original deadline agreed with the authority. This will make it far easier for the authority to track the progress of specific works.

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§ Finally, Amendment No. 338 makes it clear that the revised power to make regulations under Sections 74 and 74A of the New Roads and Street Works Act 1991 applies only to England and Wales.

§ Roadworks is a devolved matter for Scotland, and it is for the Scottish Parliament to make separate provision in primary legislation, should it choose to do so. I beg to move.

§ Lord Peyton of Yeovil
My Lords, I should like to say how touched I was by the generous remarks with which the noble Lord opened his speech. Not all Ministers either listen very carefully or are subsequently prepared to admit that they were wrong and change course and then very generously to give the credit to a political opponent. The noble Lord did so, and I am grateful to him.
In thanking the Minister, I hope that for as long as the noble Lord remains in his post, the powers that the Government are taking will not end up as another battery of guns which are for ever silent.
What justification is there for allowing approximately 138 companies to dig holes in the road more or less at their convenience and with not the slightest regard—indeed, they have a contemptuous disregard—for the interests of others who have every right to use the road? The present arrangements allow that legion of people to stake out their territories with cones, rather like wild animals. Of course, they do use cones, rather than the methods of the jungle. It seems to me that they are over-privileged.
The process allows those operators not merely to stake out their territories, but to come back at their convenience and dig a hole, leaving it untenanted and unoccupied, and to return when pressure of other things allows. They do what they have to do in the hole, fill it up and before they leave, carry out very inadequate repairs. The only excuse for that casual conduct is that as soon as they finish, someone else will dig up the same road for a quite different purpose.
This good cause has been neglected by the media in general, but Mr Freeman of the Evening Standard has pursued zealously a well-justified campaign. He called attention to the disgusting state of Regent Street, occasioned simply by the amount of space cordoned off for these operations and the litter and filth which accumulated as a result.
I quote from an article of 10th April in the Evening Standard which stated: The hole, dug on behalf of contractors working for gas pipeline maintenance company, Transco, sat in the middle of one of London's busiest bus lanes which serves seven different bus routes. It was one of at least five sets of roadworks in the West End where, as the Evening Standard disclosed last week, traffic is being reduced to a virtual standstill by contractors working for numerous utilities". I do not want to single out one company in particular, but Transco seems to be a regular, very consistent and rather ungracious offender, although it must be said in its defence that when someone from the Evening Standard rang it up and said, "You've got a 1136 hole which you are not attending to", someone did come running along the next day to fill it in. But that should not have been necessary.
I rather wonder about this. Transco is, or was, a subsidiary of a creature called British Gas, which has now ceased to exist, I believe, in all but name. Transco is owned by a firm called Lattice Group, which resides in Jermyn Street. I wonder whether the chairman, Mr John Parker—the time has come to mention a few names—is really aware of the indignation, inconvenience and annoyance for which he or his company is responsible. I hope that he will learn some lessons before too long.
I have continued to press this matter for a good year now because I have been rather shocked by the way in which offenders seem to have little regret and no remorse or even concern about the inconvenience that they cause to others.
One must be concerned also about subcontractors who seem only too often to be a law unto themselves and their principals do not consider themselves in any way responsible for the way in which they conduct their affairs. I very much hope that the Minister's forceful character will make it clear to principals that they are responsible and answerable for what their subcontractors do. There is no possible excuse for letting them get away with the cavalier behaviour for which they are so often responsible.
I turn now briefly to highway authorities and in that bracket, for the moment, I include the Highways Agency. Those are the authorities upon which we are dependent generally for keeping our highways for the purpose for which they were originally intended, but which is often forgotten; namely, movement. The fact that highways were originally constructed for movement seems to be largely forgotten by, of all people, highways authorities which prolong their activities for operations which are quite often minor and trivial, but they go on for weeks, attended to by one or two men. There is no urgency about it. There is absolutely no sense of concern about the inconvenience caused to the public.
I hope that the noble Lord will undertake to address some very sharp words and advice to those upon whom he is going to rely to make his policies effective, those policies which we shall certainly approve today.
I cannot resist the temptation to mention Westminster Bridge. What has happened in regard to Westminster Bridge must have aroused the envy of all those who wish to disrupt and upset ordinary human commerce. I asked the Minister about this matter, but he was quite unable to answer for reasons with which I sympathise. But I should not mind having a bet with him that over the past five years or so there has been practically no days at all when all the lanes on Westminster Bridge, and the access roads to the bridge, were available to ordinary traffic. That is an absolute scandal.
When the very long bridge in San Francisco was upset by an earthquake, the Americans got it open again in months. It took three years or more to strengthen Westminster Bridge. They could have 1137 pulled the whole damn thing down and rebuilt it in less than that time if there were even a remote measure of competence.
I have the gravest doubts about the competence, will and resolution of highway authorities. I hope that the Minister will do his best to set them on the course for improvement. Heaven knows, they can hardly get worse.
The Government can be absolutely sure of support on this. I hope that they will not under-rate—I am sure they do not—the immense forces of inertia which they are against on the part of utilities which, so far, have shown nothing but determination to continue to enjoy unjustified privileges.
I pay tribute to, among others, the RAC which has been extremely persistent in pressing this case upon the Government. I should like to quote from a letter which it wrote to me the other day which stated: The number of utility street works are most noticeable in central London around the Palace of Westminster at present time. Parliament Square has been chaos for most of the summer, along with St James' and Piccadilly. Extensive working is being undertaken around Northumberland Avenue and Old Palace Yard. Due to work on Westminster Bridge traffic is being forced into one lane of traffic at either side. Similarly, considerable work is being undertaken along Birdcage Walk". We are left with hardly a patch of this part of London untouched. If there is, that must be because its existence has just been ignored.
I do not want to trespass further upon your Lordships' time. But I have three particular worries. First, in the amendment which the Minister moved, he has been loyal to the draftsman and left in the word "may" as opposed to "shall". I should be very much happier to see the amendment read that the Secretary of State "shall" make provision instead of the rather humble and lame-sounding "may". But I hope that the spirit of the noble Lord will be sufficient to give that word "may" rather more of an imperative smack.
My second point is to express some regret that the lane rental power will not be used unless and until the other measures seem insufficient. In present circumstances, and having regard to the record of the people who have caused this trouble regularly, I believe that the noble Lord will be well advised to bring out all his forces now, aim them at those who really deserve to be shot at, and conduct an operation with all the means at his disposal in order to make sure of the result.
My third concern is that the paralysis which comes of having too many people involved and no one responsible may come oozing out and swamp the Government's present good intentions. The result would then be to buttress and give fresh life to the incompetence, ill manners and abuse of privilege which has been such a nuisance on the roads and streets not just of London but of this country as a whole for far too long.

