Public Utilities Street Works Act 1950 (repealed 1.1.1993)

The street works code E+W+S

3 Settlement of a plan and section to be a condition of execution of major works. E+W+S

(1) Subject to the provisions of subsections (3) and (4) of this section, undertakers shall not execute any works to which this section applies until a plan and section thereof have been settled as mentioned in the next or the next but one succeeding section by agreement between the undertakers and each of the authorities or managers concerned or by arbitration, and for that purpose undertakers proposing to execute any such works in a [F1 street][F1 road] shall submit a plan and section thereof to each of the authorities or managers concerned.

(2) This section applies to all code-regulated works except—

(a) inspecting, maintaining, adjusting or repairing apparatus;

(b) placing, altering renewing, changing the position of or removing a service pipe or service line or [F2 overhead telecommunication apparatus] in or from a place not in a trunk road or a classified road, or in or from a place in such a road in so far as the works are to be executed elsewhere than in the carriageway of the road and so as not substantially to affect the traffic on the carriageway thereof;

(c) placing, elsewhere than in a [F3 maintainable highway][F3 public road], apparatus which is required only in connection with the doing of any building or other work on land adjacent to the [F3 street][F3 road] and is intended to be removed on the completion of the building or other work;

(d) any breaking up or opening (other than breaking up or opening a [F4 public sewer][F4 sewer vested in a local authority]), tunnelling or boring in so far as it is to be executed for the purposes of works falling within any of the preceding paragraphs, and any other works so far as requisite for or incidental to works so falling.

(3) In the case of works to which this section applies being emergency works—

(a) the undertakers may execute them without submitting a plan and section thereof under subsection (1) of this section or before a plan and section thereof have been settled; but

(b) as soon as is reasonably practicable after so executing any such works they shall furnish a plan and section thereof to each of the authorities or managers concerned.

(4) Subsection (1) of this section, and paragraph (b) of the last preceding subsection, shall not have effect as to [F5 street][F5 road] managers concerned in respect of a [F5 street][F5 road] which they have no liability to the public to maintain or repair if the undertakers have given them a notice stating the general nature of the works proposed, or of the emergency works executed, as the case may be, and that it is a notice given for the purposes of this subsection, and the [F5 street][F5 road] managers have not, within fifteen days from the date on which the notice was given to them, given notice to the undertakers requiring submission or furnishing of a plan and section to them.

(5) If undertakers execute any works to which this section applies in contravention of subsection (1) thereof, or fail to furnish a plan and section in accordance with an obligation to which they are subject by virtue of paragraph (b) of subsection (3) thereof, they shall in respect of that contravention or failure be liable on summary conviction to a fine not exceeding [F6 level 3 on the standard scale].

(6) If any authority or managers concerned object to any works in the case of which subsection (1) of this section or paragraph (b) of subsection (3) thereof has effect as concerns them and which were executed before a plan and section thereof had been settled, whether the works were executed in contravention of the said subsection (1) or were emergency works, they may, after giving to the undertakers notice of the objection and an opportunity to enter into an agreement with the authority or managers for meeting it, refer the matter to arbitration, and the [F7 arbitrator][F7 arbiter] may direct the alteration of the works to conform to a plan and section settled by him, or the removal of any apparatus placed in the execution thereof, and the undertakers shall be under obligation to comply with any such direction:

Provided that, in settling the terms of any such direction, the [F7 arbitrator][F7 arbiter] shall satisfy himself that compliance therewith will not involve any undue interruption or restriction of the supply or service for the purposes of which the works were executed.

If undertakers fail to execute works in accordance with an obligation to which they are subject by virtue of a direction under this subsection, they shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds in respect of each day of such failure.

(7) An authority or managers to whom a plan and section of works are required by this section to be submitted or furnished may accept, as or in lieu of a plan and section thereof, any description thereof, whether in diagram form or not, which appears to them to be sufficient, and references in this Act to a plan and section shall include references to any such description so submitted or furnished to the form of which the authority or managers have not objected within the time limited by the next succeeding section for objection in form to a plan and section submitted.

Textual Amendments

F1 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(4)(a)

F2 Words substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 29(2), Sch. 5 para. 45

F3 Words “public road” and “road” substituted (S.) respectively for words “maintainable highway” and “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(4)(b)(i)

F4 Words “sewer vested in a local authority” substituted (S.) for words “public sewer” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(4)(b)(ii)

F5 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(4)(c)

F6 Words substituted (E.W.) (S.) by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) by Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G

F7 Word “arbiter” substituted (S.) for word “arbitrators” by virtue of Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(4)(d) (which is in terms expressed to relate to s. 3(5) )

Modifications etc. (not altering text)

C1 S. 3(5) is expressed to be amended (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(4)(d) (but see footnote in s. 3(6) relating to Roads (Scotland) Act 1984).

4 Procedure as to plans and sections, etc.: general provisions. E+W+S

(1) An authority or managers concerned to whom a plan and section of code-regulated works proposed to be executed in a [F8 street][F8 road] are submitted under subsection (1) of the last preceding section shall give notice to the undertakers either—

(a) approving the plan and section without modification,

(b) objecting to them in form as being on too small a scale or giving insufficient particulars,

(c) approving them subject to modifications specified in the notice, or

(d) disapproving them.

