Highways Act 1980

Precautions to be taken in doing certain works in or near streets or highways E+W

168 Building operations affecting public safety. E+W

(1) If in the course of the carrying out of any building operation in or near a street there occurs an accident which—

(a) gives rise to the risk of serious bodily injury to a person in the street, whether or not the death or disablement of any person is caused thereby; or

(b) would have given rise to such risk but for the fact that a local authority or highway authority had in the exercise of their powers under [F1 section 78 of the Building Act 1984] (emergency measures to deal with dangerous buildings) or any other enactment taken steps to ensure that if an accident occurred it would not give rise to such risk,

then, subject to the provisions of this section, the owner of the land or building on which the building operation is being carried out is, without prejudice to any liability to which he or any other person may be subject apart from this section, guilty of an offence and liable to a fine not exceeding [F2 level 5 on the standard scale].

(2) Where the commission by any person of an offence under this section is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

(3) In any proceedings for an offence under this section it is a defence, subject to subsection (4) below, for the person charged to prove—

(a) that he took all reasonable precautions to secure that the building operation was so carried out as to avoid causing danger to persons in a street; or

(b) that the commission of the offence was due to the act or default of another person and that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

(4) A person charged with an offence under this section is not, without leave of the court, entitled to rely on the defence provided by subsection (3)(b) above unless, within a period ending 7 clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

(5) In this section “building operation” means the construction, structural alteration, repair or maintenance of a building (including re-pointing, external re-decoration and external cleaning), the demolition of a building, the preparation for, and laying the foundations of, an intended building and the erection or dismantling of cranes or scaffolding.

Textual Amendments

F1 Words substituted by Building Act 1984 (c. 55, SIF 15), s. 133(1), Sch. 6 para. 20

F2 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46

169 Control of scaffolding on highways. E+W

(1) Subject to subsection (6) below no person shall, in connection with any building or demolition work or the alteration, repair, maintenance or cleaning of any building, erect or retain on or over a highway any scaffolding or other structure which obstructs the highway (hereafter in this section referred to as a “relevant structure”) unless he is authorised to do so by a licence in writing issued for the purposes of this section by the highway authority (hereafter in this section referred to as “a licence”) and complies with the terms of the licence; and a licence may contain such terms as the authority issuing it thinks fit.

(2) If a person applies to a highway authority for a licence in respect of any relevant structure and furnishes the authority with such particulars in connection with the structure as the authority reasonably demand, it is the duty of the authority to issue a licence to him in respect of the structure unless the authority consider—

(a) that the structure would cause unreasonable obstruction of a highway; or

(b) that a relevant structure erected otherwise than as proposed by the applicant would cause less obstruction of a highway than the structure proposed by him and could conveniently be used for the work in question.

(3) If on an application for a licence in connection with a highway the highway authority refuse to issue a licence or issue a licence containing terms to which the applicant objects, the applicant may appeal to a magistrates’ court against the refusal or terms; and on such an appeal the court may—

(a) in the case of an appeal against a refusal, direct the highway authority to issue a licence in pursuance of the application;

(b) in the case of an appeal against the terms of the licence, alter the terms.

(4) Subject to subsection (6) below, it is the duty of a person to whom a licence is issued by a highway authority in respect of a relevant structure—

(a) to ensure that the structure is adequately lit at all times between half an hour after sunset and half an hour before sunrise;

(b) to comply with any directions given to him in writing by the authority with respect to the erection and maintenance of traffic signs in connection with the structure; and

(c) to do such things in connection with the structure as any statutory undertakers reasonably request him to do for the purpose of protecting or giving access to any apparatus belonging to or used or maintained by the undertakers.

In this subsection and in section 171(2) below “statutory undertakers” means any of the following, namely, any body who are statutory undertakers within the meaning provided by section 329(1) below, the Post Office,. . . F3 . . . F4 [F5 any licensee under a street works licence][F6 and the operator of a telecommunications code system][F7 or a driver information system].

(5) A person who contravenes the provisions of subsection (1) above otherwise than by failing to comply with the terms of a licence or who fails without reasonable excuse to comply with the terms of a licence or to perform a duty imposed on him by subsection (4) above, is guilty of an offence and liable to a fine not exceeding [F8 level 5 on the standard scale].

