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Lord Berkeley: My Lords, I am very grateful to my noble friend. Half way through his contribution I thought that he was issuing an invitation to the utilities to ignore any payment that they did not think was reasonablebut I do not think that he is saying that. However, there could come a time when, if there are a lot of complaints, the courts and local authority resources become clogged up. But we will have to see what happens. On that basis, I beg leave to withdraw the amendment.
"(1B) A direction may not be given under subsection (1A) in respect of works for which a permit has been issued under a permit scheme which is in effect under Part 3 of the Traffic Management Act 2004."
The noble Lord said: My Lords, we had this amendment in Committee. I had hoped that the Government's thinking had moved on somewhat and that we might hear rather more about how these two bits of legislation are expected to work together. I beg to move.
Lord Evans of Temple Guiting: My Lords, the Bill would allow permit regulations to modify or disapply primary and subordinate legislation. One reason for that is to make sure that we do not duplicate certain controls. I said in Grand Committee that we would expect permit regulations to set aside various sections of the New Roads and Street Works Act, including provisions governing where, when and how works take place.
I hope that it is of great reassurance to the noble Lord, Lord Lucas, when I tell him that we have asked the working group of utilities and local authorities to consider precisely what legislation should be dealt with in this way. As the Government accepted the recommendation of the Select Committee on Delegated Powers and Regulatory Reform, these regulations will be subjected to the affirmative procedure, and Parliament will also have an opportunity to scrutinise them. I hope that, in these circumstances, the noble Lord will feel able to withdraw his amendment.
The noble Viscount said: My Lords, as we discussed in Committee, it seems sensible that any person or entity undertaking work on the streets who happens upon unexpected apparatus, which is referred to in Clause 46, should be asked to record it. It also seems sensible that
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those records are held centrally. Clause 46(6)(5) allows for that. In Standing Committee in another place the Minister helpfully commented:
"It is right and sensible to set up a practical regulatory regime . . . that balances the need to ensure that all apparatus under the street is accurately recorded with not placing an unfair burden on the 'innocent persons carrying out the work'".
"They are not responsible for what they find under the road, but as and when they find apparatus, it seems logical to mark it and inform whoever keeps the register".[Official Report, Commons Standing Committee A, 3/2/04; col. 229.]
Under the Government's proposals, the utilities that find an apparatusit is most likely that the utilities will find themwill be asked to store and make records of the find. However, as the apparatus does not belong to them, it seems inappropriate to place on them the burden of storing it. Every utility's records will have to be searched to determine what is under the ground and what has been discovered there in the past. It would seem much more sensible to require the local authority, as the road network manager, to keep those records. That would better meet the need for record keeping without placing an unfair burden on innocent parties. It would also increase safety and accessibility of relevant information that is held by the interested parties, which will know where to look for it.
In Committee the noble Lord, Lord Evansrather generously, I thoughtsaid that we had laid out the problem very fairly and that the Government must think about the matter "between now and Report". I hope that he has had a chance to think carefully about it and will be able to give us his conclusions or helpful assurances. I beg to move.
Lord Davies of Oldham: My Lords, the noble Viscount, Lord Astor, was kind enough to refer to my noble friend's generous spirit. But I am not going to be outdone by my noble friend; I am going to seek to be equally generous.
We have not yet made a decision on when the regulations might be brought forward, but I expect that when the time comes the option for which the noble Viscount has argued will be one that the Government will consider very carefully indeed. We all recognise that there is a problem if we do not have a proper record of the location of apparatus as that could result in great damage and consequent massive disruption to traffic flows. A central register showing the location of apparatus may be set up in the future. In that case, it may be that all the undertaker would have to do is pass on the record to the person keeping the register. We are consulting on the regulations.
I assure the noble Viscount that we do not intend to place an unfair burden on those who find unmarked apparatus. If he doubts our good faith in these termsand I am asking him to take the regulations on trustit will come as some comfort to him that Section 80 of the New Roads and Street Works Act, which this clause amends, has never been commenced, precisely because the Government believe that, as it stood, it
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would have placed too heavy a burden on the finder of the apparatus. So there has been a genuine recognition of the difficulties that attended the matter in the past.
"NOTICES OF STREET WORKS
(1) In section 54 of the 1991 Act (advance notice of certain works)
(a) in subsection (3) for "contain such" there is substituted "state the date on which it is proposed to begin the works and shall contain such other";
(b) after subsection (4) there is inserted
"(4A) If an undertaker who has given advance notice under this section has not, before the starting date specified in the notice, given to the street authority a notice under section 55 in respect of the works, he shall within such period as may be prescribed give to that authority a notice containing such information as may be prescribed.
(4B) An advance notice under this section shall cease to have effect in relation to the proposed works (so that subsection (1) applies again in relation to the works) if those works are not substantially begun before the end of such period beginning with the starting date specified in the notice as may be prescribed, or such further period as the street authority may allow.
(4C) Different periods may be prescribed under subsection (4B) for different descriptions of works."
(2) In section 55 of that Act (notice of starting date of works) after subsection (7) there is inserted
"(8) If a notice under this section ceases to have effect the undertaker shall, within such period as may be prescribed, give a notice containing such information as may be prescribed to those to whom the notice under this section was required to be given.
(9) An undertaker who fails to give notice in accordance with subsection (8) commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale."
(3) In section 93 of that Act (works affecting level crossings or tramways) in subsection (2) for "(7)" there is substituted "(9)"."
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