(2) Such an authority or managers shall give the notice required of them by the preceding subsection without avoidable delay, and at the latest before the expiration of the following period from the date on which the plan and section were submitted to them, that is to say—

(a) in the case of a plan and section not being such as are mentioned in the succeeding paragraph, twenty-nine days; or

(b) in the case of a plan and section of works relating only to a service pipe or service line or [F9 overhead telecommunication apparatus]; eight days,

and, as between the undertakers and such an authority or managers who have not duly given the notice at the expiration of that period, the plan and section as submitted shall be deemed to have been settled by agreement.

(3) Where such an authority or managers give a notice approving the plan and section subject to modifications, or disapproving the plan and section, the authority or managers shall state their grounds for requiring the modifications, or for their disapproval, as the case may be.

(4) If such an authority or managers duly give a notice objecting to the plan and section in form, or approving them subject to modifications to which the undertakers do not agree, or disapproving them, then, unless the notice is withdrawn in the case of each such authority or managers who have duly given such a notice (in which case the plan and section as submitted shall be deemed to have been settled by agreement between them and the undertakers)—

(a) the undertakers may refer the matter to arbitration; and

(b) the [F10 arbitrator][F10 arbiter] shall settle a plan and section of works of the kind proposed, as works to be executed in the [F10 street][F10 road]:

Provided that—

(i) paragraph (b) of this subsection shall not apply if the case falls within the next succeeding section and the only modifications or disapproval are on the part of the [F11 street][F11 roads] authority and on the ground that some or all of the works ought to be executed in controlled land, and

(ii) paragraph (b) of this subsection shall have effect subject to the provisions of subsection (7) of this section in such a case as is therein mentioned.

(5) On a reference under this or the next succeeding section the [F12 arbitrator][F12 arbiter] shall have power to require the undertakers to submit to him a plan and section in such form, to require any such authority or managers to submit to him such observations on a plan and section submitted to him, and to require either the undertakers or any such authority or managers to furnish him with such information and to take such other steps as appear to him to be requisite, and shall have power to treat compliance with any such requirement made to the undertakers as a condition of his proceeding with the settlement of a plan and section and compliance with any such requirement made to any such authority or managers as a condition of his settling a plan and section otherwise than as proposed by the undertakers.

(6) A sewer authority concerned, or a bridge authority or managers concerned, shall not be entitled to give notice approving a plan and section submitted to them under subsection (1) of the last preceding section subject to modifications, or disapproving the plan and section, on grounds other than such as relate to injurious effect of the proposed works on their sewer, or on the structure or stability of their bridge, as the case may be:

Provided that this subsection shall not apply to a sewer authority, or to a bridge authority or managers, who are also concerned as the [F13 street authority][F13 roads authority] or [F13 street managers][F13 road managers] or as a transport authority.

(7) Where there is a reference to an [F14 arbitrator][F14 arbiter] under subsection (4) of this section in relation to the placing, altering or changing the position of apparatus in a [F14 street][F14 road] which is carried by or goes under a bridge, if he is satisfied that the execution thereof would be likely to affect injuriously the structure or stability of the bridge, and that it is not practicable to meet objection on that ground to the plan and the section submitted, he shall so declare, and shall not settle any plan and section of those works on that reference, but without prejudice to the right of the undertakers to submit another plan and section thereof for the purposes of subsection (1) of the last preceding section.

(8) For the purposes of the application of this and the next succeeding section, in relation to a plan and section of undertakers’ works to be executed in exercise of any power to execute such works conferred by section twelve of the M1 Requisitioned Land and War Works Act 1948 (which relates to government oil pipe-lines and works accessory thereto), or by the joint effect of that section and of section twenty-eight of the M2 Requisitioned Land and War Works Act 1945—

(a) any objection to a plan and section in form shall be disregarded if a Minister within the meaning of the said Act of 1945 certifies that in his opinion it would be against the national interest to submit a plan and section on a larger scale or giving further particulars; and

(b) any modification of a plan and section shall be disregarded in so far as the modification would involve a lateral diversion of a line to which the said section twelve applies (other than a diversion to which the Minister on whose behalf the works are to be executed consents) or any such change of the site of accessory works to which that section applies as would necessitate such a diversion, any disapproval of a plan and section shall be disregarded in so far as the ground therefor is or involves that there ought to be such a diversion or change, and an [F15 arbitrator][F15 arbiter] settling a plan and section shall not thereby provide for any such diversion or change.

Textual Amendments

F8 Word “street” substituted (S.) for word “road” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(5)(a)

F9 Words substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 29(2), Sch. 5 para. 45

F10 Words “arbiter” and “road” substituted (S.) respectively for words “arbitrator” and “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(5)(b)(i)

F11 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(5)(b)(ii)

F12 Word “arbiter” substituted (S.) for word “arbitrator” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(5)(c)

F13 Words “roads authority” and “road managers” substituted (S.) respectively for words “street authority” and “street managers” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(5)(d)

F14 Words “arbiter” and “road” substituted (S.) respectively for words “arbitrator” and “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(5)(e)

F15 Word “arbiter” substituted (S.) for word “arbitrator” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(5)(f)

Modifications etc. (not altering text)

C2 S. 4 modified by Pipe-lines Act 1962 (c. 58, SIF 102), s. 16

C3 S. 4(8) extended by Land Powers (Defence) Act 1958 (c. 30, SIF 28:3), s. 16(5)(a)

Marginal Citations

M1 1948 c. 17(28:3).

M2 1945 c. 43(28:3).

