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Session 2007 - 08
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Arrangement of Clauses (Contents)

[HC]
Transport for London Bill [HL]

[AS AMENDED IN COMMITTEE]

 

EXPLANATORY MEMORANDUM

This Bill provides Transport for London with further powers in respect of its responsibilities relating to road user charging, London cabs and private hire vehicles, fare enforcement, street management and miscellaneous matters.

PART 1

PRELIMINARY

Clause 1 deals with citation and commencement, and Clause 2 with definitions of certain expressions used in the Bill.

Clause 3 provides for certain provisions of the Bill to come into operation on a day or on days to be appointed by Transport for London ("TfL").

PART 2

ROAD USER CHARGING

Clause 4 deals with the interpretation of Part 2 of the Bill.

Clause 5 enables a TfL charging scheme, subject to the approval of the Secretary of State, to make it a summary offence punishable by a fine not exceeding level 2 on the standard scale for a person without reasonable excuse to contravene, or fail to comply with, any specified requirement of a TfL scheme. Paragraphs 25 and 27 of Schedule 23 to the Greater London Authority Act 1999 ("the 1999 Act") create certain specific offences relating to charging schemes. However, those offences only apply in the specific circumstances described in paragraphs 25 and 27 and do not apply to other failures to comply with requirements of a charging scheme. Clause 5 fills this gap.

Subsection (2) ensures that the power to create further offences under subsection (1) does not include a power to create an offence consisting only of the failure to pay a charge or penalty charge or other contravention or failure where a penalty charge is payable.

Subsection (3) makes it clear that the power to create further offences under Clause 5 is not intended to replace the specific offences relating to road user charging provided by other statutory provisions.

Clause 6 enables TfL to make provision in TfL charging schemes to extend the existing powers to immobilise and remove vehicles found in a charging area where the charge has not been paid. The existing powers in the TfL scheme are included by virtue of the powers in the Road User Charging (Charges and Penalty Charges) (London) Regulations 2001 ("the Charges and Penalty Charges Regulations") made under paragraph 27 of Schedule 23 to the 1999 Act. Paragraph 31 of Schedule 23 provides that a TfL charging scheme may not authorise the examination nor the clamping or removal, for any purpose relating to or connected with road user charging, of a motor vehicle found within a charging area at a time at which the vehicle is not on a road.

Clause 6 amends the Charges and Penalty Charges Regulations and paragraph 31 of Schedule 23 so as to enable provision to be made in TfL schemes for examining, immobilising or removing motor vehicles found within the charging area which are not on roads but are in public off-street parking places as defined in Clause 6. This would include vehicles which are parked off street in council or other public car parks but not in private driveways. TfL cannot enter a public off-street parking place to exercise the powers to examine, immobilise or remove vehicles without the consent of the operator, which cannot be unreasonably withheld but may be given subject to reasonable conditions. Provision is made for any question as to whether any consent is unreasonably withheld or is given subject to reasonable conditions to be subject to arbitration.

Subsection (7) provides that the consent of the operator can be made subject to conditions requiring TfL to reimburse the operator in respect of loss of revenue, damage or other liability sustained by the operator as a result of the immobilisation or removal of any vehicle or any other action by TfL. Subsection (8) provides that the owner, keeper or driver of a vehicle which is immobilised on or removed from a public off-street parking place shall not be required to pay to the operator any car parking charges or penalties additional to those already paid or due to be paid at the time the vehicle was immobilised or removed. Subsection (10) ensures that the operator will be reimbursed by TfL for any losses sustained by the operator as a result of the operation of subsection (8).

Clause 7 clarifies TfL's ability to suspend, or partially suspend, the operation of a TfL scheme for such period or periods as TfL think fit. For example, a TfL scheme may be suspended where there is a change of technology.

Clause 8 makes it an offence for a person who has the benefit of an exemption from road user charges to fail to notify relevant changes in circumstances. The Greater London (Central Zone) Congestion Charging Order 2004 (as varied) made under Schedule 23 to the 1999 Act requires TfL to maintain a register of non-chargeable, reduced rates and resident's vehicles for the purposes of administering the provisions in the Scheme which give exemptions from road user charges or reduced rates of charges for certain vehicles or vehicles owned by qualifying residents. The Scheme provides that the registered keeper of a vehicle or a qualifying resident in relation to whom particulars of a vehicle are entered in the register is required to notify TfL if he is aware that his vehicle has or will cease to be a non-chargeable, reduced rate or resident's vehicle.