(6) Nothing in the preceding provisions of this section applies to a relevant structure erected before 14th February 1977 or erected or retained by the British Railways Board, the British Waterways Board or [F9 London Regional Transport or any subsidiary of theirs (within the meaning of the London Regional Transport Act 1984)] in the exercise of powers conferred on the body in question by any enactment; and nothing in paragraph (a) or (b) of subsection (4) above applies to a relevant structure if no part of it is less than 18 inches in a horizontal direction from a carriageway of the relevant highway and no part of it over a footway of the relevant highway is less than 8 feet in a vertical direction above the footway.

(7) No civil or criminal proceedings lie in respect of any obstruction of a highway which is caused by a relevant structure if the structure is on or over the highway in accordance with a licence and the person to whom the licence is issued performs the duties imposed on him in respect of the structure by subsection (4) above; and a highway authority by whom a licence is issued do not incur any liability by reason of the issue of the licence.

Textual Amendments

F3 Words repealed by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 41(1), 57(6), 58, Sch. 27 Pt. I

F4 Word repealed by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 7 Pt. I

F5 Words in s. 169(4) substituted (1.1.1993) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 168(1), Sch. 8 Part I para.4(with s. 25(2)); S.I. 1992/2984, art. 2(2), Sch.2.

F6 Words inserted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 76(8), Sch. 5 para. 45

F7 Words inserted by Road Traffic (Driver Licensing and Information Systems) Act 1989 (c. 22, SIF 107:1), s. 13(1), Sch. 4 para. 3(7)

F8 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46

F9 Words substituted by London Regional Transport Act 1984 (c. 32, SIF 126), s. 71(3)(a), Sch. 6 para. 19

Modifications etc. (not altering text)

C1 S. 169: functions of local authority not to be responsibility of an executive of the authority (E.) (16.11.2000) by virtue of S.I. 2000/2853, reg. 2(1), Sch. 1

C2 S. 169(1) excluded (18.12.1996) by 1996 c. 61, s. 38, Sch. 10 para. 5(1)(b).

C3 S. 169(4): by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 3(1), Sch. 5 para. 45 it is provided that references to British Telecommunications in s. 169(4) cease to have effect

170 Control of mixing of mortar etc. on highways. E+W

(1) Subject to subsection (2) below, a person who mixes or deposits on a highway any mortar or cement or any other substance which is likely to stick to the surface of the highway or which, if it enters drains or sewers connected with the highway, is likely to solidify in the drains or sewers is guilty of an offence and liable to a fine not exceeding [F10 level 4 on the standard scale].

(2) Nothing in subsection (1) above applies to any mixing or deposit—

(a) in a receptacle or on a plate which prevents the substance in question from coming into contact with the highway and from entering any drains and sewers connected with the highway;

(b) by the highway authority or a local authority in connection with the maintenance or alteration of the highway or a bridge over which or a tunnel through which the highway passes;

(c) by a body having a duty under an enactment to maintain—

(i) a bridge over which or a tunnel through which the highway passes, or

(ii) works or materials supporting or protecting the highway where it forms part of the approaches to such a bridge or tunnel,

if the mixing or deposit is in connection with the maintenance or alteration of the bridge, tunnel, works or materials;

(d) by statutory undertakers in connection with apparatus in or the placing of apparatus in the highway;

(e) by [F11 any licensee under a street works licence] if the mixing or deposit cannot reasonably be done elsewhere than on the highway.

(3) In subsection (2) above—

• “local authority” means any of the following, namely, the council of a county, district or London borough,. . . F12 the Common Council and the Council of the Isles of Scilly; and

• “statutory undertakers” means any of the following, namely, any body who are statutory undertakers within the meaning provided by section 329(1) below, the Post Office. . . F13 . . . F14 [F15 and the operator of a telecommunications code system][F16 or a driver information system].

Textual Amendments

F10 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46

F11 Words in s. 170(2)(e) substituted (1.1.1993) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 168(1), Sch. 8 Part I para.5 (with s. 25(2)); S.I. 1992/2984, art. 2(2), Sch.2

F12 Words repealed by Local Government Act 1985 (c. 51, SIF 81:1), s. 102, Sch. 17

F13 Word repealed by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 7 Pt. I

F14 Words repealed by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 10(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 41(1), 57(6), 58, Sch. 27 Pt. I

F15 Words inserted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 76(9), Sch. 5 para. 45

F16 Words inserted by Road Traffic (Driver Licensing and Information Systems) Act 1989 (c. 22, SIF 107:1), s. 13(1), Sch. 4 para. 3(8)

Modifications etc. (not altering text)

C4 S. 170(3): by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 3(1), Sch. 5 para. 45 it is provided that references to British Telecommunications in s. 170(3) cease to have effect

171 Control of deposit of building materials and making of excavations in streets. E+W

(1) A person may, with the consent of the highway authority for a street that is a highway maintainable at the public expense, temporarily deposit building materials, rubbish or other things in the street or make a temporary excavation in it.

