New Roads and Street Works Act 1991

Supplementary provisions S

154 Offences. S

(1) Any provision of this Part imposing criminal liability in respect of any matter is without prejudice to any civil liability in respect of the same matter.

(2) Where a failure to comply with a duty imposed by this Part is continued after conviction, the person in default commits a further offence.

[F1 154A Fixed penalties for certain offences under this Part S

(1) Any offence under this Part relating to road works which is listed in the first column of Schedule 6A (and described in general terms in the second column) is a fixed penalty offence for the purposes of this Part.

(2) Offences listed in that Schedule which are committed by virtue of section 166 (offences by bodies corporate and partnerships) are not fixed penalty offences.

(3) The Scottish Ministers may by order made by statutory instrument modify that Schedule so as to provide for offences under this Part relating to road works to become (or cease to be) fixed penalty offences.

(4) No such order shall be made unless a draft of the statutory instrument containing it has been laid before and approved by resolution of the Scottish Parliament.

(5) Schedule 6B (which makes provision about fixed penalties for fixed penalty offences) has effect.]

Textual Amendments

F1 S. 154A inserted (S.) (1.10.2008) by Transport (Scotland) Act 2005 (asp 12), ss. 34(1), 54(2); S.S.I. 2008/15, art. 2(3), sch. 2

Modifications etc. (not altering text)

C1 S. 154A(5) restricted (1.10.2008) by The Road Works (Fixed Penalty) (Scotland) Regulations 2008 (S.S.I. 2008/244), regs. 1, 3

155 Recovery of costs or expenses. S

(1) Any provision of this Part enabling an authority, body or person to recover the costs or expenses of taking any action shall be taken to include the relevant administrative expenses of that authority, body or person including an appropriate sum in respect of general staff costs and overheads.

The Secretary of State may prescribe the basis on which such amounts are to be calculated; and different provision may be made for different cases or descriptions of case.

(2) Where a right to payment enuring for the benefit of a person is conferred in respect of the same matter—

(a) both under this Part and under any enactment or agreement passed or made before the commencement of this Part, or

(b) by two or more provisions of this Part,

a payment made in discharge of any of those rights shall be treated as being made in or towards satisfaction of the other or others.

(3) Where under any provision of this Part a person is entitled in certain circumstances to recover costs or expenses incurred by him in executing works or taking other steps, any dispute as to the existence of those circumstances or as to the amount recoverable shall be determined [F2 in the prescribed manner].

This applies whether the provision is expressed as conferring a right to recover, or as imposing a liability to reimburse or indemnify or to bear the cost, but does not apply in relation to a provision expressed as providing for the charging of a fee or conferring a right to compensation or in relation to section 137 (contribution to the cost of making good long-term damage to the road).

Textual Amendments

F2 Words in s. 155(3) substituted (1.4.2008) by Transport (Scotland) Act 2005 (asp 12), ss. 36(1)(2)(f), 54(2); S.S.I. 2008/15, art. 2(2), sch. 1

Commencement Information

I1 S. 155 wholly in force at 1.1.1993, see s. 170 and S.I. 1992/2990, art. 2(2), Sch. 2

156 Service of notices and other documents. S

(1) Notices required or authorised to be given for the purposes of this Part shall be given in the prescribed form.

(2) The Secretary of State may make provision by regulations as to the manner of service of notices and other documents required or authorised to be served for the purposes of this Part.

[F3 (3) References in this section to notices authorised to be given or served for the purposes of this Part include reference to notices under Schedule 8B to the Roads (Scotland) Act 1984 (c. 54) (fixed penalties for certain offences under that Act).]

Textual Amendments

F3 S. 156(3) inserted (1.10.2008) by Transport (Scotland) Act 2005 (asp 12), ss. 37(4), 54(2); S.S.I. 2008/15, art. 2(3), sch. 2

157 Reckoning of periods. S

(1) In reckoning for the purposes of this Part a period expressed as a period from or before a given date, that date shall be excluded.

(2) For the purposes of this Part a working day means a day other than a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday; and a notice given after 4.30 p.m. on a working day shall be treated as given on the next working day.

(3) In subsection (2) a “bank holiday” means a day which is a bank holiday under the M1 Banking and Financial Dealings Act 1971 in the locality in which the road in question is situated.