Clause 8 creates a summary offence punishable by a fine not exceeding level 2 on the standard scale for failure to comply with a notification requirement in a TfL charging scheme. The provision is drafted in general terms so as to apply not only to the notification requirement in the Greater London (Central Zone) Congestion Charging Order 2004 but also to any other similar notification requirements which may be contained in future TfL charging schemes.

PART 3

LONDON CABS AND PRIVATE HIRE VEHICLES

London cabs: general provisions

Clause 9 makes provision as regards directional taxi ranks. Under section 35 of the London Hackney Carriage Act 1831 and section 17 of the London Hackney Carriage Act 1853 the driver of a London cab which is standing in a street is deemed to be plying for hire and it is an offence for him to refuse to take any person wishing to hire the cab on a journey provided it is less than a specified distance or time. Clause 9 enables TfL to designate directional taxi ranks for cab drivers who wish to ply for hire only for journeys in a particular direction specified in a cab order. The provision requires TfL to cause a sign clearly indicating the specified direction to be displayed at the rank. The drivers of cabs standing at such ranks would be able to refuse to accept journeys unless they are in the specified direction. A directional taxi rank can be designated as such for all times or for only certain times of the day, days or other periods.

Clause 10 enables TfL to designate the whole or part of any taxi rank to be a rest rank. The provision requires TfL to cause a sign clearly indicating that the rank is a rest rank to be displayed at the rank. The cab order designating the rest rank could also prescribe the maximum time any driver is permitted to stand his cab in the rest rank. The drivers of cabs standing at such ranks would be able to refuse to accept journeys. Like a directional taxi rank, a rest rank can be designated as such for all times or for only certain times of the day, days or other periods.

Clause 11 makes provision to change the tickets issued to taxi drivers to badges. Section 8 of the London Hackney Carriages Act 1843 provides that drivers of hackney carriages must be issued with metal "tickets". Clause 11 amends section 8 and the other provisions of the 1843 Act so as to change the term "ticket" to "badge" and removes the requirement that the badge must be made of metal.

Clause 12 makes provision to prevent TfL disclosing the address of the holder of a cab licence to any person unless it appears to TfL that that person has sufficient reason for requiring that information.

Clause 13 changes the price payable by taxi drivers for a replacement badge. Section 19 of the London Hackney Carriages Act 1843 allows cab drivers to obtain a replacement metal "ticket" at such sum, not exceeding 15p, as TfL shall from time to time appoint. Clause 13 changes the price payable for a replacement badge to such sum as TfL shall consider reasonable.

Clause 14 extends the time limit for making complaints for cab driving offences. Section 38 of the London Hackney Carriages Act 1843 provides that complaints under that Act, the London Hackney Carriage Act 1831 or regulations made under those Acts must be made within 7 days after the cause of the complaint has arisen. Clause 14 increases this time limit to 28 days.

Clause 15 makes provision regarding the fares for cab journeys which start within London but end outside London. At present there is some doubt as to whether the controls on cab journeys contained in paragraph 1 of section 17 of the London Hackney Carriage Act 1853 and the London Cab Order 1934 apply where the driver of a cab makes a demand for a fare outside London. Clause 15 amends the London Cab and Stage Carriage Act 1907 by providing that the driver and passenger may agree a negotiated fare at the commencement of the journey or, after its commencement, if the driver and passenger agree a new destination. In the absence of such an agreement, the fare payable is that on the taximeter. Demanding more or taking more than the proper fare is made a summary offence punishable with a fine not exceeding level 3 on the standard scale. Subsection (2) makes it clear that Clause 15 does not affect the law relating to cab drivers' obligations to undertake journeys.

The offence and penalty is the equivalent to the offence under paragraph 1 of section 17 of the 1853 Act which applies to journeys wholly within London.