5 Procedure as to plans and sections, etc.: provisions as to works in controlled land. E+W+S

(1) Where a plan and section submitted under subsection (1) of section three of this Act are of works proposed to be executed in a [F16 street which is a maintainable highway or is prospectively a maintainable highway, the street][F16 road which is a public road or prospective public road, the roads] authority (but not any other authority or managers concerned) may disapprove the plan and section on the ground that the works ought to be executed in controlled land abutting on the [F17 street][F17 road], or they may approve the plan and section subject to modifications excluding some of the works on the ground that they ought to be executed in such land:

Provided that the [F17 street][F17 roads] authority shall not so disapprove or require modifications unless they are satisfied that they will be in a position, by exercising powers in that behalf vested in them by virtue of the First Schedule to this Act or otherwise, to confer on the undertakers the right to execute the works in question in the controlled land and all the like rights in relation to apparatus the placing whereof is to be comprised in the works as the undertakers would have if it were placed in the [F17 street][F17 road], and to render those rights exercisable from not later than the expiration of the period of twenty-two days mentioned in subsection (4) of this section.

(2) On a reference to an [F18 arbitrator][F18 arbiter] under subsection (4) of the last preceding section relating to such works as aforesaid as to which the [F18 street][F18 roads] authority have disapproved the plan and section, or have approved them subject to modifications, on the ground that those works ought to be executed in controlled land (whether or not the reference relates to those works only or the disapproval or requiring of modifications was on that ground only), the [F18 arbitrator][F18 arbiter] shall determine whether or not all those works or any of them ought to be executed in the controlled land.

(3) Where either—

(a) an [F19 arbitrator][F19 arbiter] determines under the last preceding subsection that any works ought to be executed in controlled land, or

(b) undertakers agree to the execution of any works in controlled land after notification to them of disapproval or modifications of a plan and section of the works as proposed to be executed in the [F20 street][F20 road] on the ground that they ought to be executed in controlled land,

those works shall, subject to the provisions of the next succeeding subsection, be excluded from the power of the undertakers to execute works in the [F20 street][F20 road], and a plan and section of those works as to be executed in the controlled land shall be settled in the proceedings before the [F19 arbitrator][F19 arbiter] who so determines, or, in a case in which the undertakers agree to the execution of the works in the controlled land, shall be settled as may be agreed between the undertakers and the [F20 street][F20 roads] authority and any sewer authority concerned, or, in default of agreement, by an [F19 arbitrator][F19 arbiter] acting on a reference of the matter to arbitration by the undertakers.

(4) In the circumstances mentioned in the last preceding subsection, if at the expiration of twenty-two days from the date on which the plan and section of the works as to be executed in the controlled land are settled any of the rights mentioned in subsection (1) of this section has, as respects any of the works to which the determination or agreement extends, not been rendered exercisable by the undertakers,—

(a) the exclusion from the power of the undertakers to execute works in the [F21 street][F21 road] provided for by the last preceding subsection shall thereupon cease as to all those works, and they may be executed in the [F21 street][F21 road] in accordance with the plan and section thereof settled under subsection (4) of the last preceding section, or, if the plan and section thereof originally submitted fell within paragraph (i) of the proviso to that subsection, in accordance with that plan and section (with any modifications thereof agreed by the undertakers);

(b) the [F22 street][F22 roads] authority shall pay to the undertakers the amount of any cost reasonably incurred by the undertakers of executing any of those works in the controlled land, at any time after the authority had purported to authorise the execution thereof in that land and before the failure to render the right or rights in question exercisable was ascertained, in so far as it is rendered abortive by the failure, and of any cost reasonably incurred by them of or in connection with removal of apparatus rendered necessary thereby; and

(c) any such removal or works in connection therewith may, notwithstanding anything in section three of this Act, be executed without submission or settlement of a plan and section therof.

(5) Where undertakers desire to execute in controlled land otherwise than in the circumstances mentioned in subsection (3) of this section works as to which the settlement of a plan and section is requisite by virtue of section three of this Act, the mode of settlement thereof shall be as mentioned in that subsection as to a case in which undertakers agree to the execution of works in controlled land.

Textual Amendments

F16 Words “road which is a public road or prospective public road, the roads” substituted (S.) for words “street which is a maintainable highway or is prospectively a maintainable highway, the street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(6)(a)(i)

F17 Words “road” and “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(6)(ii)

F18 Words “arbiter” and “roads” substituted (S.) respectively for words “arbitrator” and “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(6)(b)

F19 Word “arbiter” substituted (S.) for word “arbitrator” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(6)(c)(i)

F20 Words “road” and “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(6)(c)(ii)

F21 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(6)(d)(i)

F22 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(6)(d)(ii)

Modifications etc. (not altering text)

C4 S. 5 restricted by Pipe-lines Act 1962 (c. 58, SIF 102), s. 16(1)

6 Works not to be begun until after notice to authorities and managers concerned. E+W+S

(1) Subject to the provisions of subsections (4) and (5) of this section (as to certain surface works and as to emergency works), undertakers proposing to begin in a [F23 street][F23 road] the execution of any code-regulated works shall give to each of the authorities or managers concerned, and, if the [F23 street][F23 road] is [F24 prospectively a maintainable highway][F24 a prospective public road], to the [F23 street][F23 road] managers thereof also, a notice stating the undertakers intention to execute the works and the date on which and the place at which they intend to begin the execution thereof, and the undertakers shall not begin the execution of the works, except with the consent of each of the authorities, bodies and persons to whom the notice is required to be given, until there have elapsed from the date on which the notice was given to them, or to the last of them to be given it if more than one—

(a) in the case of any works not being such as are mentioned in the succeeding paragraph, seven days, or

(b) in the case of works relating only to a service pipe or service line or [F25 overhead telecommunication apparatus], three days.