§ Lord Clinton-Davis
My Lords, I compliment my noble friend for having listened to the representations that have been made. In no way do I cast any aspersions upon the noble Lord who has been a friend 1138 of mine for many years. However, my noble friend has learned a superb lesson in regard to listening to the concerns of this House. We have had the experience not only of the theories, but of the day-to-day practical concerns as regards this matter. I thank my noble friend for having listened carefully to the representations that have been made by the noble Lord, Lord Peyton.
I apologise that, as a result of my stroke, sometimes I become rather muddled. However, I am not muddled about one thing: the experience of every person who has come before my noble friend has been taken into account and I thank him from the bottom of my heart.

§ Lord Monson
My Lords, as someone who has previously spoken out in favour of just such a move, I congratulate the noble Lord, Lord Peyton of Yeovil, for his insistence, and like the noble Lord, Lord Clinton-Davis, I congratulate the Government on being open-minded enough to listen to the arguments and to accept them in such a constructive manner. These amendments are extremely worth while and will be widely welcomed by the public at large.

§ Baroness Hamwee
My Lords, I have a few questions to put to the Minister, but first I thank him and I congratulate most warmly the noble Lord, Lord Peyton of Yeovil, who, through his own campaign, working with the Evening Standard and with quite a lot of coverage from "Today in Parliament", has kept this issue well to the fore.
On the first amendment, can the Minister confirm that the provisions will extend to footpaths as well as to carriageways? He mentioned pedestrians, but can we be assured that the dislodging of pedestrians from footpaths, as well as the problems of works to a carriageway spilling over on to a footpath, will be taken into account?
On the lane rental provisions, noble Lords will be aware that local authorities charge undertakers when the highway authority has to refill a hole because it has been filled so incompetently in the first place, and that that is something that happens quite often. I hope that the rental charged to the undertaker will extend to that circumstance; in other words, that the highway authority will not have to bear the cost. I appreciate that that point will be covered by regulations and will not be on the face of the Bill.
The Minister made a point about the start and finish of works. I hope that the factual position will override a date notified by an undertaker. Frankly, I would be fairly suspicious about the accuracy of such dates. I am sure that I am not the only Member of this House who is irritated by how much litter, such as abandoned signs and pieces of fencing from around works, is left behind at the close of works, particularly in London. Often those who undertake work do not clear up once the job is finished.
Having made those three points, I thank the Minister for ensuring that these provisions are included in the Bill.