Clause 16 provides that a notice under section 2 of the London Hackney Carriage Act 1853 that a cab is not in a fit condition may be served on the driver of the cab as well as its proprietor. If a notice is served either on the proprietor or on the driver, and the cab is used in contravention of the notice, the vehicle licence may be suspended. However the proprietor will not be guilty of an offence under section 7 of the Metropolitan Public Carriage Act 1869 in respect of the use of the cab unless notice has also been served on him. At present the notice must be served on the proprietor for the vehicle licence to be suspended.

London cabs and private hire vehicles: fixed penalties

Clauses 17 to 22 and Schedules 1 and 2 provide a regime for fixed penalties as regards certain offences relating to London cabs which is similar to that provided as regards certain offences under the Highways Act 1980 by sections 8 to 11 of, and Schedules 2 and 4 to, the London Local Authorities and Transport for London Act 2003.

Clause 17 makes the offences specified in Schedule 1 to the Act, which relate to London cabs, fixed penalty offences. Where on any occasion an authorised officer believes that a person has committed an offence specified in Schedule 1, he may serve the person concerned with a notice ("a fixed penalty notice") on the spot offering him the opportunity of paying a fixed penalty instead of being prosecuted for the offence. Schedule 2, introduced by subsection (3), makes provision relating to the keeping of accounts and application of money received by way of fixed penalties. TfL may apply the amounts received for any of the cab or private hire vehicle related purposes specified in paragraph 2(4) of Schedule 2.

Clause 18 enables the Secretary of State by regulations to amend Schedule 1 by making further cab or private hire vehicle offences into fixed penalty offences or by removing offences from the regime. The power could only be exercised after consultation with the Mayor, the Greater London Assembly, TfL, every London borough council and such persons or bodies appearing to the Secretary of State to be representative of persons who would be affected.

Clause 19 provides for fixed penalty notices to be given in respect of fixed penalty offences under Clause 17. Subsection (2) of Clause 19 provides that where a fixed penalty notice is served, the recipient cannot be convicted of the offence in question if he pays the fixed penalty within 28 days from the date of the notice. No proceedings can be instituted for the offence until the end of that period. Where a fixed penalty notice is served in respect of an offence to which section 38 of the London Hackney Carriages Act 1843 applies, the time limit for bringing proceedings is extended from 28 days (as provided by clause 14) to 42 days. Subsections (3) to (5) contain provisions relating to the contents, manner of service and form of fixed penalty notices. Subsection (6) provides that the fixed penalty must be paid to TfL. Subsection (7) provides that a certificate signed by TfL's chief finance officer stating that a fixed penalty was or was not received by a specified date is evidence of the facts stated in the notice.

Clause 20 gives TfL the function of setting the levels of fixed penalties and enables different levels to be set for different cases or classes of case. In setting the levels, TfL shall take into account the maximum fine for the particular fixed penalty in question and may take account of the costs or expected costs of administering and enforcing the provisions of the enactment under which the fixed penalty offence is created. TfL is required to publish the levels of fixed penalties in such manner as the Mayor of London determines.

Clause 21 requires TfL to notify the Secretary of State of the levels of fixed penalties set by TfL. The levels cannot come into force until the end of one month from the date of notification (or any shorter period allowed by the Secretary of State). If the Secretary of State objects to the levels within the one month period, they cannot come into force and the Secretary of State may instead make regulations setting the levels. Where the levels are set by regulations, TfL cannot propose any changes in the levels for a period of twelve months.

Clause 22 provides that any power of the Secretary of State to make regulations under clauses 18, 19 or 21 includes a power to make different provision for different circumstances and in respect of such cases only as may be specified. Provision is also made for the procedure by which any regulations are made.

Private hire vehicles

Clause 23 makes provision as regards the production by the driver of a London PHV vehicle of his badge. Section 14(3) of the Private Hire Vehicles (London) Act 1998 ("the 1998 Act") requires a London PHV driver to wear the badge issued to him under the Act in such a position and manner as to be visible. Subsection (1) of clause 23 amends that provision so as to require a PHV driver, in addition, to produce his badge for inspection if so requested. This would ensure that any person such as a potential customer or constable can examine the badge closely enough to ascertain that the driver is licensed. Similar requirements apply to London cab drivers under section 17 of the London Hackney Carriages Act 1843.

Subsection (2) of Clause 23 makes an amendment to the 1998 Act which is consequential on the amendment made in subsection (1).

