Clause 37: Crown application

73.     This clause provides for permit schemes to apply to works carried out by, or on behalf of, central government. It also provides that works carried out by or on behalf of the Queen in her private capacity will not require a permit.

Clause 37: Interpretation of Part 3

74.     This clause defines certain expressions and words used elsewhere in Part 3. Of particular note is the definition of "works" for which it might potentially be necessary to obtain a permit in areas where a scheme is in operation. This includes utility street works and works governed by the Highways Act 1980. The latter could include highway authority road works, the placing of skips and the deposit of building materials in the highway.

Part 4 : Street Works

75.     Part 3 of the New Roads and Street Works Act 1991 contains the current scheme for managing street works in England and Wales. All references in this part to NRSWA are to be taken as references to Part 3 of that Act. The regulation making powers in NRSWA are exercised by the Secretary of State in England, and by the National Assembly for Wales. References in this Part to the power to make regulations should be read accordingly.

Clause 39: Increase in penalties for summary offences under 1991 Act

76.     Clause 39 increases the maximum fines for a number of summary offences under NRSWA from level 3 (£1000) to levels 4 (£2500) or 5 (£5000).

77.     Subsection (3)increases the maximum fine to level 4 (£2,500) in the case of an offence consisting of a failure to comply with section 70(3) (requirement to give notice of completion of permanent or interim reinstatement) or 70(4A) (requirement to give notice of completion of reinstatement), and to level 5 (£5,000) for other offences under that section.).

78.     Subsection (4) increases the maximum fines for offences under regulations made under section 74 (overrun charges) and section 74A (lane rental) to level 4. These offences relate to failure to give notices.

79.     Subsection (5) increases the penalties for offences under section 88 of NRSWA (which relates to cases where an undertaker carries out street works affecting the structure of a bridge). The maximum fine for the offence of failing to give the bridge authority reasonable facilities for monitoring the execution of the works is increased to level 4. The maximum fine for the offence of failing to consult the bridge authority before giving notice or failure to comply with a requirement necessary for the protection of the bridge is increased to level 5.

Clause 40: Fixed penalty offences

80.     Clause 40 amends NRSWA so as to create a fixed penalty notice system for offences. The table identifying the offences to which fixed penalty notices may apply is in Schedule 2 to the Bill (which inserts a new Schedule 4A into NRSWA). The details of how the system will operate are contained in Schedule 4 to the Bill (which inserts a new Schedule 4B into NRSWA).

Clause 41: Duty of street authority to co-ordinate works

81.     Under Section 59 of NRSWA, a street authority has a duty to co-ordinate statutory undertakers' street works and their own road works. The clause provides for that duty to be extended to encompass the co-ordination of certain other prescribed temporary activities on the highway, for example, the placing of skips and scaffolding.

Clause 42: Directions relating to timing of street works

82.     This clause amends section 56 of NRSWA. Section 56 gives authorities certain powers to direct utilities as to the time at which their works can be carried out, where the authority believe that the works would otherwise cause serious disruption to traffic. At present NRSWA enables the authority to direct the utility to carry out work at certain times of the day, for example between 10am and 3pm. If they work outside of the directed times they commit an offence.

83.     The amendment made by subsection (2) enables an authority to direct a utility to carry out works at certain times and on certain days, or both at certain times and days, for example between 10am and 3pm on the 1^st and 2nd of November.

84.     At present, the direction may only deal with proposed works. Subsection (3) adds a new subsection (1A) to section 56 of NRSWA, which enables a street authority to make a direction where works have already commenced.

Clause 43: Directions as to placing of apparatus

85.     This clause inserts a new section 56A into NRSWA. The section enables the street authority to direct an undertaker not to use a proposed street to place their apparatus, if it appears to the street authority that this is likely to cause disruption to traffic, and there is another street in which the apparatus could be placed. In order to make such a direction there has to be at least one other reasonable alternative route, which if used would result in less disruption. Further, the installation of the apparatus in the alternative street must be a reasonable way of achieving the purpose for which the apparatus is to be placed, and it must be reasonable to require the undertaker not to place the apparatus in the street proposed by the undertaker. In making its direction, the authority cannot direct an undertaker to use a particular alternative street (and may merely prevent the undertaker from installing apparatus in certain streets). The clause creates a level 5 offence for contravening such a direction. Subsection (4) provides for regulations prescribing the procedure for giving directions and subsection (5) provides for regulations dealing with appeals. Subsection (8) provides that the Secretary of State may issue or approve a code of practice giving practical guidance as to the exercise by street authorities of the power conferred by this section, and provides that in exercising that power a street authority must have regard to the code of practice.

