Section 30: Recovery of costs from local traffic authorities

62.     Section 30 provides that the Secretary of State (in England) or the National Assembly for Wales (in Wales), may recover from an authority the expenditure it has incurred in appointing a Traffic Director to that authority (including expenditure towards any costs incurred by the Traffic Director), after allowing for any of the Traffic Director's costs that are met from other sources.

Section 31: Interpretation of Part 2

63.     Section 31 defines various terms in Part 2. It should be noted that local traffic authorities in England are Transport for London, London Borough Councils, the Common Council of the City of London, County Councils, Metropolitan District Councils and Unitary Councils. Among other things, the section provides that "London authority" means Transport for London, a London Borough Council or the Common Council of the City of London; "Mayor" means the Mayor of London; and defines "road network". It also provides that "traffic" includes "pedestrians".

Part 3: Permit schemes

Section 32: Meaning of "permit scheme"

64.     Section 32 defines the expression "permit scheme" and indicates the provisions which can be included in a permit scheme. The provisions include:

• provisions as to the type of works which do and do not require permits and provisions as to cases where works can be carried out without the issue of a permit (for instance in the case of emergencies);

• provisions as to the conditions which can be attached to the grant of a permit;

• provisions as to arrangements for reviewing or varying permits that have already been issued.

Section 33: Preparation of permit schemes

65.     Section 33 makes provision with respect to the preparation of permit schemes.

66.     Individual local highway authorities (e.g. a county council), or two or more such authorities, may prepare and submit a permit scheme to the appropriate national authority. In this Part, the appropriate national authority is the Secretary of State (in England), or the National Assembly for Wales (in Wales).

67.     The appropriate national authority may direct an individual highway authority, or two or more such authorities, to prepare and submit to it a permit scheme in the form it directs.

68.     In addition, the appropriate national authority can prepare a permit scheme. Such a scheme prepared by the Secretary of State could cover streets in the Royal Parks.

69.     The section provides that those preparing permit schemes must comply with any regulations made under this Part of the Act (referred to in this Part as "permit regulations"). In addition, those preparing schemes must have regard to any guidance that may be issued by the appropriate national authority.

Section 34: Implementation of local highway authority permit schemes

70.     Section 34 provides for the implementation of local highway authority permit schemes. Such a scheme shall not come into effect other than by an order of the appropriate national authority. The order must set out the scheme and specify the date on which it starts operation. The order may include provisions which disapply or modify enactments provided the provisions are in accordance with permit regulations.

Section 35: Implementation of other permit schemes

71.     Section 35 makes provision corresponding to section 34 in relation to permit schemes prepared by the appropriate national authority.

Section 36: Variation and revocation of permit schemes

72.     Section 36 provides that the appropriate national authority may subsequently make a further order varying or revoking a permit scheme which is in force. An order under this section may relate to one or more permit schemes. In addition, an order may vary or revoke an order previously made by a national authority giving effect to a particular permit scheme, or an order under this section. An order made under this section may revoke or disapply enactments to the extent specified in the order, provided that it is in accordance with permit regulations.

Section 37: Permit regulations

73.     Section 37 enables the appropriate national authority to issue permit regulations which make provision with respect to the content, preparation, submission, approval, operation, variation or revocation of permit schemes.

74.     Subsection (2) enables the regulations to provide for certain standard provisions to apply in relation to permit schemes.

75.     Subsection (3) enables regulations to make provision in relation to the matters mentioned in section 33(2), including, for example, provision as to the types of conditions that can be attached to a permit. Subsection (3)(b) enables the regulations to make provision for the purpose of limiting the streets, or type of streets, which may be subject to a permit scheme.

76.     Subsection (4) enables the regulations to make further provision, including:

• the criteria which permit scheme operators have to take into account in deciding whether to issue a permit, with or without conditions, or in considering whether to review or vary a permit;

• provision for the determination of disputes or to enable the facilitation of the determination of disputes (including provision as to mediation, representations, hearings, arbitration and adjudication if appropriate). Connected matters such as costs could also be provided for, as well as provision for the appointment of persons to make or facilitate the determination of disputes.

• conferring a right of appeal (including provision for persons to hear appeals);

• the creation of one or more criminal offences (attracting a maximum fine of £5,000 on summary conviction) in connection with permits.

77.     Subsection (5) provides that regulations made under subsection (4) require the consent of the Lord Chancellor before they can be made in cases where the regulations make provision for or in connection with adjudication.

78.     Subsection (6) provides that regulations may provide for the introduction of fixed penalty notices in relation to any of the criminal offences which are created under the regulations.

