1999 No. 2106
CONTRACTING OUT

The Local Authorities (Contracting Out of Highway Functions) Order 1999

Made
Coming into force
Whereas a draft of this Order has been laid before Parliament and approved by a resolution of each House of Parliament under section 77(2) of the Deregulation and Contracting Out Act 19941;
Now, therefore, the Secretary of State for the Environment, Transport and the Regions, as respects England, and the Secretary of State for Wales, as respects Wales, in exercise of the powers conferred by sections 702 and 77(1) of that Act and of all other powers enabling them in that behalf, after consultation with such representatives of local government as they consider appropriate, hereby make the following Order:–

Citation, commencement and interpretation1.

(1)

This Order may be cited as the Local Authorities (Contracting Out of Highway Functions) Order 1999 and shall come into force on the day after the day on which it is made.

(2)

In this Order, unless the context otherwise requires:

“the 1980 Act” means the Highways Act 19803;
“the 1991 Act” means the New Roads and Street Works Act 19914;

“highway” has the same meaning as it has in section 328 of the 1980 Act;

“highway authority” has the same meaning as it has in section 15 of the 1980 Act;

“highway connected land” means land which does not form part of the highway but which has been acquired by a local highway authority in connection with a highway under section 239(1) or (4) or section 246 of the 1980 Act or otherwise; and

“local highway authority” has the meaning given in section 329(1) of the 1980 Act.

(3)

In Schedule 1 to this Order, any expression used in the 1980 Act has the same meaning as it has in that Act unless the context otherwise requires.

(4)

In Schedule 2 to this Order, any expression used in the 1991 Act has the same meaning as it has in that Act unless the context otherwise requires.

Contracting out of functions of local highway authorities2.

Any function of a local highway authority which is conferred by or under any of the provisions described in Schedule 1, 2 or 3 to this Order may be exercised by, or by employees of, such person (if any) as may be authorised in that behalf by the local highway authority whose function it is.

Signed by authority of the Secretary of State for the Environment, Transport and the Regions

Glenda Jackson
Parliamentary Under Secretary of State,
Department of the Environment, Transport and the Regions

Signed by the authority of the Secretary of State for Wales

Peter Hain
Parliamentary Under Secretary of State, Welsh Office

SCHEDULE 1FUNCTIONS CONFERRED BY THE HIGHWAYS ACT 1980 OR ANY REGULATIONS UNDER ANY PROVISION OF THAT ACT

Article 2

1.

Subject to paragraph 5 below, functions conferred on a local highway authority as highway authority6 for a highway in relation to that highway or to highway connected land, by or under any of the following provisions of the 1980 Act:

(a)

section 41(1) (highway authority’s duty to maintain highway maintainable at public expense);

(b)

section 627 (general power of improvement);

(c)

section 648 (dual carriageways and roundabouts);

(d)

section 66 (provision of footways and guard-rails etc. for publicly maintainable highways);

(e)

section 68 (refuges);

(f)

section 69(1) (highway authority’s powers to construct, light, etc. subways);

(g)

section 70 (footbridges over highways);

(h)

section 71 (margins for horses and livestock);

(i)

section 75(1) and (2) (highway authority’s powers to vary widths of carriageways and footways);

(j)

section 76 (levelling of highways);

(k)

section 77 (alteration of levels);

(l)

section 78 (cutting off of corners);

(m)

section 80(1), (2), and (3)9 (power to fence highways);

(n)

section 81 (provision of highway boundary posts);

(o)

section 84 (maintenance of cattle-grids and by-passes);

(p)

section 90 (protection of bridges and railways);

(q)

section 90G10 (traffic calming works);

(r)

section 92 (reconstruction of bridge maintainable at public expense);

(s)

section 96 (powers of highway and local authorities to plant trees, lay out grass verges etc.);

(t)

section 97 (lighting of highways);

(u)

section 99 (metalling of highways);

(v)

section 100(1), (2), (4), (5)11 and (6)12 (highway authority’s powers and duties relating to drainage of highways) except insofar as they relate to the power to enter premises under section 168 of the Water Industry Act 199113 (entry for works purposes);

(w)

section 101(1), (3), (4), (5), and (6) (power to fill in roadside ditches etc.);

(x)

section 102(1) and (2) (provision of works for protecting highways against hazards of nature);

(y)

section 103 (provision of posts to indicate depth of flood water);

(z)

section 104 (mitigating nuisance of dust);

(aa)

section 105 (power to improve road-ferries);

(bb)

section 11414 (provision of public conveniences by county council for users of roads for which they are the highway authority);

(cc)

section 115H(1)15 (prohibition on exercise of certain of a council’s powers without consent of the highway authority);

(dd)

section 133 (damage to footways of streets by excavations);

(ee)

section 139(1) and (2) (prohibition on deposit of builders' skips without permission of the highway authority);

(ff)

section 140(2) (removal of builders' skips);

(gg)

section 141(2) (highway authority’s power by notice to require removal of tree or shrub in or near carriageway);

(hh)

section 150(1), (2) and (4) (highway authority’s duty to remove snow, soil etc. from highway) except insofar as they relate to an obstruction in a highway which is the property of any person;

(ii)

section 167(2), (5) and (6) (consultation with highway authority and local authority’s power to give notices in relation to retaining walls near streets);

(jj)

section 169(1), (2), (3) and (4)16 (power of highway authority to license, and give directions in relation to, scaffolding or other structures obstructing the highway);

(kk)

section 171 (control of deposit of building materials and making of excavations in streets) except insofar as functions conferred by or under section 171(7) relate to the removal of property of any person;

(ll)

section 178(1) (prohibition on placing rails, beams etc. over highways without consent of the highway authority).