(2) A highway authority may give their consent under subsection (1) above subject to such conditions as they think fit including in particular, without prejudice to the generality of the foregoing, conditions for preventing damage or ensuring access to apparatus of statutory undertakers.

In this subsection “statutory undertakers” has the meaning provided by section 169(4) above.

(3) A person aggrieved by the refusal of consent under subsection (1) above, and a person to whom such a consent is given subject to conditions, may appeal to a magistrates’ court against the refusal or, as the case may be, the conditions.

(4) It is the duty of a person who makes such a deposit or excavation as is mentioned in subsection (1) above to comply with any directions given to him in writing by the highway authority with respect to the erection and maintenance of traffic signs in connection with the deposit or excavation.

(5) Where a person places any building materials, rubbish or other thing in, or makes an excavation in, a street he shall—

(a) cause the obstruction or excavation to be properly fenced and during the hours of darkness to be properly lighted, and

(b) if required so to do by the highway authority for the street or, in the case of a street that is not a highway, by the local authority in whose area the street is situated, remove the obstruction or, as the case may be, fill in the excavation;

and in any case he shall not allow the obstruction or excavation to remain in the street longer than is necessary.

(6) A person who—

(a) without reasonable excuse contravenes any condition subject to which a consent is given to him under subsection (1) above, or

(b) without reasonable excuse fails to perform the duty imposed on him by subsection (4) above, or

(c) fails to perform a duty imposed on him by subsection (5) above,

is guilty of an offence and liable to a fine not exceeding £10 in respect of each day on which the contravention or failure occurs.

The liability of any person to a fine under this subsection by virtue of paragraph (b) or (c) above is without prejudice to any other liability to which he may be subject apart from this subsection.

(7) Where an offence under this section by virtue of subsection (6)(c) above is committed in a street, the highway authority for the street or, in the case of a street that is not a highway, the local authority in whose area the street is situated, may remove the obstruction or, as the case may be, fill in the excavation and recover the expenses reasonably incurred by them in so doing from the person convicted of the offence.

Modifications etc. (not altering text)

C5 S. 171: functions of local authority not to be responsibility of an executive of the authority (E.) (16.11.2000) by virtue of S.I. 2000/2853, reg. 2(1), Sch. 1

[F17 171A Works under s. 169 or s. 171: charge for occupation of the highway. E+W

(1) The Minister may make provision by regulations requiring a person carrying out any of the following works in a highway maintainable at the public expense—

(a) erecting or retaining a relevant structure within the meaning of section 169(1) above, or

(b) depositing building materials, rubbish or other things, or making a temporary excavation, as mentioned in section 171(1) above,

to pay a charge to the highway authority if the duration of the works exceeds such period as may be prescribed and the works are not completed within a reasonable period.

(2) For this purpose “a reasonable period” means such period as is agreed by the authority and the person executing the works to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable in the circumstances.

In default of agreement, the authority’s view as to what is a reasonable period shall be acted upon pending the decision of the arbitrator.

(3) The regulations may provide that if a person applying to the highway authority for a licence under section 169 or consent under section 171 submits together with his application an estimate of the likely duration of the works, the period stated in the estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.

(4) The regulations may also provide that if it appears to the person carrying out the works that by reason of matters not previously foreseen or reasonably foreseeable the duration of the works—

(a) is likely to exceed the prescribed period,

(b) is likely to exceed the period stated in his previous estimate, or

(c) is likely to exceed the period previously agreed or determined to be a reasonable period,

he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.

(5) The amount of the charge shall be determined in such manner as may be prescribed by reference to the time taken to complete the works and the extent to which the surface of the highway is affected by the works.

Different rates of charge may be prescribed according to the description of works, the place and time at which they are executed and such other factors as appear to the Minister to be relevant.

(6) The regulations may make provision as to the time and manner of making payment of any charge.

(7) The regulations shall provide that a highway authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.

(8) In this section “prescribed” means prescribed by the Minister by regulations.]