Clause 24 makes provision as regards the return of licences which have been suspended or revoked. Section 17(2) of the 1998 Act enables TfL to suspend or revoke a London PHV operator's licence, a London PHV licence or a London PHV driver's licence with immediate effect if TfL is of the opinion that this is required in the interests of public safety. There is also power under section 9(3) of the 1998 Act for a constable or officer authorised by TfL to suspend a London PHV licence if he is not satisfied as to the fitness of the relevant vehicle.

Clause 24 amends section 22 of the 1998 Act so as to require the holder of a London PHV operator's licence, a London PHV licence or a London PHV driver's licence which has been suspended or revoked with immediate effect to return the licence forthwith to a constable or authorised officer if so requested. The holder of a London PHV driver's licence who is required to return it in these circumstances may also be required to return his driver's badge forthwith. Where a London PHV licence is required to be returned, the owner of the vehicle may also be required to return forthwith every plate or disc which was issued for the vehicle under section 10 or any regulations made under the 1998 Act.

Subsections (4) and (8) of Clause 24 also make amendments to the 1998 Act to reflect the fact that TfL issues two identification discs for each licensed private hire vehicle, one under section 10 of the 1998 Act and the other under paragraph 11 of Schedule 2 to the Private Hire Vehicles (London PHV Licences) Regulations 2004.

Clause 25 amends section 4(3)(d) of the 1998 Act which requires a licensed PHV operator to keep records of particulars of all private hire vehicles and drivers available to carry out bookings at each of his specified operating centres. Clause 25 amends that provision so that those records are only required to be kept at one of the specified operating centres. The licensed PHV operator is required to give notice to the licensing authority and also display a notice at each specified operating centre stating the address of the operating centre where those records are kept.

Clause 26 amends section 23(1) of the 1998 Act which requires TfL to maintain a register of licences granted under that Act and to make the register available for public inspection free of charge. The name and address of each licence holder must be included in the register. Clause 26 amends section 23 so as to remove the requirement for each licence holder's address to be contained in the register which is open to public inspection. Under the amended provision TfL will be required to keep a supplemental register containing the address of each licence holder and may only disclose the address to a person if it appears to TfL that that person has sufficient reason for requiring that information.

PART 4

SURFACE TRANSPORT

Clause 27 amends Schedule 17 to the 1999 Act which provides for the payment of penalty fares. This regime may be applied by order to any local service or train service provided by TfL or any of its subsidiaries or by other persons under arrangements made with TfL. The penalty fare provisions have been applied to all TfL local bus services, London Underground and Docklands Light Railway.

Paragraph 5 of Schedule 17 initially set the amount of the penalty fare for a local service at £5 and at £10 for a train journey and gave power to the Mayor to change those fares by order. The levels are currently set at £20 for both local services and train journeys. There is no provision for reduced rates for early payment. A modified version of Schedule 17 currently applies in relation to the Croydon Tramlink. This does allow for a reduced rate of penalty fare to apply if paid within 21 days. The current levels are £20 and £35.

Clause 27 amends paragraph 5 of Schedule 17 to the 1999 Act so as to provide an early payment regime. It provides that a penalty fare of £50 is payable for both local services and train journeys but this is reduced to £25 if payment is made before the end of 21 days. The existing power in paragraph 5(2) of Schedule 17 for the Mayor to change those levels is retained.

Under subsection (4) the amendments made by subsection (1) will automatically have effect with respect to the services to which the penalty fare provisions in Schedule 17 have been applied. It is intended that relevant orders will be made to apply the standard penalty fare provisions in Schedule 17 to Croydon Tramlink so that a uniform regime will apply to all services subject to penalty fares.

Subsection (5) provides that the changes made by Clause 27 do not apply where a person has become liable to pay a penalty fare before Clause 27 comes into force.

Clause 28 makes provision as to the enforcement of penalty fares. Paragraph 7(1) of Schedule 17 to the 1999 Act provides that a person who is required to pay a penalty fare but does not do so may be required to give his name and address to a person authorised by TfL. Subsection (2) of Clause 28 amends that provision by providing that any persons found without a valid ticket may be required to give their name and address irrespective of whether they have been required to pay a penalty fare or have paid it.

This will enable TfL to ascertain whether or not persons travelling without tickets are repeat offenders and make use of that information when deciding whether to caution them, require them to pay penalty fares or prosecute them.