A notice for the purposes of this subsection shall identify the works in question—

(i) in the case of a notice to an authority or managers concerned to whom a plan and section of the works have been submitted, by reference thereto; or

(ii) in any other case, by a statement of the general nature of the works.

(2) A notice for the purposes of the preceding subsection shall not be given in the case of works as to which the settlement of a plan and section is requisite by virtue of section three of this Act until after the plan and section have been settled under section four of this Act.

(3) If, after a notice for the purposes of subsection (1) of this section has been given to any authority, body or person, the execution of the works has not been substantially begun at the expiration of two months from the date on which it was given to them or him, or at the expiration of any extension of that period which they or he may allow, that notice to them or him shall be treated as invalid for those purposes and compliance with subsection (1) of this section shall be requisite as if that notice had not been given to them or him.

(4) Subsection (1) of this section shall not apply to works which fall within paragraph (a), (b) or (c) of subsection (2) of section three of this Act and which do not involve either breaking up or opening the [F26 street][F26 road] or any public sewer therein or tunnelling or boring under the [F26 street][F26 road]:

Provided that, as respects any such works which are to be executed at a crossing of a railway on the level, subsection (1) of this section shall apply so far as regards notice to the authority concerned who have the management of the railway undertaking.

(5) In the case of works to which subsection (1) of this section applies being emergency works—

(a) the undertakers may begin the execution thereof before the time when by virtue of the preceding provisions of this section they could lawfully begin them; but

(b) as soon as is reasonably practicable after so beginning any such works they shall give to each of the authorities, bodies or persons to whom a notice under subsection (1) of this section is required to be given a notice stating the reason for their having done so.

A notice for the purposes of this subsection shall identify the works in question—

(i) if notice for the purposes of subsection (1) of this section had been given before they were begun, by reference to that notice; or

(ii) if not, as mentioned in that subsection.

(6) If undertakers begin the execution of any works in contravention of subsection (1) of this section, or fail to give a notice in accordance with an obligation to which they are subject by virtue of paragraph (b) of subsection (5) thereof, they shall in respect of that contravention or failure be liable on summary conviction to a fine not exceeding [F27 level 3 on the standard scale].

Textual Amendments

F23 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(7)(a)(i)

F24 Words “a prospective public road” substituted (S.) for words “prospectively a maintainable highway” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(7)(a)(ii)

F25 Words substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 29(2), Sch. 5 para. 45

F26 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(7)(b)

F27 Words substituted (E.W.) (S.) by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) by Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G

7 Requirements as to mode of executing major works, and as to reinstatement. E+W+S

(1) Undertakers executing works to which section three of this Act applies—

(a) shall (except in the case of works of which no plan and section have been settled before the execution thereof) execute the works in accordance with the plan and section settled under section four or section five of this Act, as the case may be, or, if each of the authorities or managers concerned who were parties to the settlement thereof agree to any modification thereof, with the plan and section as so modified;

(b) shall execute to the reasonable satisfaction of each of the authorities or managers concerned items of the works which are of an incidental nature (as distinguished from the placing of apparatus or other principal operation in question); and

(c) shall afford to any transport authority concerned reasonable facilities for supervising the execution of the works.

(2) Undertakers executing any code-regulated works which involve breaking up or opening the [F28 street][F28 road] or controlled land, or tunnelling or boring under it, shall carry on and complete the works with all such dispatch as is reasonably practicable, and shall be under obligation to reinstate and make good the [F28 street][F28 road] or controlled land after the completion of the works, and—

(a) to begin the reinstatement and making good as soon after completion of any part of the works as is reasonably practicable without hindering the execution of other parts of those works or of other works to be undertaken immediately or shortly thereafter;

(b) to afford reasonable facilities to each of the authorities or managers concerned for supervising the execution of the reinstatement and making good, to execute it in accordance with any reasonable requirements of any such authority or managers made at such a time as to render compliance therewith reasonably practicable, and to execute it to the reasonable satisfaction of each such authority or managers; and

(c) in the case of works which involve breaking up or opening the [F28 street][F28 road] or controlled land (as distinguished from tunnelling or boring under it only), to reinstate it and make it good up to what was the surface level before the execution of the works, subject to the provisions of the Third Schedule to this Act in a case in which the [F29 street][F29 roads] authority or [F28 street][F28 road] managers elect thereunder to do the reinstatement and making good at upper levels:

Provided that this subsection shall not apply to reinstatement and making good of any sewer, drain or tunnel broken up or opened (as to which provision is made by sections twelve and thirteen of this Act).

If undertakers fail to carry out reinstatement and making good in accordance with an obligation to which they are subject by virtue of this subsection, they shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds in respect of each day of such failure.

(3) Undertakers executing any code-regulated works shall pay—

(a) to each of the authorities or managers concerned an amount equal to any cost reasonably incurred by them of supervision by them for which the undertakers are required by this section to afford facilities; and

(b) to any transport authority concerned an amount equal to any cost reasonably incurred by them of signalling or other measures for controlling traffic on their undertaking, or for securing the safety of persons employed in connection with the works, in so far as it is attributable to the execution of the works or the carrying out of reinstatement and making good thereafter.