Clause 44: The street works register

86.     Section 53 of the NRSWA places a duty on street authorities (e.g. county councils) to keep a register showing with respect to each street for which they are responsible such information as may be prescribed with respect to the street works, and such other descriptions of works as may be prescribed, executed or proposed to be executed in the street (an example of other works are local authority road maintenance works).

87.     Subsection (2) amends section 53(1) so as to confer a power to make regulations to require the street authority to keep additional information on the register, including information about any of the following:

• Builders' skips deposited or proposed to be deposited in the street;

• scaffolding or other structures, which are erected, or proposed to be erected in the street;

• apparatus placed or proposed to be placed in the street.

88.     Section 53(4) and (5) of NRSWA provide that the Secretary of State can make arrangements for the duty of an individual street authority to keep a register for its area to be satisfied by the appointment of someone to keep one or more "central" registers. Subsection (3) inserts a new subsection (4A) into section 53 providing that a "central register" means a register covering two or more authority areas.

89.     Subsection (4) enables the Secretary of State to require a street authority to share information on its register with a person appointed to keep a central register.

Clause 45: records of location of apparatus

90.     Section 79 of NRSWA requires, except in such cases as may be prescribed, that an undertaker shall record the location of every item of apparatus belonging to him as soon as reasonably practicable after placing it in the street or altering its position, locating it in the street in the course of executing any works, or being informed of its location under section 80 of NRSWA (duty to inform undertakers of location of unidentified apparatus).

91.     Subsection(2) inserts a new subsection (1A) into section 79 of NRSWA. It provides that an undertaker can (except in circumstances prescribed in regulations) include in its section 79 records other records not required to be included in the records kept by undertakers under section 79.

92.     Subsection (3) inserts a new subsection (2A) into section 79 of NRSWA. It provides that regulations under section 79(2) as to the form and manner of records (for instance regulations providing that the records should be held in electronic form) may apply to records of apparatus made before the regulations take effect.

Clause 46: Duties relating to the location of unexpected apparatus

93.     Section 80 of NRSWA provides for the duties upon a person carrying out works in the street where he discovers apparatus belonging to another person which is either not marked, or is wrongly marked, on existing location records.

94.     Subsection(2) amends section 80(1) of NRSWA to clarify that the records in question are those kept by undertakers under section 79 of that Act.

95.     Subsection (3) inserts a new subsection (1A) into section 80 to provide that regulations may prescribe exceptions to the duty in section 80. Subsection (4) substitutes a subsections (2) and (2A) into section 80. Subsection (2) provides that a person executing works of any description in the street who finds apparatus which does not belong to him, and who is unable, after taking such steps as are reasonably practicable, to ascertain to whom the apparatus belongs, must comply with such requirements as may be prescribed in regulations for making and keeping a record of the location and nature of the apparatus and whether it is in use, and to inform the street authority or any other person of those matters. Subsection (2A) provides that regulations under subsection (2) may make provision as to the form and manner in which records are to be kept, and the manner in which or time at or by which information is to be given, and also for records which are to be kept by undertakers to be included in the records kept by them under section 79(1).

96.     Section 80(4) of NRSWA provides that it is an offence not to comply with the requirements set down in section 80(1) and 80(2). Subsection (5) provides that the offence applies in respect of any requirement imposed upon a person under subsection (2).

97.     Subsection (6) allows for the establishment of one or more registers of information to be held on apparatus which is unearthed in the course of works where it is not possible to identify who the apparatus belongs to.

Clause 47: Duty to inspect records

98.     This clause inserts section 53A (duty to inspect records) into NRSWA. That section enables the Secretary of State to create a new duty in regulations requiring an undertaker who wishes to carry out street works to inspect statutory records (for instance records of the apparatus already located in that street) before doing so. The street works to which the duty applies and the records which must be inspected are to be set out in regulations.

99.     The procedure for inspecting records, and how an undertaker could prove that he had carried out an inspection, may be set out in regulations.

100.     The inserted section also enables the regulations made under it to create a level 5 offence (with a maximum fine of £5,000) where an undertaker fails to comply with the requirements of the regulations.

Clause 48: Qualifications of supervisors and operatives

101.     Under Section 67 of NRSWA an undertaker executing street works involving breaking up the street, or any sewer, drain or tunnel under it, or tunnelling or boring into the street must secure that, except in such cases as may be prescribed, the execution of the works is supervised by a person having a prescribed qualification. They must also ensure that when such works (described above) are in progress there is always at least one person on site having a prescribed qualification as an operative. Subsections (2) and (3) insert new subsections (1A)(a) and (2A)(a) into section 67, to enable a street authority to require by notice that where such works are or have taken place an undertaker provides the names of the current or previous qualified persons, and evidence of the required qualification.

102.     Subsections (2) and (3) insert new subsections (1A)(b) and (2A)(b) into section 67 to enable regulations to prescribe the evidence that undertakers must supply in the cases of both supervisors and operatives.

