(1)The following provisions of this section shall have effect as to obligations of undertakers executing works to which this section applies (in this section referred to as “operating undertakers”) in relation to apparatus to which this section applies of undertakers other than the operating undertakers (in this section referred to as “owning undertakers”).
The works to which this section applies are any undertakers’ works (other than works for purposes of a railway undertaking) executed in a [F1street][F1road] or in controlled land in exercise of a statutory power or of such a power together with an authorisation given under the First Schedule ot this Act, other than works which have been substantially begun before the expiration of six months from the passing of this Act; and the apparatus to which this section applies is any apparatus of undertakers (other than apparatus held or used for the purposes of a railway undertaking) in a [F1street][F1road] or in controlled land, being apparatus maintainable under a statutory power or under such a power together with an authorisation given under the First Schedule to this Act.
(2)Operating undertakers shall not begin any works to which this section applies which are likely to affect apparatus to which this section applies of owning undertakers (other than works relating only to a service pipe or service line or [F2overhead telecommunication apparatus], in this section referred to as “excepted works”) until they have given to the owning undertakers notice of their intention to execute undertakers’ works, indicating the nature of the works and the place where they intend to execute them, and three days have expired from the date on which the notice was given:
Provided that operating undertakers may begin any such works as aforesaid being emergency works without giving such notice as aforesaid, but as soon as is reasonably practicable after doing so they shall give notice to the owning undertakers stating the reason for their having done so.
(3)Operating undertakers shall, during the execution of works to which this section applies which are likely to affect apparatus to which this section applies of owning undertakers (other than excepted works), give to the owning undertakers reasonable facilities for supervising the execution of the works.
(4)Operating undertakers shall comply with the following requirements as to works to which this section applies, that is to say—
(a)in the case of works other than excepted works, they shall comply with any requirement as to the nature of the works, or as to things to be done or avoided in the execution thereof, which is made by owning undertakers and compliance with which is reasonably necessary for the protection of apparatus to which this section applies of the owning undertakers or for securing access thereto and is reasonably practicable having regard to the time when the requirement is made;
(b)without prejudice to the generality of the preceding paragraph, they shall where the works include tunnelling or boring under apparatus to which this section applies of owning undertakers, secure that there is proper temporary support for the apparatus during the execution of the works and that a proper permanent foundation is provided therefor;
(c)without prejudice to the generality of paragraph (a) of this subsection, they shall, where the works include the laying of an electric line crossing or near apparatus to which this section applies of owning undertakers, secure that it is effectively insulated and is so laid as not to be capable of touching such apparatus, and shall secure that such apparatus is not used as a conductor for electric current transmitted by the line laid.
(5)In the case of emergency works operating undertakers shall be treated as having complied with the requirements of the two last preceding subsections if they have taken all such steps towards satisfying those requirements as it was reasonably practicable for them to take consistently with meeting the circumstances for which those works were required.
(6)Operating undertakers shall pay to owning undertakers compensation equal to the expense reasonably incurred by the owning undertakers of making good damage to apparatus of theirs to which this section applies which is caused by the execution lawfully of works to which this section applies of the operating undertakers, or by failure of the operating undertakers to comply with any requirement of subsection (4) of this section:
Provided that operating undertakers shall not be liable by virtue of this subsection in respect of any damage if it would not have been sustained but for misconduct or negligence on the part of the owning undertakers or their contractors or any person in the employ of the owning undertakers or their contractors.
(7)Obligations and liabilities imposed on operating undertakers by the preceding provisions of this section shall be in addition to, and not in substitution for, obligations and liabilities to which they are subject apart from those provisions, but subject as regards the last preceding subsection to the provisions of section thirty-two of this Act.