Clause 29 provides that where TfL has applied for and obtained an anti-social behaviour order under Part 1 of the Crime and Disorder Act 1998 TfL will also be authorised to bring further proceedings under that Act where there was a breach of such an order.

PART 5

STREET MANAGEMENT

Clause 30 deals with the interpretation of Part 5.

Clause 31 makes provision for TfL which is equivalent to that made under section 10(6) of the Highways Act 1980 ("the 1980 Act") as regards local authorities. Section 10(2) of the 1980 Act makes provision for the Minister to make orders designating highways or proposed highways as trunk roads and converting trunk roads into local highways. Where the Minister proposes to make such an order, the procedure in Part I of Schedule I to the 1980 Act contains requirements including serving a council in whose area the highway or proposed highway is situated with notice of the proposed order and copies of the relevant documents. If a council who are responsible for the maintenance of a highway which is proposed to be a trunk road, or who will become so responsible if the order is made, object to the proposed order, the order is subject to special parliamentary procedure under section 10(6) unless the objection is withdrawn. However, no equivalent provision is made as regards TfL and GLA roads.

Clause 31 applies where a proposed order under section 10(2) of the 1980 Act would convert a GLA road into a trunk road or would convert a trunk road into a GLA road. Part I of Schedule I to the 1980 Act is amended to require TfL to be served with notice of the proposed order and copies of the relevant documents. Section 10(6) of the Act is amended so that if TfL objects to the order it will be subject to special parliamentary procedure.

The effect of Clause 31 is to put TfL into the same position as any other local highway authority.

Clause 32 amends section 11 of the 1980 Act which provides that when a highway becomes a trunk road, any functions of construction, maintenance or improvement exercisable as respects that highway by a council under a local or private Act become exercisable by the Minister instead of by the council. Clause 32 amends section 11 so as to provide that where a GLA road becomes a trunk road under section 10(2) of the 1980 Act, any such functions relating to the GLA road which are exercisable by TfL shall instead become exercisable by the Minister.

Clause 33 makes provision as regards privately maintainable bridges carrying GLA roads. Sections 93 and 94 of the 1980 Act make provision as regards the reconstruction, maintenance and improvement of privately maintained bridges which carry a highway over a railway, canal, river or other watercourse or depression. Section 93 enables the owner of a road bridge or the local authority where they consider the bridge to be dangerous or in need of improvement to apply to the Minister for an order making provision for the reconstruction or improvement of the bridge. Such an order can, for example, require the owner or the local highway authority to carry out works to the bridge or for responsibility for the bridge to be transferred to the local highway authority. Section 94 enables the highway authority and owner to enter into agreements relating to the bridge such as the payment by the authority of contributions towards the cost of works to the bridge or the transfer to the authority of responsibility for its improvement and maintenance.

While it is clear that the powers in sections 93 and 94 are intended to be exercisable by the local highway authority concerned, section 94 states, without qualification, that the powers, in the case of a bridge in Greater London, are exercisable by the council of the borough in which it is situated or, if it is in the City of London, by the Common Council of the City of London. Section 95 is defective in that it does not make any provision for GLA roads for which TfL is the local highway authority.

Clause 33 amends section 95 to provide that the powers of sections 93 and 94 are exercisable by TfL in the case of bridges carrying GLA roads. This amendment merely reflects the fact that TfL is the local highway authority in the case of GLA roads.

Clause 34 enables TfL, subject to obtaining the consent of the local authority, to erect flag poles, pylons and other structures on GLA roads for the purposes of displaying decorations. Where the GLA road is carried by, or forms part of the approaches of, a privately maintainable bridge the consent of the owner of the bridge must be obtained. That consent may be granted on terms, including terms enabling the owner to remove the flag poles etc, to reinstate the bridge and to recover the reasonable costs of doing so from TfL.

Subsection (5) makes provision to secure the safety of road users by requiring TfL in the exercise of the powers, to ensure that the works do not obstruct the road, obscure traffic signs or interfere with the enjoyment of adjacent premises or the apparatus of utilities. The works must be properly maintained and, so far as is necessary, properly lit.

Subsection (6) makes it a summary offence punishable by a fine not exceeding level 3 on the standard scale to interfere with or remove works provided under the clause.