Marginal Citations

M1 1971 c. 80.

[F4 157A Regulations prescribing manner of settlement of disputes S

Regulations under this Part prescribing the manner in which any question or dispute is to be settled may in particular make provision for the question or, as the case may be, dispute to be settled—

(a) by the Commissioner, or

(b) by arbitration.]

Textual Amendments

F4 S. 157A inserted (S.) (1.4.2008) by Transport (Scotland) Act 2005 (asp 12), ss. 36(4), 54(2); S.S.I. 2008/15, art. 2(2), sch. 1

158 Arbitration. S

(1) Any matter which under this Part is to be settled by arbitration shall be referred for determination by a single arbiter appointed by agreement between the parties concerned or, in default of agreement, by the sheriff.

(2) In any arbitration in accordance with subsection (1) the arbiter may, and if so directed by the Court of Session shall, state a case for the decision of the Court on any question of law arising in the arbitration; and the decision of the Court shall be final unless the Court or the [F5 Supreme Court] give leave to appeal to the [F5 Supreme Court] against the decision.

(3) Leave under subsection (2) may be given on such terms as to expenses or otherwise as the Court or the [F5 Supreme Court] may determine.

Textual Amendments

F5 Words in s. 158(2)(3) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 9 para. 53; S.I. 2009/1604, art. 2(d)

159 Agreements inconsistent with the provisions of this Part. S

(1) An agreement which purports to make provision regulating the execution of road works is of no effect to the extent that it is inconsistent with the provisions of this Part.

(2) This does not affect an agreement for the waiver or variation of a right conferred on a relevant authority by any of the provisions of this Part which is made after the right has accrued and is not inconsistent with the future operation of those provisions.

160 Effect of this Part on certain existing special enactments or instruments. S

(1) Any special enactment passed or made before the commencement of this Part which makes or authorises the making of provision regulating the execution of road works in a manner inconsistent with the provisions of this Part shall cease to have effect; and unless a contrary intention appears no enactment passed or made after the commencement of this Part shall be construed as making or authorising the making of any such provision.

This subsection does not apply to any provision as to the obtaining of consent for the execution of the works or for any other purpose.

(2) Any special enactment passed or made before the commencement of this Part which requires the consent of a relevant authority (in its capacity as such) to the execution of road works shall cease to have effect, except as mentioned below; and unless a contrary intention appears no special enactment passed or made after the commencement of this Part shall be construed as requiring such consent.

This subsection does not apply to a consent requirement so far as it relates to—

(a) works above the surface level of the road, or

(b) works outside the limits of supply of an undertaker in relation to whom such limits are imposed.

(3) A provision made by way of condition imposed on the giving of a consent for the execution of road works is of no effect in so far as it would have been so by virtue of section 159 if it had been made by an agreement.

(4) If it appears to the Secretary of State—

(a) that by the operation of subsection (1) a person has been or will be deprived of some protection afforded by a special enactment and that corresponding protection is in all the circumstances required, or

(b) that a requirement of consent imposed by a special enactment should be saved from the operation of subsection (2), either as regards all works to which the requirement extends or as regards any description of such works, or

(c) that conditions of any descriptions should be rendered valid notwithstanding subsection (3), or

(d) that uncertainty or obscurity has resulted or is likely to result from the operation on a special enactment of the general provisions of subsection (1), (2) or (3),

he may by order make such provision as he considers appropriate for affording such protection, saving the requirement, rendering the conditions valid or modifying the special enactment, as the case may be.

(5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament; and the provisions of Schedule 7 have effect with respect to the procedure for making such an order.

(6) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.

161 Effect of this Part on other existing enactments or instruments. S

(1) The Secretary of State may by order make such provision amending, repealing, or preserving the effect of, any enactment passed or made before the commencement of this Part (not being a special enactment to which section 160(1), (2) or (3) applies) as appears to him appropriate in consequence of the provisions of this Part.

(2) Subject to any order under this section and (in the case of a public general Act) to any express amendment made by this Act, any such enactment which proceeds by reference to any provision of the M2 Public Utilities Street Works Act 1950, or any other provision repealed by this Act in consequence of this Part, shall continue to have effect as if the provision referred to had not been repealed.