(8)Without prejudice to any liability under subsection (6) of this section, undertakers who fail to comply with any requirement of subsection (2), (3) or (4) of this section shall be liable in respect of each such failure on summary conviction to a fine not exceeding [F3level 3 on the standard scale], unless they prove that the failure was attributable to their not knowing of the existence, or not knowing of the position, of the apparatus of the owning undertakers in question, and that their ignorance thereof was not due to any negligence on their part or to any failure to make some inquiry which they ought reasonably to have made.
Textual Amendments
F1Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(22)
F2Words substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 29(2), Sch. 5 para. 45
F3Words 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
Modifications etc. (not altering text)
[F4(1)In subsection (1) of section forty-seven of the Road Traffic Act, 1930 (which empowers the authority responsible for the maintenance thereof to restrict or prohibit the use of a road or part of a road by vehicles where they are satisfied that traffic on the road should be restricted or prohibited by reason of works of repair or reconstruction being required or being in progress on the road), for the words “works of repair or reconstruction being required or being in progress”, there shall be substituted the words “any works being executed or proposed to be executed”.]
[F5(2) Where by reason of undertakers’ works (other than works for purposes of a railway undertaking or a tramway undertaking) the use of a road is restricted or prohibited under the said section forty-seven or under any other enactment, and the traffic restricted or prohibited uses as an alternative route a road of a lower classification, the authority, body or person executing the works shall pay to the [F6roads authority (if the latter road is a public road) or to the road] managers (if it is not) an amount equal to any cost reasonably incurred by the authority or managers of—
(a)strengthening the latter road, in so far as the strengthening is done with a view to, and is necessary for, the use thereof by the traffic in question; or
(b)making good any damage to the latter road occurring in consequence of the use thereof by the traffic in question.
(3) For the purposes of the last preceding subsection the order of classification of roads, from higher to lower, shall be taken to be the following, that is to say, trunk roads, classified roads . . . F7, and roads being neither trunk roads nor classified roads.]
(4)This section shall come into operation at the expiration of six months from the passing of this Act.
Textual Amendments
F4S. 27(1) repealed (E.W.) by Road Traffic Act 1960 (c. 16, SIF 107:1), s. 267, Sch. 18
F5S. 27(2)(3) repealed (E.W.) by Highways Act 1959 (c. 25, SIF 59), Sch. 25
F6Words substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(23)
F7Words repealed by Local Government (Scotland) Act 1966 (c. 51), Sch. 6
Modifications etc. (not altering text)
C2Reference to s. 47 of the Road Traffic Regulation Act 1930 (c. 43) to be construed as mentioned in Road Traffic Regulation Act 1984 (c. 27, SIF 107:1), s. 144(1), Sch. 10 para. 2
(1)Subject to the provisions of this section, a statutory power of undertakers to break up or open a [F9public road] which comprises a carriageway, being a power conferred for any purpose other than road purposes or purposes of a railway undertaking or a tramway undertaking, shall not be exercisable in the [F10road] during the twelve months following either—
(a)the end of any period during which the use by vehicles of the carriageway has been prohibited, or the width thereof available for vehicular traffic has been reduced to less than two-thirds of its width, for the purposes of the execution of works for road purposes or of such works and other works, or
(b)the completion of a re-surfacing extending to one-third or more of the width of the carriageway,
if the following conditions are satisfied, that is to say—
(i)that the [F11roads] authority had given to the undertakers, after the passing of this Act and more than three months before the date on which the works for road purposes, or the re-surfacing works, as the case may be, were substantially begun, a notice stating that works for road purposes, or re-surfacing works, relevant for the purposes of this section were in prospect and specifying a date intended for beginning them; and
(ii)that the works for road purposes, or the re-surfacing works, as the case may be, were substantially begun on, or within one month from, the date so specified or, if any undertakers’ works were in progress in the [F10road] on that date, within one month from the completion of those undertakers’ works or, in either case, within some extended period agreed between the [F11roads] authority and the undertakers for the purposes of the operation of this subsection in relation to the works for road purposes, or the re-surfacing works, as the case may be.
(2)The preceding subsection shall not apply to breaking up or opening for the purposes of emergency works.