The powers in Clause 34 are similar to those of the relevant London local authorities under section 144 of the 1980 Act.

Clause 35 enables TfL to serve a 28 day notice on the owner or occupier of land adjoining a GLA road requiring the owner or occupier to carry out works to prevent soil or refuse from the land falling on to and obstructing the GLA road or choking a sewer or gully. Failure to comply with the notice is made a summary offence punishable with a fine not exceeding level 3 on the standard scale. There is a daily penalty of £50 for each day on which the offence continues. Subsection (4) applies section 311 of the 1980 Act under which, if the offence in respect of which the person was convicted is continued after conviction, the court before whom the person is convicted of the original offence may fix a reasonable period from the date of conviction for compliance by the defendant with any directions given by the court. Where such a period is fixed, the defendant is not liable to a fine for any day before the end of the period.

Subsection (7) makes offences under subsection (3) fixed penalty offences in the same way as equivalent offences under section 151 of the 1980 Act.

Provision is made by subsection (2) for a person aggrieved by a requirement under Clause 35 to appeal to a magistrates' court.

Before serving a notice under Clause 35, TfL is required to serve not less than 7 days notice on the local authority, or each local authority, in whose area the GLA road is situated.

The powers in Clause 35 are similar to those of the relevant London local authorities under section 151 of the 1980 Act but a notice under Clause 35 would not have effect in a case where an equivalent notice had been served by the London local authority under section 151. As provided by subsection (7) Clause 35 does not affect the exercise of the powers under section 151.

Clause 36 enables TfL to serve a notice on the owner or occupier of land adjoining a GLA road on which there is a source of danger to persons using the road. The notice may require the owner or occupier to carry out fencing or other works within a specified period of time to prevent the danger.

Under subsection (2) a person who is aggrieved by a requirement in a notice may appeal to a magistrates' court.

Under subsection (3) if a person fails to comply with a requirement in the notice, TfL may carry out the necessary works and recover the reasonable expenses of doing so from the person concerned.

Before serving a notice under Clause 36, TfL is required (except in a case of emergency) to serve not less than 7 days notice on the London local authority, or each local authority, in whose area the GLA road is situated. In an emergency TfL would be required to notify the local authority at the same time as, or as soon as reasonably practicable after, serving the notice.

The powers in Clause 36 are similar to those of London local authorities under section 165 of the 1980 Act but a notice under Clause 36 would not have effect in a case where an equivalent notice had been served by a London local authority under section 165. Subsection (7) provides that powers exercised under this clause by TfL will not affect the exercise by London local authorities of those powers.

Clause 37 gives TfL powers as regards dangerous forecourts abutting on GLA roads. Section 166 of the 1980 Act confers power on a competent authority to serve a notice on the owner or occupier of a forecourt of premises adjoining a street if the forecourt or any steps or projection or goods on the forecourt is or are a source of danger, obstruction or inconvenience to the public. The notice may require the owner or occupier to fence the forecourt or to take other steps to prevent the danger, obstruction or inconvenience. A notice may also be served as respects a stall or erection on the forecourt of premises which is injurious to the amenities of the street.

For the purposes of section 166, the competent authority, in the case of a highway outside Greater London, is the local authority and also the highway authority. But in the case of a highway within Greater London, the competent authority is only the local authority. In most cases in Greater London the local authority is also the highway authority so no additional mention is needed for the highway authority. However, that is not the case for GLA roads, where TfL is the highway authority.

Clause 37 amends section 166 to provide that, in the case of a GLA road, the competent authority is the local authority and TfL, the highway authority. The effect is that the powers of section 166 are exercisable in relation to a GLA road both by TfL and by the relevant London local authority as is the case for a highway outside Greater London.

Before serving a notice under Clause 37, TfL is required (except in the case of emergency) to serve not less than 7 days notice on the local authority, or each local authority, in whose area the GLA road is situated. In an emergency TfL would be required to notify the local authority at the same time as, or as soon as reasonably practicable after, serving the notice. A notice served under Clause 37 would not have effect in a case where an equivalent notice had been served by a London local authority under section 166.

