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The noble said: My Lords, Clause 53 provides powers for a street authority to require an undertaker to resurface a street or part of a street in circumstances that will be prescribed in regulations. Such an undertaker would have to be carrying out works, have carried out works previously or have sent a notice under Sections 54 or 55 of the New Roads and Street Works Act 1991 that it plans to carry out works on the stretch of road in question. This is listed in the Bill in subsection (2) of new Section 73A, inserted by Clause 53.
If an authority has issued a notice under Section 58A of the 1991 Act of its intention to carry out substantial road works, undertakers do not have to send the normal Section 54 and 55 notices. Amendment No. 80 clarifies that undertakers can still
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be subject to the resurfacing requirements, if they propose to carry out works on the road that is subject to the resurfacing notice.
Amendment No. 83 clarifies that an undertaker cannot be required to resurface a particular road, or stretch of road, if the works which he carried out in the road took place before the date on which Clause 53, inserting the new Section 73A, is commenced.
Amendment No. 88 makes similar provision for limiting the liability of other undertakers to contribute to the cost of resurfacing under Clause 55, which inserts new Section 78A. The effect of these amendments is that the liability to resurface or to contribute to the cost of resurfacing will arise only in connection with works undertaken after commencement of the clauses, irrespective of whether regulations have been made under those clauses.
Amendment No. 84 simply makes explicit that it is the road surface, rather than any other works that the undertaker may be carrying out, that will be subject to any performance standards that may be prescribed under this new Section 73A. I beg to move.
"(8) The reference in subsection (2)(c) to the execution of street works is a reference to the execution of such works after the commencement of this section (whether or not regulations under it have been made)."
Page 28, line 34, leave out "those works conform" and insert "the new surface conforms"
The noble Lord said: My Lords, Clause 54 provides for regulations in relation to aspects of resurfacing by inserting new Section 73D into the New Roads and Street Works Act 1991. New subsection (2)(d) allows regulations to set out circumstances in which an undertaker who has been asked to carry out resurfacing can choose to ask the highway authority to carry out the work in return for a contribution to the cost of the works. The subsection also allows for the calculation of such a contribution.
Amendments Nos. 85 and 86 tidy up the wording in this subsection. The intention is that whether the undertaker or the authority carry out the works, the basis for apportioning the costs between the parties should be the same.
Undertakers have duties under Section 70 of the 1991 Act to reinstate the road after their works. "Reinstatement" in this context covers both temporary and permanent reinstatement, and the road surface as well as the material beneath.
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Amendment No. 87 provides for regulations to relieve undertakers contributing to the cost of resurfacing works of their duties under Section 70, wholly or partly. It mirrors the provisions in new Section 73A(4) for the undertaker to whom the resurfacing notice has been issued. The amendment will be most relevant where more than one undertaker was working at a similar time. It would be wasteful for one undertaker to be obliged to carry out a full reinstatement of the road surface over his works, if another undertaker or the authority was shortly to carry out resurfacing over a wider area. However, an interim reinstatement might still be needed. Amendment No. 87 will allow appropriate regulations to be developed for practical ways of dealing with this in discussion with utilities and authorities. I beg to move.
Lord Rotherwick: My Lords, these amendments aim to clarify that an undertaker asked to resurface a road can choose to ask the highways authority to do the work in exchange for the undertaker contributing towards the cost of the works. They would also allow for regulations to determine how the amount of any such contribution will be calculated and to provide for authorities to send a notice to an undertaker relieving it of its legal duty to reinstate the road after carrying out works.
The utilities industry still fails to see how that clarifies that an undertaker can choose to ask the authority to undertake resurfacing in exchange for a payment. It argues that the wording has been changed but still has the same meaning. It also remains extremely concerned that the regulations do not provide undertakers with a choice but will prescribe circumstances where an undertaker is entitled to pay a sum. Can the Minister outline under what circumstances an undertaker can choose to pay rather than resurface the road itself? Will they have to meet set criteria? Will they have a choice or will it be decided for them? When will they be able to give the industry fuller information on the issue? I look forward to the Minister's response on the matter.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord. He will recognise that we do not have the draft regulations yet and that we are involved in consultation on these very interesting issues. He has rightly identified some of the most significant and salient points. I thought that I had identified the position in speaking to the amendments in which we had met some of the anxieties represented by undertakers. I take on board the points that he has made and assure him that we intend to clarify these matters. We have gone as far as we can with the amendments at this stage. If the noble Lord is still dissatisfied I am sure that we will return to it at Third Reading. In the mean time, I assure him that the regulations will take account of these points. Of course they are subject to development.
"( ) The regulations may provide that where a re-surfacing notice has been served on an undertaker, the street authority may (in such circumstances and to such extent as may be prescribed) by notice relieve any other undertaker within section 73A(2) of his duty under section 70 to reinstate the surface of the street."
(a) requiring a street authority, within such period of such event as may be prescribed, to give to an undertaker to whom subsection (2) applies a notice containing such information as may be prescribed;
(b) requiring a street authority to pay to an undertaker to whom it has given a re-surfacing notice such sum as he has been unable to recover under subsection (1)(b) on account of the insolvency of an undertaker;
The noble Lord said: My Lords, Clause 55 inserts new Section 78A into the New Roads and Street Works Act. It provides that an undertaker who has carried out works in the past in a street that is to be resurfaced can be required to contribute towards the cost of resurfacing. Amendment No. 89 provides that regulations can be made to ensure that relevant undertakers are explicitly informed of their requirement to contribute, by requiring the highway authority to send a notice to them.
The amendment also makes clear that regulations will be able to ensure that where one of the undertakers who has previously carried out work is now insolvent, the highway authority will have to meet any share of the costs that cannot be recovered as a result. It would be unreasonable for those costs to fall on the other undertakers, who are already contributing to the costs of the resurfacing. Amendment No. 91 is consequential, and provides a definition of "insolvency".
I have previously mentioned our intention to provide a consistent approach to these resurfacing provisions, whether an undertaker or the authority carries out the actual resurfacing work. Amendment No. 90 does this by providing that subsections (1) to (5) of the new Section 78A inserted by Clause 55which allows regulations to set out the arrangements for the making of paymentsapply in both cases; that is, not only where the undertaker issued with a resurfacing notice carries out the work, but where it has chosen instead to ask the authority to do the work in exchange for a contribution.
Finally, on resurfacing, new subsection (6B) of Amendment No. 90 enables a link to be made between Section 78 of the 1991 Act and the resurfacing provisions
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in the Bill. Section 78 provides for payments to an authority by an undertaker in respect of the long-term damage to the road structure that their street works caused. This section has never been commenced. If or when it is commenced in the future, this amendment will enable previous payments, or payments due under Section 78, to be taken into account when calculating contributions for resurfacing. Otherwise, undertakers could conceivably be liable to pay twice for the same consequences of their work, and that would be unreasonable. I beg to move.
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