79.     Subsection (7) enables the regulations to make provision for the payment of fees in connection with one or more specified stages of the permitting process, including an application for the issue of a permit.

80.     Subsection (8) enables the regulations to make further provision in relation to the payment of fees, including cases where fees are not payable, provision for the repayment of fees, what those fees should be and what use permit scheme operators can make of any sums raised through fees.

81.     Subsection (9) requires that the national authority, in making regulations in relation to permit fees, must try to ensure that the fees payable by users of the schemes do not exceed certain costs. The costs may prescribed by the national authority, and these could include, for instance, costs in connection with issuing permits, keeping a register of permits and enforcement measures for schemes, such as inspectors.

82.     Subsection (10) enables the national authority to make use of estimates of costs when it makes an assessment of the level of costs to authorities of operating a permit scheme. These estimates may include the average costs to authorities or to particular descriptions of authority.

83.     Subsection (11) enables the regulations to require registers to be kept with information on permits and to make provision in connection with the access to information contained in such a register, and for the keeping of accounts in relation to permit schemes.

84.     Subsection (12) enables the regulations to provide for cases in which a highway authority, or two or more highway authorities acting together, can prepare a permit scheme in respect of streets for which they are not the highway authority.

85.     Subsection (13) enables the regulations to modify or disapply enactments in connection with permit schemes.

Section 38: Crown application

86.     Section 38 provides for permit schemes to apply to works carried out by, or on behalf of, central government. Works carried out by or on behalf of the Queen in her private capacity will not require a permit.

Section 39: Interpretation of Part 3

87.     Section 39 defines certain expressions and words used elsewhere in Part 3. Of particular note is the definition of "works". This defines the 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.

88.     The section provides that the Secretary of State may not make the first set of permit regulations unless a draft has been approved by both Houses of Parliament. Any further permit regulations will be subject to the negative resolution Parliamentary procedure.

Part 4 : Street Works

89.     Part 3 of the New Roads and Street Works Act 1991 (NRSWA) contains the 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 (in Wales). References in this Part to the power of the Secretary of State to make regulations should be read accordingly.

Section 40 and Schedule 1: Increase in penalties for summary offences under 1991 Act

90.     Section 40 increases the maximum fines for a number of summary offences under NRSWA from level 3 (£1,000) to levels 4 (£2,500) or 5 (£5,000).

91.      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.

92.      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.

93.     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.

Section 41 and Schedules 2 and 3: Fixed penalty offences

94.     Section 41 inserts a new section 95A into NRSWA to create a fixed penalty notice system for offences.

95.     The table identifying the offences to which fixed penalty notice regime applies is in Schedule 2 to the Act (which inserts a new Schedule 4A to NRSWA). The details of how the system will operate are contained in Schedule 3 to the Act (which inserts a new Schedule 4B to NRSWA).

96.     Subsection (1) of the new section 95A provides that any offence under Part 3 of NRSWA which is listed in the first column of the new Schedule 4A is a fixed penalty offence for the purposes of that Part.

97.     Subsection (2) of the new section 95A provides that offences committed by virtue of section 166 of NRSWA are not fixed penalty offences. In general terms, the effect of section 166 is that in cases where an offence by a body corporate is committed with the connivance or consent, or is attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body, then that officer is also guilty of an offence, and is liable to be prosecuted in the courts. Given subsection (2), the street authority will continue to prosecute such offences through the Magistrates' Court. Section 166 of NRSWA deals separately with the position of Scottish partnerships in Scotland. The Act does not extend to Scotland, and the reference to Scotland in the Act is simply to accurately reflect the ambit of section 166.

98.     Subsection (3) of the new section 95A provides that the Secretary of State may by order modify the new Schedule 4A in NRSWA to provide for an offence under Part 3 of NRSWA to become or cease to be a fixed penalty offence. Subsection (4) of the new section 95A provides that the Secretary of State may not make such an order unless a draft has been approved by both Houses of Parliament.

99.     Schedule 3 to the Act inserts a new Schedule 4B into NRSWA, which contains the provisions that apply where an authorised officer of a street authority gives a person (generally an utility) a fixed penalty notice.

100.     Paragraph 4 of Schedule (4B) provides for the amount of the penalty and the period for payment. Sub-paragraph (1) of that paragraph provides that (subject to paragraph 5) the penalty is to be prescribed by the Secretary of State, but that it may not exceed 30% of the maximum fine for that offence. Sub-paragraph (2) provides that the period for payment of the penalty is the period of 29 days beginning with the day on which the notice is given, and sub-paragraph (3) provides a power to the street authority to extend the period for paying the penalty if they think it appropriate to do so.