Clause 38 makes provision to secure the safety of users of GLA roads where a retaining wall is within 3.66 metres of a GLA road and is higher than 1.37 metres above the ground level of the road. Where such a retaining wall is in a condition which may endanger persons using the road, TfL may serve a notice on the owner or occupier of the land on which the retaining wall is situated requiring him to carry out the works necessary to make the wall safe.

Subsections (3) and (4) apply provisions in the Public Health Act 1936 relating to appeals and enforcement. Under those provisions a person served with a notice requiring him to carry out works may appeal to a magistrates' court on certain specified grounds and there is a further right of appeal to the Crown Court. Subject to such appeals, if the person on whom the notice is served fails to carry out the works TfL may itself carry them out and recover the expenses reasonably incurred in doing so. Failure to comply is also a summary offence punishable with a fine not exceeding level 4 on the standard scale and with a fine not exceeding £2 for every day on which the default continues.

Before serving a notice under Clause 38, TfL is required (except in a case of emergency) to serve not less than 7 days notice on the local authority, or each local authority, in whose area the GLA road is situated. In an emergency TfL would be required to notify the local authority at the same time as, or as soon as reasonably practicable after, serving the notice.

The powers in Clause 38 are similar to those of London local authorities under section 167 of the 1980 Act but a notice under clause 38 would not have effect in a case where an equivalent notice had been served by a London local authority under section 167. Subsection (9) provides that powers exercised under this clause by TfL will not affect the exercise by London local authorities of their powers under section 167.

Clause 39 amends the meaning of competent authorities for the purposes of section 287 of the 1980 Act where the street in question is a GLA road so as to make TfL a competent authority as well as the relevant London local authority.

Section 287 of the 1980 Act makes provision as respects the erection of barriers in streets for the purpose of securing public order or public safety or preventing congestion of traffic. In the case of emergency or on any special occasion where it is likely that a street will be thronged or obstructed, a competent authority may cause barriers to be erected in the street and kept in position for so long as is necessary.

The powers cannot be exercised in such a manner as to deprive pedestrians of reasonable access to any premises and Schedule 8 to the 1980 Act makes provision requiring a competent authority to obtain certain consents. The removal of a barrier provided under section 287 is an offence.

Clause 40 amends the meaning of competent authorities for the purposes of section 300 of the 1980 Act so as to include TfL as well as the relevant local authorities.

Section 300 of the 1980 Act enables competent authorities to use appliances or vehicles for cleansing, maintaining or improving footways or their verges and for certain other purposes notwithstanding any statutory provision prohibiting or restricting the use of­ ˝footways. Regulations may be made by the Secretary of State prescribing the conditions under which those powers are exercisable.

Provision of amenities or services on certain GLA roads

Clauses 41 to 47 confer on TfL powers relating to the provision of amenities or services on certain GLA roads.

Clause 41 defines the categories of GLA roads in relation to which Clauses 42 to 47 apply ("relevant GLA roads").

Clause 42 confers powers on TfL to carry out works on, in or over a relevant GLA road or to place objects or structures on a relevant GLA road to enhance the amenity of the road and its immediate surroundings (such as, for example, by providing lawns, trees, shrubs or plants) or to provide a service to the public. The powers to place objects or structures on the road are subject to obtaining the consent of the frontagers with an interest both to the works and to the purposes for which they will be used. The powers in Clause 42 are similar to those of London local authorities under section 115B of the 1980 Act.

Clause 43 confers power on TfL to provide, maintain and operate facilities for recreation or refreshment on a relevant GLA road. Where the facilities are to be provided on a footway in relation to which no traffic order is in force, the consent of frontagers with an interest must be obtained. The powers in Clause 43 are similar to those of London local authorities under section 115C of the 1980 Act.

Clause 44 provides that TfL may, in the exercise of the powers of Clause 42 or 43, restrict the access of the public to any part of a relevant GLA road. However, this power is subject to various limitations. TfL may not prevent non-vehicular traffic from entering or passing along the road or having normal access to adjoining premises. The use of the road by vehicles which is not prohibited by a traffic order cannot be prevented and access to the apparatus of statutory undertakers or electronic communications apparatus must be preserved.

Clause 45 makes provision for notices to be published before the exercise of any power conferred by Clause 42 or 43. The notice must be displayed at or near a place where the proposal relates and a copy must be served on the owner and occupier of any premises appearing to TfL to be likely to be materially affected. The notice must give not less than 28 days within which representations regarding the proposal may be made to TfL. Any such representations must be taken into consideration by TfL before the exercise of the power.