Textual Amendments

F17 S. 171A inserted (1.1.1993) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 168(1), Sch. 8, Part I, para.6 (with s. 25(5)); S.I. 1992/2984, art. 2(2), Sch. 2

Prospective

[F18 171B Scaffolding, building materials and excavations: charge determined by reference to duration of occupation of highway E+W

(1) The Secretary of State may make provision by regulations requiring a person who—

(a) erects a relevant structure on or over a highway maintainable at the public expense,

(b) deposits building materials, rubbish or other things in such a highway, or

(c) makes a temporary excavation in such a highway,

to pay a charge to the highway authority.

(2) The reference in subsection (1)(a) to the erection of a relevant structure is a reference to the erection, in connection with any building or demolition work or the alteration, repair, maintenance or cleaning of any building, of any scaffolding or other structure that obstructs the highway.

(3) The charge shall be determined in the prescribed manner, by reference to the period (in this section, the “relevant period”) for which—

(a) a relevant structure is on or over the highway,

(b) things are deposited in the highway, or (as the case may be)

(c) there is an excavation in the highway.

(4) The regulations shall not require charges to be paid to a local highway authority unless the Secretary of State has, by order, approved the authority for the purposes of the regulations.

(5) The regulations may require disputes of any prescribed description to be referred to an arbitrator appointed in accordance with the regulations.

(6) Subsections (6) and (10) to (22) of section 171A apply in relation to regulations under subsection (1) of this section as they apply in relation to regulations under subsection (1) of that section.]

Textual Amendments

F18 S. 171B inserted (prosp.) by Traffic Management Act 2004 (c. 18), ss. 69, 99 (with s. 38)

Prospective

[F19 171C Regulations under sections 171A and 171B E+W

Nothing shall be taken to prevent the imposition of charges by both regulations under section 171A and regulations under section 171B in respect of the same structure, things or excavation at the same time.]

Textual Amendments

F19 S. 171C inserted (prosp.) by Traffic Management Act 2004 (c. 18), ss. 70(3), 99 (with s. 38)

172 Hoardings to be set up during building etc. E+W

(1) Subject to subsection (2) below, a person proposing to erect or take down a building in a street or court, or to alter or repair the outside of a building in a street or court, shall, before beginning the work, erect a close boarded hoarding or fence to the satisfaction of the appropriate authority so as to separate the building from the street or court.

For the purposes of this section the appropriate authority, in relation to any street or court, is the council of the county [F20 , metropolitan district] or London borough in which it is situated or, if it is situated in the City, the Common Council.

(2) The obligation to erect a hoarding or fence imposed by subsection (1) above may be dispensed with if the appropriate authority so consent.

(3) Where a person has erected a hoarding or fence in compliance with subsection (1) above, he shall—

(a) if the appropriate authority so require, make a convenient covered platform and handrail to serve as a footway for pedestrians outside the hoarding or fence;

(b) maintain the hoarding or fence and any such platform and handrail in good condition to the satisfaction of the authority during such time as the authority may require;

(c) if the authority so require, sufficiently light the hoarding or fence and any such platform and handrail during the hours of darkness; and

(d) remove the hoarding or fence and any such platform and handrail when required by the authority.

(4) A person aggrieved by the refusal of a consent under subsection (2) above or by a requirement under subsection (3) above may appeal to a magistrates’ court.

(5) Subject to any order made on appeal, if a person contravenes this section he is guilty of an offence and liable to a fine not exceeding [F21 level 3 on the standard scale]; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding £2 for each day on which the offence is so continued.

Textual Amendments

F20 Words inserted by Local Government Act 1985 (c. 51, SIF 81:1) s. 8, Sch. 4 para. 7

F21 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46

Modifications etc. (not altering text)

C6 S. 172 applied (27.7.1993) by 1993 c. xv, s. 38(13)

S. 172 applied (21.7.1994) by 1994 c. xv, s. 39(12).

C7 S. 172: functions of local authority not to be responsibility of an executive of the authority (E.) (16.11.2000) by virtue of S.I. 2000/2853, reg. 2(1), Sch. 1

173 Hoardings to be securely erected. E+W

(1) No person shall use for any purpose a hoarding or similar structure that is in, or adjoins, any street unless it is securely fixed to the satisfaction of the council who, in relation to that street, are the appropriate authority for the purposes of section 172 above.

(2) If a person contravenes this section he is guilty of an offence and liable to a fine not exceeding [F22 level 1 on the standard scale]; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding £1 for each day on which the offence is so continued.