(3) An order under this section may, in particular, make provision in relation to—

(a) enactments providing for the keeping of records of apparatus, and

(b) enactments providing for the giving of notice of proposed road works.

(4) An order under this section may contain such transitional provisions and savings as appear to the Secretary of State to be appropriate.

(5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) Except as mentioned in section 138(6), the provisions of Schedule 7 have effect with respect to the making of an order under this section in relation to a special enactment.

(7) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.

Marginal Citations

M2 1950 c. 39.

162 Former controlled land. S

(1) The following provisions apply with respect to land (not forming part of a road) in which immediately before the commencement of this Part there is apparatus placed by virtue of Schedule 1 to the M3 Public Utilities Street Works Act 1950 (authorisation of works in certain land abutting a road).

(2) If any person having a sufficient interest in the land gives notice to the undertaker that he objects to the continuance of the powers and rights over the land given by that Schedule, those powers and rights shall cease to have effect at the end of the period of six months from the date on which the notice was given.

For this purpose a person has a sufficient interest in the land if he is an owner, lessee or occupier of the land having an interest greater than that of tenant for a year or from year to year.

(3) The road works authority shall indemnify the undertaker in respect of the costs reasonably incurred by him in or in connection with—

(a) any removal of apparatus rendered necessary by the cessation of his powers and rights under this section, and

(b) the execution of any works or taking of any other measures rendered necessary thereby for the purposes of the supply or service for which apparatus whose removal is rendered necessary was used.

(4) Where the land becomes part of the road after the commencement of this Part, any consent which would have been required for the placing of the apparatus in the road had it been placed there immediately after the land in question became part of the road shall be deemed to have been given unconditionally.

(5) Subject to any exercise of the right conferred by subsection (2), the rights and powers of the undertaker under Schedule 1 to the Public Utilities Street Works Act 1950 continue unaffected by the repeal of that Act.

Marginal Citations

M3 1950 c. 39.

163 Meaning of “prescribed” and regulations generally. S

(1) In this Part “prescribed” means prescribed by the Secretary of State by regulations, which may (unless the context otherwise requires) make different provision for different cases.

(2) Regulations under this Part shall be made by statutory instrument which, unless provision to the contrary is made, shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) Regulations under this Part may provide for references in the regulations to any specified document to operate as references to that document as revised or re-issued from time to time.

[F6 163A Consultation on regulations and codes of practice S

(1) Before—

(a) making, amending or revoking regulations under or for the purposes of any provision of this Part, or

(b) issuing, amending or revoking a code of practice under or for the purposes of any such provision or approving any such code of practice or its amendment or revocation,

the Scottish Ministers shall consult the persons and authorities set out in subsection (2).

(2) Those persons and authorities are such—

(a) persons considered by the Scottish Ministers to be representative of the interests of undertakers,

(b) road works authorities,

(c) other persons,

as the Scottish Ministers think appropriate.]

Textual Amendments

F6 S. 163A inserted (S.) (1.10.2007) by Transport (Scotland) Act 2005 (asp 12), ss. 39, 54(2); S.S.I. 2007/409, art. 2

164 Minor definitions. S

(1) In this Part—

• “apparatus” includes any structure for the lodging therein of apparatus or for gaining access to apparatus;

• “carriageway” and “footway” have the same meaning as in the M4 Roads (Scotland) Act 1984;

• “enactment” includes an enactment contained in subordinate legislation within the meaning of the M5 Interpretation Act 1978.

• “in”, in a context referring to works, apparatus or other property in a road or other place includes a reference to works, apparatus or other property under, over, across, along or upon it;

• [F7 “public sewer” has the same meaning as in the Sewerage (Scotland) Act 1968;]

• “railway” includes a light railway other than one in the nature of a tramway (see the definition of “tramway” below);

• “reinstatement” includes making good;

• F8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “special enactment” means an enactment which is not a public general enactment, and includes—

  (a)

  any Act for confirming a provisional order,

  (b)

  any provision of a public general Act in relation to the passing of which any of the Standing Orders of the House of Lords or the House of Commons relating to Private Business applied, and

  (c)

  any enactment to the extent that it is incorporated or applied for the purposes of a special enactment;

• “statutory right” means a right (whether expressed as a right, a power or otherwise) conferred by an enactment (whenever passed or made), other than a right exercisable by virtue of a permission granted under section 109;

• “traffic” includes pedestrians and animals;

• “traffic authority” and “traffic sign” have the same meaning as in the M6 Road Traffic Regulation Act 1984;

• “tramway” means a system, mainly or exclusively for the carriage of passengers, using vehicles guided, or powered by energy transmitted, by rails or other fixed apparatus installed exclusively or mainly in a road.