101.     Paragraph 5 of the Schedule provides for the amount of the penalty to be discounted, and the period for payment of that discounted penalty. Sub-paragraph (1) of that paragraph provides that the discounted penalty is payable if payment is made during the period of 15 days beginning with the day on which the notice is given. Sub-paragraph (2) provides that the discounted amount is prescribed by the Secretary of State and may not exceed 25% of the maximum fine for that offence.

102.     Paragraph 6(2) of the Schedule provides that no proceedings for the offence may be commenced before the end of the period for payment of the penalty, and paragraph 6(3) provides that no proceedings may be commenced or continued if payment of the penalty is made before the end of the period for payment of the penalty, or accepted by the street authority after that time. It is a matter for the street authority whether to accept a payment after the period for payment of the penalty has passed.

103.     Paragraph 7 of the Schedule provides for a power of the street authority to withdraw notices, in cases where they have been erroneously served or consider there are extenuating circumstances. Sub-paragraph (3) provides that the street authority is bound to consider any representations made by or on behalf of a person given a notice, and that they must decide in all the circumstances whether to withdraw the notice.

104.     Where the penalty is not paid during the period for payment, the street authority may commence a prosecution in the Magistrates Court in the usual way.

105.     Paragraph 8 of the Schedule provides that the Secretary of State may (with the consent of the Treasury) make regulations about the application by street authorities of fixed penalties paid under the Schedule and for the keeping of accounts etc.

106.     Paragraph 9(a) and (c) of the Schedule provides that the Secretary of State may make regulations prescribing the circumstances in which a fixed penalty notice may not be given, and the methods for the payment of penalties (which may, for example, be electronic). Paragraph 9(b) enables the Secretary of State (in England) or the National Assembly for Wales (in Wales) to substitute the periods specified in paragraphs 4(2) and 5(1) (period for payment of the penalty and discounted penalty respectively) for different periods. The regulations would be subject to the negative procedure.

Section 42: Duty of street authority to co-ordinate works

107.     Under section 59 of NRSWA, a street authority has a duty to co-ordinate statutory undertakers' street works and their own road works. The section amends section 59 to provide 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.

Section 43: Directions relating to timing of street works

108.     Section 43 amends section 56 of NRSWA. Section 56 gives authorities certain powers to direct utilities as to the time at which their works may 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 only 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.

109.     The amendment made by subsection (2) enables an authority to direct a utility only 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 2^nd of November.

110.     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.

Section 44: Directions as to placing of apparatus

111.     Section 44 inserts a new section 56A into NRSWA. Section 56A 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, but may merely prevent the undertaker from installing apparatus in certain streets. The section creates a level 5 offence for contravening such a direction.

112.     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.

Section 45: The street works register

113     Section 45 amends section 53 of the NRSWA which places a duty on street authorities 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).

114.     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:

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

• 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.

115.     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.

116.     Subsection (4) inserts a new subsection 5(A), which 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.

Section 46: Records of location of apparatus

117.     Section 46 amends section 79 of NRSWA which 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).

118.     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.

119.     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 made before the regulations take effect.

Section 47: Duties relating to the location of unexpected apparatus

120.     Section 47 amends section 80 of NRSWA which imposes duties on 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.

121.     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.

122.     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 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).

123.     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).

124.     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.

Section 48: Duty to inspect records

125.     Section 48 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.

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

127.     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.

Section 49:Notices of street works

128.     Section 49 rectifies some problems with the giving of advance notices by undertakers under sections 54 and 55 of NRSWA. Subsection (1) amends subsection (3) of section 54 of the 1991 Act. It provides that the advance notice under section 54 must contain the date when the works are intended to start and such other information as may be prescribed. It also inserts a new subsection (4A) into section 54. This requires that if an undertaker does not submit before this start date a further notice, required nearer to the time of works under section 55, then it must supply the authority with a further notice. This notice will contain such information as may be prescribed. Subsection (1) also inserts a new subsections (4B) and (4C) into section 54 which provides that if works have not substantially begun within a prescribed period after the proposed start date in a section 54 advance notice, then the notice ceases to have effect, meaning the proposed works cannot lawfully begin. If the undertaker still wishes to carry out the works, he will have to start the process of giving advance notice all over again. Different periods may be prescribed for different descriptions of works.

129.     Subsection (2) inserts new subsections (8) and (9) into section 55 of NRSWA to provide that if a notice becomes invalid under section 55 then an undertaker must provide a further notice containing such information as may be prescribed. If the undertaker fails to provide this further notice he commits a criminal offence and is liable on summary conviction to a fine not exceeding level 4 fine on the standard scale (£2,500). Subsection (3) amends section 93, to make similar provision in respect of works affecting level crossings or tramways.