(3)Subsection (1) of this section shall not apply to breaking up or opening a part of the [F12road] other than the carriageway for the purposes of—
(a)works relating only to a service pipe or service line or [F13overhead telecommunication apparatus] or an overhead electric line, but, in the case of a placing of a service pipe or a service line, only if it is for affording a supply or service to premises to which it is not already afforded; or
(b)works required for satisfaction by the undertakers of an obligation of theirs created by an enactment, or created by an agreement made before the giving of the notice referred to in subsection (1) of this section, which it is not reasonably practicable for them to satisfy without the breaking up or opening in question.
(4)Subsection (1) of this section shall not apply to breaking up or opening done with the consent of the [F14roads] authority, and a consent for the purposes of this subsection shall not be unreasonably withheld.
Any question arising under this subsection whether the withholding of a consent is unreasonable shall be determined by the Minister and the Minister of the Crown in charge of the Department concerned with the purposes for which the power to break up or open is conferred acting jointly (any question which is the Department so concerned being determined by the Treasury), and a determination of the said Ministers shall not be impugned on the ground that either of them is himself the [F14roads] authority or the authority by whom the power is exercisable.
(5)Subsection (1) of this section shall not apply to breaking up or opening a highway being a street to which section four of the London Traffic Act, 1924, applies.
(6)If undertakers break up or open a [F15road] in any case in which it is unlawful by virtue of subsection (1) of this section for them so to do—
(a)they shall pay to the [F16roads] authority an amount equal to any cost reasonably incurred by the authority of reinstating and making good the [F15road]; and
(b)without prejudice to their liability under the preceding paragraph, they shall be liable on summary conviction to a fine not exceeding [F17level 3 on the standard scale].
(7)In so far as any failure of undertakers to satisfy an obligation to which they are subject by virtue of any enactment is attributable to the prohibition by this section of breaking up or opening for which the undertakers have duly sought the consent of the [F18roads] authority and for which consent has been withheld and has been determined to have been reasonably withheld, the failure shall not be treated as a contravention of that enactment.]
Textual Amendments
F8S. 28 repealed (E.W.) by Highway Act 1959 (c. 25, SIF 59), Sch. 25
F9Words substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(a)(i)
F10Word substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(a)(ii)
F11Word substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(a)(ii)
F12Word substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(b)
F13Words substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 29(2), Sch. 5 para. 45
F14Word substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(c)
F15Word substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(d)
F16Word substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(d)
F17Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G
F18Word substituted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(24)(e)
Modifications etc. (not altering text)
C3The text of s. 28(5) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and (except as specified) does not reflect any amendments or repeals which may have been made prior to 1.2.1991.
(1)The [F19street][F19roads] authority shall not be liable in respect of any damage to apparatus to which this section applies which is caused by storage by the authority after the expiration of six months from the passing of this Act, in connection with the execution of works for road purposes, of any plant, equipment, or materials on any part of the [F20street][F20road] other than a carriageway, cycle track [F21, footway] or footpath or on the controlled land.
(2)This section applies to apparatus in a [F22street that is a maintainable highway, or is prospectively a maintainable highway][F22public road or prospective public road], being apparatus placed (whether before or after the passing of this Act) in exercise of a power to which section one of this Act applies or over which such a power is exercisable, and to apparatus in controlled land placed in exercise of such a power together with an authorisation under the First Schedule to this Act.
(3)This section shall have effect subject to any agreement between a street authority and undertakers to whom apparatus belongs.
Textual Amendments
F19Word “roads” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(25)(a)(i)
F20Word “road” substituted (S.) for word “street” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(25)(a)(i)
F21Word inserted (S.) by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(25)(a)(ii)
F22Words “public road or prospective public road” substituted (S.) for words “street that is a maintainable highway, or is prospectively a maintainable highway” by Roads (Scotland) Act 1984 (c. 54, SIF 108), Sch. 9 para. 39(25)(b)