78.—(1) Subject to paragraph (2), any person who carries out any excavation in, or otherwise breaks up the surface of, a road shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(2) Paragraph (1) does not apply to any works done—
(a)with the consent of the Department[F1 or in pursuance of a street works licence or in accordance with an authorisation given by the Department under paragraph 7(2) of Schedule 1 to the Street Works Order];
(b)in the course of constructing—
(i)a permitted means of access to a road within the meaning of Article 80(13);
(ii)any other means of access to any road, if planning permission has been granted in respect of the construction of that means of access; or
(iii)a milk tanker facility within the meaning of Article 81(10);
(c)for the sole purpose of repairing any lawful work or of restoring it to substantially the form in which it was at any time within the preceding 3 years;
(d)for the purpose of complying with a requirement attached under Article 3(4A) of the Private Streets (Northern Ireland) Order 1980F2 to a determination under Article 3(1) of that Order;
(e)in relation to a road which is not a[F1 protected street], by—
(i)a statutory undertaker in the exercise of a statutory power;
(ii)the operator of[F3 an electronic communications code network] in pursuance of any right conferred by or in accordance with the[F3 electronic communications code]; or
(iii)the holder of a licence under Article 10(1) of the Electricity Order in pursuance of any right conferred by or in accordance with Schedule 4 to that Order;
[F1(f)in relation to a road which is a protected street, with the consent of the Department under Article 21(1) of the Street Works Order, or by vitue of Article 21(2) of that Order;]
(g)in the course of constructing a gutter in the footway in accordance with Article 53(2); or
(h)for the sole purpose of planting any grass, tree or shrub of a mature height not exceeding 500 millimetres in a verge in a road where—
(i)the road does not include a footway;
(ii)the verge is provided for the purpose of containing mains, drains, pipes, cables and other apparatus; and
(iii)the planting is carried out by or on behalf of the owner or occupier of land on so much of the verge as adjoins that land.
(3) Where—
(a)a person has carried out any works in contravention of paragraph (1); and
(b)the Department considers that the works constitute a danger to persons using the road,
then (whether or not proceedings are instituted for an offence under that paragraph), the Department may—
(i)carry out such works as are necessary to obviate the danger; and
(ii)recover from that person any expenses thereby reasonably incurred by it.
(4) Where—
(a)a person is convicted of an offence under paragraph (1); and
(b)he does not, within such period as the court may allow, fill in any excavation made in contravention of that paragraph and make good any damage to the road,
then the Department may itself—
(i)fill in that excavation and make good any damage to the road; and
(ii)recover from that person any expenses thereby reasonably incurred by it.
(5) A consent under paragraph (2)(a) may be given by the Department where it is satisfied that the safety or convenience of traffic using the road, or which may be expected to use the road, will not thereby be prejudiced.
(6) A consent under paragraph (2)(a) shall be given subject to such conditions as seem to the Department to be adequate for securing—
(a)the proper completion of the works and reinstatement of the road; and
(b)the safety and convenience of traffic.
(7) Without prejudice to the generality of paragraph (6), a consent under paragraph (2)(a) may be given subject to conditions—
(a)designed to ensure—
(i)safe access to the road for traffic likely to use the road as a result of the carrying out of the works to which the consent relates; and
(ii)the provision of adequate accommodation adjoining the road for vehicles which, by waiting to load or unload or otherwise using the road for any purpose relating to any such works, might reasonably be expected to obstruct the traffic on the road;
(b)requiring the deposit by the person to whom the consent is given of a sum of money as security for the completion of the works to which the consent relates;
(c)requiring the person to whom the consent is given to insure against such risks in connection with the works to which the consent relates as the Department may specify;
(d)regulating or prohibiting the deposit on the road of building materials and rubbish associated with the works to which the consent relates;
(e)requiring the person to whom the consent is given to cause the works to which the consent relates and any associated building materials or rubbish to be properly guarded and to be properly lighted during the hours of darkness (within the meaning of the Road Traffic Order);
(f)requiring the person to whom the consent is given to fill in any excavation to which the consent relates, if required to do so by the Department.
(8) The person to whom a consent is issued under this Article in respect of any works shall indemnify the Department against any claim in respect of injury, damage or loss arising out of the carrying out of those works, other than a claim in respect of injury, damage or loss which is attributable to the negligence of the Department.
(9) Any person who—
(a)carries out any works in pursuance of a consent given under paragraph (2)(a); and
(b)fails to comply with any condition subject to which that consent was given,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(10) Where it appears to the Department that a person has contravened paragraph (9), then (whether or not proceedings are instituted for an offence under that paragraph) the Department may—
(a)revoke the consent given to that person under paragraph (2)(a);
(b)fill in the excavation, remove any associated building materials or rubbish deposited on the road and make good any damage done to the road; and
(c)recover from that person any expenses thereby reasonably incurred by it.