A notice is not required where TfL proposes to exercise a power regarding a road in relation to which a traffic order has been made.

Clause 46 provides that TfL must obtain the consent of any local authority for the area in which TfL proposes to exercise a power under Clause 42 or 43 before exercising that power.

Clause 47 provides that any consent required under Clauses 42, 43 or 46 may not be unreasonably withheld but may be given subject to any reasonable conditions. Consent is deemed to have been given if TfL has served a notice asking for consent on a person and he fails within 28 days to give notice of his consent or his refusal to give it. Any question whether consent is unreasonably withheld or is given subject to reasonable conditions may be referred to arbitration.

Subsections (4) to (7) make provision as to arbitration under this clause.

Clause 48 makes it clear that any requirements under the Town and Country Planning Act 1990 or the Planning (Listed Buildings and Conservation Areas) Act 1990 are unaffected by the powers contained in Part 5.

PART 6

MISCELLANEOUS

Clause 49 confers power on a qualifying subsidiary of TfL to enter into derivative investments for the purpose of limiting the extent to which TfL, any subsidiary of TfL, a joint venture of TfL or an associated undertaking of TfL will be affected by changes in the interest rates, exchange rates or certain other market rates or prices specified in subsection (3). This will enable a subsidiary of TfL to enter into certain swaps transactions. Under subsection (1) the powers are exercisable for the purposes of the prudent management of the financial affairs of TfL and its subsidiaries.

Subsection (10)(c) defines a derivative investment for the purposes of Clause 49 as including an instrument giving entitlements to investments, an option, a future or a contract for differences. These expressions are, in turn, also defined in subsection (10). The various permitted transactions all provide, by different means, ways in which arrangements can be made to mitigate risk by changes in interest rates, exchange rates or the other specified market rates or prices.

Subsection (2)(b) provides that the consent of TfL is required for the exercise of the powers of Clause 49 and under subsections (4) to (6) TfL may issue written guidance and general or specific directions to a qualifying TfL subsidiary relating to the exercise of its functions under Clause 49. TfL's powers to issue guidance or directions do not prejudice the Mayor's powers to issue guidance or directions to TfL under section 155 of the 1999 Act.

Subsection (8) makes it clear that section 164(a) of the 1999 Act (which requires the Greater London Authority and TfL to exercise their powers so as to ensure that a subsidiary of TfL does not do anything which TfL does not have power to do) does not apply to the exercise of the powers of Clause 49 by a qualifying TfL subsidiary.

Subsection (10) and Schedule 3 define "qualifying TfL subsidiary" and other expressions used in Clause 49.

Clause 50 clarifies paragraph 18(1) of Schedule 11 to the 1999 Act which enables TfL to acquire land for the purposes of discharging any of its functions and expressly includes the rehousing of the occupiers of dwellings acquired or to be acquired by TfL. Clause 50 makes it clear that TfL may acquire land for the purpose of relocating the occupiers of properties acquired or to be acquired by TfL, or a subsidiary of TfL, such as commercial premises.

Clause 51 makes provision as respects the amendment or revocation of certain orders.

Section 326(2) of the 1980 Act provides that an order under section 14B of that Act which has been confirmed by the Secretary of State may be revoked or varied by subsequent order made or confirmed in the like manner and subject to the like provisions. However, this provision does not apply to an order made under section 14B of the 1980 Act which did not require to be confirmed by the Secretary of State because it was made with the consent of the relevant highway authorities. Subsection (1) provides that an order made under section 14B may be revoked or varied by subsequent order made under that section. The provisions in section 14B(5) requiring the consent of the relevant London boroughs or, where that consent is not obtained, the confirmation of the Secretary of State will apply as regards the subsequent order.

Subsection (2) provides that the power under Clause 51 does not apply to a relevant line order or a relevant side roads order within the meaning of the GLA Roads (Continuity of Orders etc.) Order 2000.

EUROPEAN CONVENTION ON HUMAN RIGHTS

In the view of Transport for London the provisions of the Transport for London Bill are compatible with the Convention rights.


 
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Prepared 22 April 2008