103.     Subsection (2B) inserted by this clause provides that a notice under subsections (1A) or (2A) may be given at any time while the works are being executed or within such period after their completion as may be prescribed.

104.     Subsection (5) amends the existing powers of the Secretary of State to make regulations dealing with the training qualifications issued by approved training bodies. It provides that the regulations may prescribe the form of any document issued by an approved body to certify a qualification.

Clause 49: Works following substantial road works

105.     This clause amends the existing provision restricting street works following substantial road works carried out by the highway authority. Section 58 of NRSWA provides that where a street authority propose to carry out substantial road works in a highway, the street authority may by notice restrict the execution of street works during the twelve months following the completion of the road works.

106.     Subsection (2) amends section 58 so as to provide for the maximum length of a restriction on the execution of street works to be prescribed in regulations rather than in the primary legislation.

107.     Section 58(4) currently provides that a notice restricting the execution of street works ceases to be effective if the road works to which it relates are not substantially begun on or within one month from the date specified in the notice, or in cases where they are in progress on the specified date in the notice (in the part of the highway to which the restriction relates), within one month from the completion of those works. Subsection (4) of this clause amends section 58(4) to provide that regulations may prescribe the period within which a notice ceases to be effective.

108.     Section 58(7) currently provides that the question as to whether the street authority has unreasonably witheld consent to an undertaker to execute works shall be settled by arbitration. Subsection (6) amends section 58(7) to provide that disputes shall be decided in the prescribed manner. Subsection (7) inserts subsection (7A) into section 58, providing that regulations under section 58(7) may make provide for questions to be settled by arbitration or by a person designated by the Secretary of State.

109.     Subsection (8) refers to the notices that an undertaker must give an authority before commencing street works, under section 55 of the Act. It provides for different notice periods to be prescribed if the undertaker has been given a notice under section 58(1) relating to restrictions following substantial road works.

Clause 50: Restriction on works following substantial street works

110.     Clause 50 inserts a new section 58A into NRSWA, and refers to Schedule 4 of the Bill, which inserts a new Schedule 3A into NRSWA. These provisions confer a new power for a street authority to impose a restriction following substantial street works carried out by undertakers. Substantial street works may be prescribed in regulations. It is similar to the corresponding provision in section 58 of NRSWA (restriction on works following substantial road works).

111.     Paragraph 1 of Schedule 3A provides that section 58A may be exercised where an authority receive a notice under sections 54 or 55 of NRSWA from an undertaker notifying them of proposed substantial street works.

112.     Paragraph 2 enables a street authority to publish a notice informing undertakers that substantial street works will take place and that they intend to impose a restriction. Regulations may provide for how the notice is to be published and its form and content. This paragraph also lists the various persons who should be given a copy of the notice - those listed under section 58 and, any other person of a prescribed description. The published notice requires undertakers to notify the street authority (within a certain period to be prescribed in regulations) that they wish to carry out works. This period is referred to as the "notice period". Regulations may also prescribe the form of the notice required to be given by undertakers. The notices required to be given by undertakers under section 55 are not required if they have to give this other type of notice.

113.     Paragraph 3 sets out the power of the street authority to make directions to the undertakers once the notice period has expired:

• the undertaker proposing the substantial works;

• undertakers who have given a notice in response to the authorities' notice;

• any other undertakers who have previously given notice of their works.

114.     The street authority's directions can be given in respect of the date on which he may begin to execute the works proposed by him. The direction may also set a period within which the works are to be executed. Any such period must be a reasonable period. Where an undertaker has received a direction and begins works before the directed date he is guilty of a level 5 offence. Once the notice period specified has expired paragraph 3(5) makes it a level 5 offence for any other undertaker to carry out works before the undertakers directed by the authority. Paragraph 3(6) excludes emergency works and any other situations that may be prescribed from the scope of this offence.

115.     Paragraph 4 confers a power on the authority to make a direction restricting further works. The direction must be made by the authority after the expiry of the notice period and before the completion of the works carried out as a result of the directions under paragraph 3. The procedure for giving directions and their form and content may be prescribed by regulations. The paragraph also provides that regulations may prescribe the maximum period of the duration of the restriction.

116.     Paragraph 5 has the same effect as the provisions in section 58 which provide for certain categories of work to be carried out whilst the restriction is in place. It also provides for regulations to prescribe the process for settling disputes concerning the giving of consent for such works.