(2) A right to execute works which extends both to a road and to other land is included in references in this Part to a right to execute works in a road in so far as it extends to the road.

(3) A right to execute works which extends to part of the road but not the whole is included in references in this Part to a right to execute works in a road; and in relation to such a right references in this Part to the road in which it is exercisable shall be construed as references to the part to which the right extends.

(4) For the purposes of this Part apparatus shall be regarded as affected by works if the effect of the works is to prevent or restrict access to the apparatus (for example, by laying other apparatus above or adjacent to it).

(5) Section 28 of the M7 Chronically Sick and Disabled Persons Act 1970 (power to define “disability” and other expressions) applies in relation to the provisions of this Part as to the provisions of that Act.

Textual Amendments

F7 Words in s. 164(1) inserted (1.4.2002) by Water Industry (Scotland) Act 2002 (asp 3), s. 71, Sch. 7 para. 21(7)(a) (with s. 67); S.S.I. 2002/118, art. 2

F8 Words in s. 164(1) repealed (1.4.2002) by Water Industry (Scotland) Act 2002 (asp 3), s. 71, Sch. 7 para. 21(7)(b) (with s. 67); S.S.I. 2002/118, art. 2

Marginal Citations

M4 1984 c. 54.

M5 1978 c. 30.

M6 1984 c. 27.

M7 1970 c. 44.

165 Index of defined expressions. S

The expressions listed below are defined or otherwise fall to be construed for the purposes of this Part in accordance with the provisions indicated—

affected by (in relation to apparatus and works)	section 164(4)
apparatus	section 148(2) and 164
arbitration	section 158
bridge	section 147(1)(a)
bridge authority	section 147(1)(b)
carriageway	section 164
[F9 the Commissioner	section 112A(1)]
costs	section 155
disability	(see section 164(4))
emergency works	section 111
enactment	section 164
expenses	section 155
[F10 fixed penalty offence	section 154A(1)]
footway	section 164
in (in a context referring to works, apparatus or other property in a road)	section 164
local roads authority	section 145(1)
major bridge works	section 147(2)
major works for roads purposes	section 145(3)
major transport works	section 150(2)
notice	section 156
prescribed	section 163
public road	section 145(1)
railway	section 164
reinstatement	section 164 (and see sections 129(5) and 149(1))
relevant authority (in relation to road works)	section 108(6) (and see section 150(3))
road	section 107(1)
road managers	section 108(4)
road works	section 107(3) (and see section 164(2) and (3))
road works authority	section 108(1)
roads authority	section 145(1)
special enactment	section 164(1)
[F11 the SRWR	section 112A(1)]
statutory right	section 164(1)
traffic	section 164(1)
traffic authority	section 164(1)
traffic sign	section 164(1)
tramway	section 164(1)
transport authority	section 150(1)(a)
transport undertaking	section 150(1)(b)
undertaker (in relation to road works or apparatus)	sections 107(4) and (5) and 148(3)
working day	section 157(2)
works for road purposes	section 145(2).

Textual Amendments

F9 Words in s. 165 inserted (29.2.2008 for specified purposes, 1.4.2008 in so far as not already in force) by Transport (Scotland) Act 2005 (asp 12), ss. 19(7)(a), 54(2); S.S.I. 2008/15, art. 2(1)(2), sch. 1

F10 Words in s. 165 inserted (1.10.2008) by Transport (Scotland) Act 2005 (asp 12), ss. 34(2), 54(2); S.S.I. 2008/15, art. 2(3), sch. 2

F11 Words in s. 165 inserted (29.2.2008 for specified purposes, 1.4.2008 in so far as not already in force) by Transport (Scotland) Act 2005 (asp 12), ss. 19(7)(b), 54(2); S.S.I. 2008/15, art. 2(1)(2), sch. 1