(4) If any authority or managers concerned claim that undertakers have executed works, or reinstatement and making good, otherwise than in accordance with the provisions of this section as to execution thereof in accordance with a plan and section or as to execution thereof in accordance with reasonable requirements of such an authority or managers or to their reasonable satisfaction, the authority or managers may give notice to the undertakers stating that they so claim and requiring the undertakers to remedy the defect, and, if the undertakers agree, or it is determined by arbitration, that any works are needed for that purpose and that the claim was notified as early as was reasonably practicable, the undertakers shall be under obligation to execute them.

If undertakers fail to execute works in accordance with an obligation to which they are subject by virtue of an award on an arbitration under this subsection, they shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds in respect of each day of such failure.

(5) If undertakers fail to give an authority or managers concerned facilities for supervision which they are required under this section to give, the authority or managers may execute such works as may be needed for enabling them to inspect the works or reinstatement and making good executed by the undertakers, and the undertakers shall pay to the authority or managers an amount equal to the cost reasonably incurred by them of executing works so needed.

(6) Where a [F30 street][F30 road] or controlled land has been broken up or opened, or tunnelling or boring has been done thereunder, by way of code-regulated works, and the reinstatement and making good of the [F30 street][F30 road] or land in which the works were executed, or of part of it, has been completed, and within six months from the completion thereof the area reinstated and made good either subsides or deteriorates otherwise than by subsidence or in addition thereto, then—

(a) in the case of any such subsidence, the amount of any cost of executing works needed for remedying the subsidence reasonably incurred by the [F31 street][F31 roads] authority (if the [F30 street][F30 road] is, or is prospectively, a [F32 maintainable highway][F32 public road]) or by the [F30 street][F30 road] managers (if the [F30 street][F30 road] is not as aforesaid) shall be paid to the authority or managers by the undertakers, unless the reinstatement and making good at upper levels or some of it was done pursuant to an election under the Third Schedule to this Act and the subsidence is shown to have been attributable to defective workmanship or use of defective materials in the doing of the reinstatement and making good so far as it was done otherwise than by the undertakers, and

(b) in the case of any such deterioration, the amount of any cost of executing works needed for remedying the deterioration reasonably incurred as aforesaid shall be paid as aforesaid if the deterioration is shown to have been attributable to defective workmanship or use of defective materials in the doing of the reinstatement and making good so far as it was done by the undertakers:

Provided that an authority or managers shall not be entitled to a payment under this subsection in respect of the cost of any works unless before executing the works they had given to the undertakers notice of the works which they claimed to be needed and had allowed reasonable time for examination by the undertakers of the area in question.

Textual Amendments

F28 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(8)(a)

F29 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(8)(a)

F30 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(8)(b)(i)

F31 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(8)(b)(i)

F32 Words “public road” substituted (S.) for words “maintainable highway” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(8)(b)(ii)

8 Requirements as to safety, obstruction, etc., to be observed in execution of works. E+W+S

(1) Undertakers who are executing or have executed any code-regulated works shall secure at their expense that the following requirements are observed during and in connection with the execution of the works and of reinstatement and making good thereafter under the provisions of this Act in that behalf, that is to say—

(a) that, so long as the [F33 street][F33 road] or controlled land is open or broken up (except in a place to which the public have no right of access and are not permitted to have access), it is adequately fenced and guarded, and lighted in such manner as to give proper warning to the public during the hours of darkness for the purposes of [F34 the Road Transport Lighting Act, 1927];

(b) that traffic signs (within the meaning of section forty-eight of the M3 Road Traffic Act 1930) are placed and, where so directed, operated . . . F35 , in accordance with any directions in that behalf which may be given by the authority having power under that section to cause such signs to be placed, so however that any such directions shall be subject to any . . . F35 directions given by the Minister under . . . F35 the said section forty-eight, and may be cancelled or modified by the Minister if he is satisfied that they are not reasonably required for the guidance or direction of persons using the street;

(c) that no greater width or length of any [F33 street][F33 road] or controlled land than is reasonably necessary is open or broken up at any one time;

(d) that there is no greater obstruction of traffic on any [F33 street][F33 road] or interference with the normal use of controlled land than is reasonably necessary; and

(e) that any spoil or other material not required for the execution of the works or of the reinstatement and making good is carried away as soon as is reasonably practicable.

(2) Without prejudice to the generality of the requirement as to lighting imposed by paragraph (a) of the preceding subsection, it shall include a requirement to comply with any regulations made by the Minister in that behalf.

The power to make regulations for the purposes of this subsection shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) If undertakers fail to satisfy an obligation to which they are subject by virtue of subsection (1) of this section they shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds in respect of each day of such failure.

(4) If undertakers fail to satisfy an obligation to which they are subject by virtue of subsection (1) of this section as regards any requirement mentioned in paragraph (a), (b) or (e) thereof, the [F36 street][F36 roads] authority or managers may do anything needed for securing observance of that requirement and the undertakers shall pay to the authority or managers an amount equal to any cost reasonably incurred by them of so doing.

(5) Subsection (1) of this section shall have effect subject to the provisions of paragraph (b) of subsection (5) of section ten of this Act, and of paragraph 6 of the Third Schedule thereto, as to cases in which works or reinstatement and making good are executed by a transport authority or a [F37 street][F37 roads] authority or [F38 street][F38 road] managers.