Clause 51: Duty to notify street authority of reinstatement

117.     Under section 70(3) of NRSWA the undertaker must inform an authority before the end of the next working day after the day on which the re-instatement is completed, that the reinstatement has been carried out. The reinstatement may be permanent or interim but if interim, it must be made permanent within six months. Clause 51 amends the time period for giving the notice required by section 70(3) to provide that the undertaker has up to seven working days from the completion of the reinstatement to notify the authority that the reinstatement has been carried out. The clause also enables regulations to require other prescribed information about the reinstatement to be provided. Subsection (3) also inserts a new subsection (4A) into section 70 of NRSWA provides that where an undertaker carries out an permanent reinstatement after the interim one, he must also give a further notice within seven working days from the date on which the permanent reinstatement was completed, giving such other information about the reinstatement as may be prescribed. The time periods for notifying both permanent and interim reinstatements may be varied by regulations.

Clause 52: Notices requiring remedial works relating to reinstatements

118.     At present, sections 72 and 90 of NRSWA provide that where an undertaker carries out works which involve breaking open streets, sewers, drains or tunnels, but fail to reinstate the street properly afterwards, the relevant authority (for instance the street authority) can require them to rectify the failure within a period of not less than 7 working days from the date of the notice. The clause amends sections 72 and 90 to replace the 7 day period, and to provide that the minimum period within which the street authority can require the undertaker to rectify the failure (from the date of the notice) may be prescribed in regulations, and that cases may be prescribed in which no minimum applies.

Clause 53: Power of street authority to require undertaker to re-surface street

119.     This clause inserts new sections 73A, 73B and 73C into NRSWA to enable a street authority, in certain circumstances, to require an undertaker to resurface a street.

120.     Section 73A provides for a "re-surfacing notice" to be given by the authority to the undertaker specifying the resurfacing work they require the undertaker to carry out. A re-surfacing notice could be given when an undertaker:

• has given notice under section 54 or 55 of NRSWA to carry out street works and the works will involve the breaking up of any part of the street,

• is executing street works which involve the breaking up of any part of the street, at the time the notice is given, or

• has previously carried out street works in that street which involved the breaking up of any part of the street (there is provision to prescribe how far back in time this could be applied but any period is permitted unless one is prescribed).

121.     Section 73A(4) enables a resurfacing notice to relieve the undertaker of some or all of his duties under section 70 with regard to reinstatement. Regulations may restrict the extent to which the duty is relieved and the circumstances in which notices may be varied or withdrawn.

122.     Section 73A (6) provides that a street authority may serve a resurfacing notice notwithstanding that the authority (in any capacity) are under a duty to undertake any of the works specified in the notice.

123.     Section 73B deals with the timing of resurfacing works. It enables the authority to specify in a "resurfacing notice" times, stages and dates for beginning, executing and completing works. Regulations may restrict the use of this power, in some or all cases, including any requirement to consult an undertaker before imposing a restriction.

124.     Section 73C provides that an undertaker's resurfacing work must comply with any prescribed standards for the materials and workmanship as well as any performance standards for a prescribed period after resurfacing.

Clause 54: Re-surfacing: regulations and guidance

125.     Clause 54 inserts sections 73D and 73E into NRSWA.

126.     Section 73D provides for regulations supplementing sections 73A-73C. In particular, these may provide for the following:

• information for resurfacing notices;

• deciding which undertaker should be served with the notice;

• notification of prescribed events by undertakers;

• prescribe circumstances in which an undertaker is entitled to pay a sum to the street authority instead of executing the works specified in a re-surfacing notice, and make provision about the manner in which such sums are to be calculated;

• rights of review or appeal against a notice or any requirement contained it ;

• determination of disputes;

• application of any other provisions in Part 3 of NRSWA or in the Highways Act 1980 to resurfacing works;

127.      Section 73D(3) enables offences to be created by regulations.

128.     Section 73E provides for the Secretary of State to issue a code of practice giving practical guidance on the matters in 73A- 73D and on regulations made under those sections.

Clause 55: Contributions to costs of resurfacing by undertaker

129.     This clause inserts a new 78A into NRSWA which deals with the contributions to costs in relation to resurfacing work by undertakers. It provides for street authorities to pay contributions to the undertaker carrying out the resurfacing as well as for contributions from other undertakers who have carried out reinstatements in that part of the street. It also provides for regulations to set out how the proportions of costs are calculated and how to deal with disputes.

Part 5: Highways and Roads

130.     In this Part, the regulation making powers referred to in the Highways Act 1980 are exercised by the Secretary of State in England, and by the National Assembly for Wales in Wales. References in this Part to the power to make regulations should be read accordingly.

Clause 56: Strategic Roads in London: initial designation by Secretary of State

131.     Clause 56 provides that the Secretary of State may by order designate roads as strategic roads, other than roads for which the Secretary of State or Transport for London is the traffic authority. A strategic road is a road in respect of which the powers in section 301A of the Highways Act 1980, and section 121B of the Road Traffic Regulation Act 1984 may be exercised (as those sections are amended by clauses 58 and 59 this Bill).