The Roads (Northern Ireland) Order 1993

Excavations near a road N.I.

82.—(1) Subject to paragraphs (2) and (3), any person who makes any pit, ditch, drain or watercourse or carries out any other excavation which is not on a road but which is—

(a) within 12 metres of the nearest part of a special road;

(b) within 12 metres of the middle of a carriageway of a first-class or a second-class road; or

(c) within 9 metres of the middle of a carriageway of any other 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 excavation which is carried out—

(a) with the consent of the Department;

(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; or

(d) for the sole purpose of complying with a requirement attached under Article 3(4A) of the Private Streets (Northern Ireland) Order 1980F1 to a determination under Article 3(1) of that Order.

(3) Sub-paragraphs (b) and (c) of paragraph (1) do not apply to any excavation which is carried out—

(a) by a statutory undertaker in the exercise of a statutory power; or

(b) by the operator of[F2 an electronic communications code network] in pursuance of any right conferred by or in accordance with the[F2 electronic communications code]; or

(c) by 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.

(4) Where—

(a) a person has carried out an excavation in contravention of paragraph (1); and

(b) the Department considers that the excavation constitutes 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.

(5) Any person convicted of an offence under paragraph (1) shall, within such period as the court may allow,—

(a) fill in any excavation made in contravention of that paragraph; and

(b) restore anything altered, broken up or taken away in the course of that excavation;

and if he fails to do so he shall be guilty of a further offence and be liable on summary conviction to a fine not exceeding one-tenth of level 3 on the standard scale for each day upon which that failure continues.

(6) Where a person who has been convicted of an offence under paragraph (1) becomes liable to prosecution for an offence under paragraph (5), the Department may itself do anything which he has failed to do and recover from that person any expenses thereby reasonably incurred by it.

(7) 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.

(8) 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 excavation to which the consent relates; and

(b) the safety and convenience of traffic.

(9) Without prejudice to the generality of paragraph (8), 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 excavation 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 excavation, 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 excavation to which the consent relates and of any works which are required by any condition subject to which the consent is given; and

(c) requiring the person to whom the consent is given to insure against such risks in connection with the excavation to which the consent relates as the Department may specify.

(10) Any person who—

(a) carries out any excavation 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.

(11) Where it appears to the Department that a person has contravened paragraph (10), 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) carry out such works as are necessary to obviate any danger to persons using the road; and

(c) recover from that person any expenses thereby reasonably incurred by it.

F1 1980 NI 12

F2 2003 c. 21