Textual Amendments

F22 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 46

Modifications etc. (not altering text)

C8 S. 173 applied (27.7.1993) by 1993 c. xv, s. 38(13)

S. 173 applied (21.7.1994) by 1994 c. xv, s. 39(12).

174 Precautions to be taken by persons executing works in streets. E+W

(1) [F23 Where a person is executing works of any description in a street (other than street works within the meaning of Part III of the New Roads and Street Works Act 1991), he]—

(a) shall erect such barriers and traffic signs for preventing danger to traffic, for regulating traffic, and for warning traffic of danger, as may be necessary and remove them as soon as they cease to be needed for any of those purposes;

(b) shall cause the works to be properly guarded and lighted during the hours of darkness; and

(c) where the nature of the works so requires, shall cause any building adjoining the street to be shored up or otherwise protected.

(2) Subject to subsection (3) below, if any person fails to satisfy an obligation to which he is subject by virtue of subsection (1) above he is guilty of an offence and, without prejudice to any other liability to which he may be subject apart from this subsection, is liable to a fine not exceeding £10 in respect of each day of such failure.

(3) Where a person is subject to the same obligation by virtue of subsection (1) above and by virtue of some other enactment, then, without prejudice to section 18 of the M1 Interpretation Act 1978 (offences under two or more laws), if a failure by him to satisfy that obligation is an offence under an enactment other than subsection (2) above, subsection (2) above does not apply in relation to a failure by him to satisfy that obligation.

(4) If a person, without lawful authority or excuse,—

(a) takes down, alters or removes any barrier, traffic sign, support or light erected or placed in pursuance of subsection (1) above or any fence, barrier, traffic sign or light erected or placed on or near a street in pursuance of any other enactment for the purpose of warning users of the street of any obstruction, whether caused by the execution of works in or near the street or otherwise, or of protecting them from danger arising out of such an obstruction, or

(b) extinguishes any light so placed,

he is guilty of an offence and liable to a fine not exceeding [F24 level 3 on the standard scale].

(5) For the purposes of section 312 below in its application to an offence under this section statutory undertakers and the Post Office are each to be deemed to be a person aggrieved.

Textual Amendments

F23 Words in s. 174(1) substituted (1.1.1993) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 168(1), Sch. 8 Part I para.7 (with s. 25(2)); S.I. 1992/2984, art. 2(2), Sch. 2

F24 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46

Marginal Citations

M1 1978 c. 30.

175 Liability of certain persons in respect of materials left on highway. E+W

If—

(a) any officer or servant of the highway authority for a highway, or

(b) any officer or servant of a [F25 non-metropolitan] district council maintaining a highway by virtue of section 42 or 50 above, or

(c) a person liable to maintain a highway by reason of tenure, enclosure or prescription,

causes any heap of materials or any other object to be laid on the highway, he is, if he allows it to remain there at night to the danger of traffic without taking all reasonable precautions for the prevention of accidents, guilty of an offence and liable to a fine not exceeding [F26 level 1 on the standard scale].

Textual Amendments

F25 Word inserted by Local Government Act 1985 (c. 51, SIF 81:1), s. 8, Sch. 4 para. 25

F26 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 46

[F27 175A Duty to have regard to needs of disabled and blind in executing works, etc. E+W

(1) In executing works in a street which may impede the mobility of disabled persons or blind persons highway authorities, local authorities and any other person exercising a statutory power to execute works on a highway shall have regard to the needs of such persons.

(2) Any such authority or person as is mentioned in subsection (1) above shall have regard to the needs of disabled persons and blind persons when placing lamp-posts, bollards, traffic-signs, apparatus or other permanent obstructions in a street.

(3) Highway authorities shall have regard to the needs of disabled persons when considering the desirability of providing ramps at appropriate places between carriageways and footways.

(4) In executing in a street any such works as are mentioned in subsection (1) above, any such authority or person as is mentioned in that subsection shall have regard to the need of blind persons to have any openings, whether temporary or permanent, in the street, properly protected.

(5) Section 28 of the Chronically Sick and Disabled Persons Act 1970 (power to define certain expressions for the purposes of provisions of that Act) shall have effect as if any reference in it to a provision of that Act included a reference to this section.]

Textual Amendments

F27 S. 175A inserted by Disabled Persons Act 1981 (c. 43, SIF 81:3), s. 1(1)