Part 3: Permit schemes
Section 32: Meaning of "permit scheme"
64.Section 32 defines the expression “permit scheme” and indicates the provisions which can be included in a permit scheme. The provisions include:
provisions as to the type of works which do and do not require permits and provisions as to cases where works can be carried out without the issue of a permit (for instance in the case of emergencies);
provisions as to the conditions which can be attached to the grant of a permit;
provisions as to arrangements for reviewing or varying permits that have already been issued.
Section 33: Preparation of permit schemes
65.Section 33 makes provision with respect to the preparation of permit schemes.
66.Individual local highway authorities (e.g. a county council), or two or more such authorities, may prepare and submit a permit scheme to the appropriate national authority. In this Part, the appropriate national authority is the Secretary of State (in England), or the National Assembly for Wales (in Wales).
67.The appropriate national authority may direct an individual highway authority, or two or more such authorities, to prepare and submit to it a permit scheme in the form it directs.
68.In addition, the appropriate national authority can prepare a permit scheme. Such a scheme prepared by the Secretary of State could cover streets in the Royal Parks.
69.The section provides that those preparing permit schemes must comply with any regulations made under this Part of the Act (referred to in this Part as “permit regulations”). In addition, those preparing schemes must have regard to any guidance that may be issued by the appropriate national authority.
Section 34: Implementation of local highway authority permit schemes
70.Section 34 provides for the implementation of local highway authority permit schemes. Such a scheme shall not come into effect other than by an order of the appropriate national authority. The order must set out the scheme and specify the date on which it starts operation. The order may include provisions which disapply or modify enactments provided the provisions are in accordance with permit regulations.
Section 35: Implementation of other permit schemes
71.Section 35 makes provision corresponding to section 34 in relation to permit schemes prepared by the appropriate national authority.
Section 36: Variation and revocation of permit schemes
72.Section 36 provides that the appropriate national authority may subsequently make a further order varying or revoking a permit scheme which is in force. An order under this section may relate to one or more permit schemes. In addition, an order may vary or revoke an order previously made by a national authority giving effect to a particular permit scheme, or an order under this section. An order made under this section may revoke or disapply enactments to the extent specified in the order, provided that it is in accordance with permit regulations.
Section 37: Permit regulations
73.Section 37 enables the appropriate national authority to issue permit regulations which make provision with respect to the content, preparation, submission, approval, operation, variation or revocation of permit schemes.
74.Subsection (2) enables the regulations to provide for certain standard provisions to apply in relation to permit schemes.
75.Subsection (3) enables regulations to make provision in relation to the matters mentioned in section 33(2), including, for example, provision as to the types of conditions that can be attached to a permit. Subsection (3)(b) enables the regulations to make provision for the purpose of limiting the streets, or type of streets, which may be subject to a permit scheme.
76.Subsection (4) enables the regulations to make further provision, including:
the criteria which permit scheme operators have to take into account in deciding whether to issue a permit, with or without conditions, or in considering whether to review or vary a permit;
provision for the determination of disputes or to enable the facilitation of the determination of disputes (including provision as to mediation, representations, hearings, arbitration and adjudication if appropriate). Connected matters such as costs could also be provided for, as well as provision for the appointment of persons to make or facilitate the determination of disputes.
conferring a right of appeal (including provision for persons to hear appeals);
the creation of one or more criminal offences (attracting a maximum fine of £5,000 on summary conviction) in connection with permits.
77.Subsection (5) provides that regulations made under subsection (4) require the consent of the Lord Chancellor before they can be made in cases where the regulations make provision for or in connection with adjudication.
78.Subsection (6) provides that regulations may provide for the introduction of fixed penalty notices in relation to any of the criminal offences which are created under the regulations.
79.Subsection (7) enables the regulations to make provision for the payment of fees in connection with one or more specified stages of the permitting process, including an application for the issue of a permit.
80.Subsection (8) enables the regulations to make further provision in relation to the payment of fees, including cases where fees are not payable, provision for the repayment of fees, what those fees should be and what use permit scheme operators can make of any sums raised through fees.
81.Subsection (9) requires that the national authority, in making regulations in relation to permit fees, must try to ensure that the fees payable by users of the schemes do not exceed certain costs. The costs may prescribed by the national authority, and these could include, for instance, costs in connection with issuing permits, keeping a register of permits and enforcement measures for schemes, such as inspectors.
82.Subsection (10)enables the national authority to make use of estimates of costs when it makes an assessment of the level of costs to authorities of operating a permit scheme. These estimates may include the average costs to authorities or to particular descriptions of authority.
83.Subsection (11) enables the regulations to require registers to be kept with information on permits and to make provision in connection with the access to information contained in such a register, and for the keeping of accounts in relation to permit schemes.
84.Subsection (12) enables the regulations to provide for cases in which a highway authority, or two or more highway authorities acting together, can prepare a permit scheme in respect of streets for which they are not the highway authority.
85.Subsection (13) enables the regulations to modify or disapply enactments in connection with permit schemes.
Section 38: Crown application
86.Section 38 provides for permit schemes to apply to works carried out by, or on behalf of, central government. Works carried out by or on behalf of the Queen in her private capacity will not require a permit.
Section 39: Interpretation of Part 3
87.Section 39 defines certain expressions and words used elsewhere in Part 3. Of particular note is the definition of "works". This defines the works for which it might potentially be necessary to obtain a permit in areas where a scheme is in operation. This includes utility street works and works governed by the Highways Act 1980. The latter could include highway authority road works, the placing of skips and the deposit of building materials in the highway.
88.The section provides that the Secretary of State may not make the first set of permit regulations unless a draft has been approved by both Houses of Parliament. Any further permit regulations will be subject to the negative resolution Parliamentary procedure.
