Part III Miscellaneous
Provisions relating to closing of roads for works
28F3 Restriction on breaking up by undertakers of maintainable highways recently closed or re-surfaced.
1
Subject to the provisions of this section, a statutory power of undertakers to break up or open a F4public 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 F5road 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 F6roads 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 F5road on that date, within one month from the completion of those undertakers’ works or, in either case, within some extended period agreed between the F6roads 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 F7road other than the carriageway for the purposes of—
a
works relating only to a service pipe or service line or F8overhead 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 F9roads 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 F9roads authority or the authority by whom the power is exercisable.
C15
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 F10road in any case in which it is unlawful by virtue of subsection (1) of this section for them so to do—
a
b
without prejudice to their liability under the preceding paragraph, they shall be liable on summary conviction to a fine not exceeding F12level 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 F13roads 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.