Textual Amendments

F33 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(9)(a)

F34 The words “section 68 of the Road Traffic Act 1972” were substituted by virtue of the Road Traffic Act 1972 (c. 20, SIF 107:1), Sch. 10 para. 3 and Road Traffic Act 1974 (c. 50, SIF 107:1), s. 9(4)(b); those enactments have been repealed by Road Traffic (Consequential Provisions) Act 1988 (c. 54, SIF 107:1), s. 3, Sch. 1 Pt. I; the original words were “the Road Transport Lighting Act, 1927” and the Interpretation Act 1978 (c. 30), s. 17(2)(a) applies to their construction accordingly.

F35 Words repealed by Road Traffic Act 1956 (c. 67), Sch. 9

F36 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(9)(b)

F37 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(9)(c)

F38 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(9)(c)

Marginal Citations

M3 1930 c. 43(108).

9 Protection for street managers of a street which is prospectively a maintainable highway. E+W+S

Where code-regulated works are executed in a [F39 street][F39 road] which is [F40 prospectively a maintainable highway][F40 a prospective public road], the [F41 street][F41 roads] authority shall be under obligation to the [F39 street][F39 road] managers—

(a) generally, in relation to the execution of the works and reinstatement and making good thereafter, to secure the performance by the undertakers of duties imposed on them by virtue of the two last preceding sections and the Third Schedule to this Act, and to exercise the powers vested in the authority by virtue thereof, in such manner as may be reasonably requisite for the protection of the [F39 street][F39 road] managers; and

(b) in particular, to comply with any reasonable request as to securing the performance of those duties, or as to the exercise of those powers, which may be made by the [F39 street][F39 road] managers to the authority.

Textual Amendments

F39 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(10)(a)

F40 Words “a prospective public road” substituted (S.) for words “prospectively a maintainable highway” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(10)(b)

F41 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(10)(a)

10 Protection for transport authorities (right to execute works and to be paid cost thereof). E+W+S

(1) Where works to which section three of this Act applies, other than emergency works, are to be executed in a [F42 street][F42 road] which is carried by or goes under a bridge vested in a transport authority, or in a [F42 street][F42 road] which crosses or is crossed by any other property which is held or used for the purposes of a transport undertaking, and the works involve breaking up or opening the [F42 street][F42 road] or tunnelling or boring under it, the transport authority may by notice given to the undertakers within the time mentioned in this subsection elect themselves to execute all or any of the following in so far as they are to be executed in that [F42 street][F42 road], that is to say—

(a) the breaking up, opening, tunnelling or boring;

(b) any other items of the works which are of an incidental nature (as distinguished from the placing of apparatus or other principal operation in question); and

(c) reinstatement and making good (but excluding any such reinstatement and making good as the [F43 street][F43 roads] authority or [F42 street][F42 road] managers are entitled to elect to do, without the consent of the undertakers, under the Third Schedule to this Act, unless the transport authority are themselves the [F43 street][F43 roads] authority or the [F42 street][F42 road] managers entitled so to elect, or the [F43 street][F43 roads] authority of the [F42 street][F42 road] managers entitled so to elect consent to the election of the transport authority under this subsection);

and, where notice of such an election is duly given, the undertakers shall not execute any of the works or reinstatement and making good specified therein, but the transport authority shall execute such works or reinstatement and making good, and the undertakers shall pay to the authority an amount equal to the cost reasonably incurred by the authority of the execution thereof:

Provided that the matters to which this subsection is to apply by virtue of such a notice may be varied by agreement between the transport authority and the undertakers.

A notice of such an election must be given not later than—

(i) in a case in which the plan and section of the works are settled without recourse to arbitration, the expiration of twenty-nine days (or, if the works relate only to a service pipe or service line or [F44 overhead telecommunication apparatus], eight days) from the date on which the plan and section were submitted to the transport authority, or

(ii) in a case in which the plan and section are settled by arbitration, the expiration of fifteen days from the date of the award.

(2) If it appears to a transport authority to whom a plan and section of works to which section three of this Act applies in such a [F45 street][F45 road] as is mentioned in subsection (1) of this section are submitted under subsection (1) of the said section three, or are furnished under subsection (3) thereof, that the undertakers’ works render any other works necessary either—

(a) for preserving the stability of a bridge vested in the authority for the purposes of such a weight as it is then capable of carrying, or

(b) otherwise for securing that the state or circumstances of property held or used for the purposes of their undertaking shall not become other than is requisite having regard to the purposes for which it is intended or used,

whether consisting only of works to be executed on the occasion of the execution of the undertakers’ works or comprising both works to be executed then and subsequent works of maintenance, and—

(i) the authority give to the undertakers, within twenty-nine days from the date on which the plan and section were submitted or furnished to the authority, a notice specifying works which they claim to be so rendered necessary, or, if the plan and section fall to be settled by arbitration, claim in the proceedings for the settlement thereof that any works are so rendered necessary, and

(ii) the undertakers agree, or it is determined by arbitration, that any works are so rendered necessary,

the undertakers shall pay to the authority an amount equal to the cost reasonably incurred by the authority of executing those works or any of them.

Where it has been agreed or determined that works are rendered necessary as aforesaid by works of the undertakers not yet executed, the undertakers shall not execute any of their works so as to interfere with the execution of the works so agree or determined, and the transport authority shall execute the works so agreed or determined (so far as they are to be executed on the occasion of the execution of the undertakers’ works) as soon as is reasonably practicable after the agreement or determination has been made.