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§ 4.45 p.m.

Lord Berkeley
My Lords, I also congratulate the noble Lord, Lord Peyton of Yeovil. He has been concerned with this matter for a long time and deserves every congratulation on achieving government acceptance, in principle, of his proposals.
My point follows on a point raised by the noble Baroness, Lady Hamwee, on lane rentals for footpaths. The noble Lord, Lord Peyton, mentioned Birdcage Walk. I do not know whether he has tried to walk along that road, but it is just about impossible to drive down it, and walking down it is even worse because the contractors have taken over both footpaths with an unfriendly wire fence.
Regularly one finds that footpaths are blocked by spoil from road excavations. One classic case in Oxford, where I live, involved a bus lane where one is encouraged to cycle as it is also a cycle route. For some reason it was dug up and a large sign was erected saying, "Cyclists dismount". Why should cyclists dismount? Why should not the cars slow down? Why should there not be space for pedestrians? If cars and vehicles can use the road, cyclists and pedestrians should be able to use it as well.

§ Lord Brabazon of Tara
My Lords, I join noble Lords who have congratulated my noble friend Lord Peyton on his supreme resistance in raising this issue for about a year, through Starred Questions, Unstarred Questions, a Private Member's Bill and amendments to this Bill. The result is that we have government amendments that meet his points. I also thank the Minister warmly for bringing forward these amendments.
I may not have understood what the Minister said in introducing the amendments. He said that the regulations under existing Section 74 of the New Roads and Street Works Act are now in draft and out for consultation and it is hoped that they will be brought into force by the end of the year. The second of the two amendments seeks to amend Section 74 and mentions regulations. Will those regulations come in simultaneously with those regulations that are now out in draft form, or will there be a further delay while they are consulted upon? I do not want to sound carpish, but originally the noble Lord, Lord Whitty, said in June that he had hoped that the orders would be laid before the House in the autumn, before the end of this parliamentary session. We have already seen some slippage in that, but that may be because the second amendment requires additional regulations. Can the Minister clarify that particular point?

§ Lord Macdonald of Tradeston
My Lords, my understanding of the regulations, referred to by the noble Lord, Lord Brabazon, is that the reports on the consultations will occur simultaneously, so the answer is yes. My noble friend Lord Berkeley spoke of the position in Birdcage Walk. I remind the House that that is a royal park and what takes place there is up to the royal park.
1140 The noble Baroness, Lady Hamwee, mentioned footpaths, or footways as they are technically described. They will come under the same considerations as roads. As for pedestrians, there will be a code of practice that will set out how utilities should carry out their works, which should make provision for pedestrians. Clearly, the rental costs will be a matter for regulation. I am sure that that will encompass the point that she makes about the factual position as to the notification of dates.
I am grateful to all those who congratulated us on this matter. As I said earlier, those congratulations belong in large measure to the noble Lord, Lord Peyton. I accept his stricture on the word "shall" as opposed to the word "may". I confess to being a victim of the tyranny of the pedants who draft these provisions; but I am the creature in these matters in this instance.
The noble Lord, Lord Peyton, posed many other questions of substance. Like him, I hope that these powers will not be an unused battery of guns if there is evidence that they are required. My intuition, which I am sure the noble Lord shares, is that when new Section 74A is enacted, it will be seen as something that can be usefully employed throughout England and Wales. I anticipate that Section 74 will be given something of a run for its money. But in the not-too-distant future, new Section 74A will be called into play.
I take also the noble Lord's point about the campaign conducted by the Evening Standard. In my previous role, one of the media companies under my chairmanship was the Glasgow Evening Times, which won the award for being the best evening newspaper in the United Kingdom, but ceded it quite rapidly to the Evening Standard. I should say that under the editorship of Max Hastings, Londoners are well served by that newspaper in its constant vigilance. It is well known for its awards so I hope that, if it introduces a new award, perhaps for good works as well as roadworks, at some point it will set a golden cone upon the head of the noble Lord, Lord Peyton.
I am delighted that what we have been able to do in this regard has been so well received. I commend the amendment to your Lordships.
On Question, amendment agreed to.

§ The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty) moved Amendment No. 296: Before Clause 253, insert the following new clause—

cc1140-9