(3) If undertakers execute any works or reinstatement and making good in contravention of either of the two preceding subsections, the transport authority may, in so far as the nature of what has been done permits and is such as to render such action necessary, undo what has been done and do again any of it that consists of such things as are mentioned in paragraphs (a) to (c) of subsection (1) of this section, and the undertakers shall pay to the authority an amount equal to the cost reasonably incurred by them of so doing.

(4) If a transport authority fail to execute works or reinstatement and making good in accordance with an obligation to which they are subject by virtue of subsection (1) or (2) of this section, they shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds in respect of each day of such failure.

(5) Where a transport authority execute works or reinstatement and making good pursuant to an election under subsection (1) of this section, or under subsection (3) of this section, they shall be subject to all obligations and liabilities imposed by sections seven and eight of this Act, sections twelve and thirteen thereof, and section twenty-six thereof to which the undertakers would have been subject if the works or reinstatement and making good had been executed by them, and any cost reasonably incurred by the authority of doing things necessary for the discharge of any of those obligations and liabilities shall be treated for the purposes of subsection (1) or (3) of this section as part of the cost of the works or reinstatement and making good in question except in the case of a liability arising by reason of a default on the part of the authority:

Provided that—

(a) subsection (2) of section seven (as to the obligation of undertakers to reinstate and make good) shall not apply to the authority unless they have elected to reinstate and make good, and in that case paragraph (c) of that subsection shall not apply unless the election extends to reinstatement and making good at upper levels;

(b) paragraph (a) of subsection (1) of section eight (as to fencing, guarding and lighting) and paragraph (b) of that subsection (as to traffic signs) shall apply to the authority only where they do the initial breaking up or opening of a [F46 street][F46 road], and in that case shall cease to apply to them as soon as the undertakers begin any of the works which they are to do, and paragraphs (c) to (e) of that subsection (as to obstruction and like matters) shall apply to the authority, to the exclusion of the undertakers’ obligation thereunder, during and in connection with what the authority do but to no further extent; and

(c) the authority shall not be subject to the liability imposed by subsection (6) of section twenty-six to pay compensation in respect of damage caused by the execution of works lawfully, and the undertakers shall be subject to that liability notwithstanding that the works are executed by the authority.

Textual Amendments

F42 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(11)(a)

F43 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(11)(a)

F44 Words substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 29(2), Sch. 5 para. 45

F45 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(11)(b)

F46 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(11)(c)

11 Protection for transport authorities (special precautions in execution of certain works). E+W+S

(1) Undertakers executing any code-regulated works in a [F47 street][F47 road] which crosses or is crossed by, or is in the vicinity of, a railway, dock, harbour, pier, canal or inland navigation, shall comply with any reasonable requirements made to them by the authority having the management thereof for providing against the displaying of lights so as to involve risk of their being mistaken for any signal light or other light used for controlling, directing or securing the safety of traffic thereon or being a hindrance to the ready interpretation of any such signal or other light.

(2) Undertakers executing any code-regulated works at a crossing of a railway on the level shall comply with any reasonable requirements as to the arrangements for executing the works, in respect of hours of work or in any other respect, which are made to them by the authority having the management of the railway undertaking for securing the safety of persons employed in connection with the works or for securing that interference with traffic on the railway caused by the execution thereof is reduced so far as is practicable; and, in the case of any such works of which seven or three days’ notice to the authority is required under section six of this Act but submission to them of a plan and section is not required, the undertakers shall defer beginning them for such further period as the authority may reasonably request as needed for formulating their requirements or making their traffic arrangements.

(3) If undertakers fail to satisfy an obligation to which they are subject by virtue of either of the preceding subsections, they shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [F48 level 3 on the standard scale].

Textual Amendments

F47 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(12)

F48 Words substituted (E.W.) (S.) by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) by Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G

12 Protection for sewer authorities. E+W+S

(1) If it appears to a sewer authority concerned to whom a plan and section of works in a [F49 street][F49 road] are submitted under subsection (1) of section three of this Act, or are furnished under subsection (3) thereof, or who are parties to the settlement of a plan and section of works in controlled land, that the undertakers’ works render any other works necessary for making proper provision for drainage for which [F50 a public sewer of the authority][F50 the sewer vested in the authority] is then used, and—

(a) in the case of works in a [F49 street][F49 road] the authority give to the undertakers, within twenty-nine days from the date on which the plan and section were submitted or furnished to them, a notice specifying works which they claim to be so rendered necessary, or, in the case of works in a [F49 street][F49 road] the plan and section whereof fall to be settled by arbitration or of works in controlled land, claim in the proceedings for the settlement of the plan and section that any works are so rendered necessary, and

(b) the undertakers agree, or it is determined by arbitration, that any works are so rendered necessary,

the undertakers shall execute those works at such time and in such manner in relation to their works as may be needed for securing the purposes of the works so rendered necessary, and in respect of any failure so to do they shall be liable on summary conviction to a fine not exceeding [F51 level 3 on the standard scale]:

Provided that this subsection shall be subject to the provisions of subsection (4) of this section (as to election by the sewer authority to execute works themselves).

(2) Undertakers executing any code-regulated works which include breaking up or opening a [F52 public sewer][F52 sewer vested in a local authority], or any works rendered necessary as mentioned in the preceding subsection, shall afford to the [F53 sewer] authority reasonable facilities for supervising the execution of the breaking up or opening, or of the works so rendered necessary, as the case may be.

(3) Undertakers executing any code-regulated works which include breaking up or opening a [F54 public sewer][F54 sewer vested in a local authority] shall be under obligation to reinstate it and make it good:

Provided that this subsection shall be subject to the provisions of subsection (4) of this section (as to election by the sewer authority to execute works themselves).

If undertakers fail to carry out reinstatement and making good in accordance with an obligation to which they are subject by virtue of this subsection, the sewer authority may themselves carry it out.

(4) Where code-regulated works include the breaking up or opening of a [F55 public sewer, the sewer][F55 sewer vested in a local authority, the] authority may, by notice given to the undertakers as mentioned in this subsection, elect themselves to execute all or any of the following, that is to say—

(a) the breaking up or opening of the sewer,

(b) reinstatement and making good thereof, and

(c) works rendered necessary as mentioned in subsection (1) of this section,

and, where notice of such an election is duly given, the undertakers shall not execute any of the works or reinstatement and making good specified therein, but the sewer authority shall execute them or it:

Provided that the matters to which this subsection is to apply by virtue of such a notice may be varied by agreement between the sewer authority and the undertakers.

A notice of such an election shall be deemed to have been duly given as to works of a kind mentioned in paragraph (a), (b) or (c) of this subsection if the sewer authority had given notice to the undertakers of their desire that the provisions of this subsection should have effect in the case of all works of that kind to be executed in relation to any [F56 public sewer of theirs][F56 sewer vested in the authority], but in any other case a notice of such an election must be given—

(i) as regards breaking up or opening, or reinstatement and making good, in a case in which the plan and section of the undertakers’ works are settled without recourse to arbitration, not later than twenty-nine days from the date on which the plan and section were submitted to the authority;

(ii) as regards breaking up or opening, or reinstatement and taking good, in a case in which the plan and section are settled by arbitration, not later than the expiration of fifteen days from the date of the award;

(iii) as regards works rendered necessary as mentioned in subsection (1) of this section, at the time of the sewer authority’s claiming them to be so rendered necessary by the notice or in the proceedings mentioned in that subsection.

(5) The undertakers shall pay to the sewer authority an amount equal to the cost reasonably incurred by the authority of supervision by them for which the undertakers are required by subsection (2) of this section to afford facilities, or of carrying out reinstatement and making good under subsection (3) thereof, or of executing any works or carrying out any reinstatement and making good pursuant to an election under subsection (4) thereof.

Textual Amendments

F49 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(13)(a)(i)

F50 Words “the sewer vested in the authority” substituted (S.) for words “a public sewer of the authority” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(13)(d)(ii)

F51 Words substituted (E.W.) (S.) by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) by Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G

F52 Words “sewer vested in a local authority” substituted (S.) for words “public sewer” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(13)(b)(i)

F53 Word “sewer” repealed (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(13)(b)(ii), s. 156, Schs. 10, 11

F54 Words “sewer vested in a local authority” substituted (S.) for words “public sewer” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(13)(c)

F55 Words “sewer vested in a local authority, the” substituted (S.) for words “public sewer, the sewer” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(13)(d)(i)

F56 Words “sewer vested in the authority” substituted (S.) for words “public sewer of theirs” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(13)(d)(ii)

13 Protection for managers of sewers, drains or tunnels not being public sewers. E+W+S

(1) Undertakers executing any code-regulated works which include breaking up or opening a sewer, drain or tunnel not being a [F57 public sewer][F57 sewer vested in a local authority] shall be under obligation to reinstate it and make it good.

If undertakers fail to carry out reinstatement and making good in accordance with an obligation to which they are subject by virtue of this subsection, the authority, body or person having the control or management of the sewer, drain or tunnel may themselves carry it out, and the undertakers shall pay to them or him an amount equal to the cost reasonably incurred by them or him of carrying it out.

(2) The provisions of section twenty-six of this Act as to obligations of undertakers executing works in a [F58 street][F58 road] or in controlled land in relation to apparatus of other undertakers (therein referred to as owning undertakers) shall have effect in relation to sewers, drains and tunnels not being [F58 public sewers][F58 sewers vested in local authorities] and to authorities, bodies and persons having the management or control thereof, as those provisions have effect in relation to apparatus of owning undertakers and to those undertakers.

Textual Amendments

F57 Words “sewer vested in a local authority” substituted (S.) for words “public sewer” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(14)(a)

F58 Words “roads” and “sewers vested in local authorities” substituted (S.) respectively for words “street” and “public sewers” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(14)(b)

14 Provision as to default in removing apparatus placed temporarily. E+W+S

Where there is placed in a [F59 street other than a maintainable highway][F59 road other than a public road] apparatus required only in connection with the doing of building or other work on land adjacent to the [F60 street][F60 road] and the placing thereof is a code-regulated work, if the apparatus is not removed on completion of the building or other work in question, the [F61 street][F61 roads] authority or [F60 street][F60 road] managers may give the undertakers notice requiring them to remove it, and if it is not removed within eight days from the giving of such a notice, the authority or managers may remove it and the undertakers shall pay to the authority or managers an amount equal to the cost reasonably incurred by them of its removal and disposal and of reinstating and making good the [F60 street][F60 road] after its removal.

Textual Amendments

F59 Words “road other than a public road” substituted (S.) for words “street other than a maintainable highway” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(15)(a)

F60 Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(15)(b)

F61 Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(15)(b)