2.

Subject to paragraph 5 below, functions conferred on a local highway authority by or under section 288 of the 1980 Act (power to require gas and water pipes to be moved) insofar as that provision applies to the exercise of any other function listed in this Schedule.

3.

Subject to paragraph 5 below, functions conferred on a local highway authority as competent authority, by virtue of its being a highway authority for a highway, by or under any of the following provisions of the 1980 Act:

(a)

section 143(1)17 (competent authority’s power to give notice requiring removal of structures from highways); and

(b)

section 154(1)18, (1A)19 and (2) (competent authority’s power to give notice requiring removal of overhanging hedge, tree or shrub); and

(c)

section 18520 (competent authority’s power to install etc. refuse or storage bins in streets).

4.

Functions conferred on a local highway authority as highway authority for a highway by or under the following provisions of the Walkway Regulations 197321:

(a)

regulation 3(1) (prohibition on exercise of certain powers conferred on highway authority in relation to walkways without consent of building owner);

(b)

regulation 4(1) (prohibition on placing etc. of apparatus of statutory undertakers without consent of highway authority and building owner);

(c)

regulation 5(3) (prohibition on temporary closure of walkway until expiry of a specified period from the date of notice to the highway authority and others); and

(d)

regulation 6 (stopping up of walkway by building owner).

5.

(1)

Paragraphs 1 to 3 above shall not include:

(a)

any functions conferred by or under section 294 of the 1980 Act (entry etc., of premises by highway authority or council for certain purposes); or

(b)

any function to the extent that the function confers a power or right of entry into or on any premises or land of which the local highway authority is not the owner or occupier.

(2)

Where section 338 or 33922 of the 1980 Act (saving for works, etc., of dock, harbour and canal undertakers and saving for works etc. of drainage authorities etc.) applies to the exercise of any functions listed in paragraphs 1 to 3 above, those functions shall be construed as including any additional requirements imposed by those sections.

SCHEDULE 2FUNCTIONS CONFERRED BY THE NEW ROADS AND STREET WORKS ACT 1991 OR REGULATIONS UNDER ANY PROVISION OF THAT ACT

Article 2

1.

Functions conferred on the local highway authority as street authority for a street by or under any of the following provisions of the 1991 Act:

(a)

section 53 (the street works register);

(b)

section 54(1) and (4) (advance notice of certain works);

(c)

section 55(1) and (4) (notice of starting date of works);

(d)

section 56(1) and (4) (street authority’s power to give directions as to the timing of street works);

(e)

section 58 (restriction on works following substantial roadworks);

(f)

section 59 (general duty of street authority to co-ordinate works);

(g)

section 60(1) (general duty of undertaker to co-operate with the street authority with respect to the execution of street works);

(h)

section 61 (protected streets) except insofar as they relate to the powers to designate a street as protected;

(i)

section 65(5) (street authority’s power to take steps where undertaker has failed to comply with certain obligations, and to recover costs incurred);

(j)

section 66(3) and (4) (street authority’s power to give notice to undertaker to mitigate and discontinue obstruction, to take necessary steps and to recover costs incurred);

(k)

section 68(1) (undertaker to afford reasonable facilities to the street authority);

(l)

section 70(3) and (4) (undertaker to inform street authority of completion of interim and permanent reinstatement);

(m)

section 72 (powers of street authority in relation to reinstatement);

(n)

section 75 (inspection fees);

(o)

section 81 (duty to maintain apparatus);

(p)

section 82(1) (payment of compensation to street authority); and

(q)

section 94(1) and (2) (power of street authority to enter into an agreement with an undertaker for the execution of street works).

2.

Functions conferred on a local highway authority as traffic authority for a highway by or under section 65(2) of the 1991 Act (undertaker to comply with directions given by traffic authority).

3.

Functions conferred on a local highway authority as a relevant authority other than a street authority by or under the following provisions of the 1991 Act:

(a)

section 81 (duty to maintain apparatus); and

(b)

section 82(1) (payment of compensation to any relevant authority).

4.

Functions conferred on a local highway authority as highway authority for a highway or as bridge authority for a bridge by or under the following provisions of the 1991 Act:

(a)

section 83 (works for road purposes likely to affect apparatus in the street);

(b)

section 84(1), (3) and (4) (undertaker and bridge or highway authority to take steps where apparatus affected by major works and requirement to pay compensation in certain circumstances);

(c)

section 85(1) and (3) of the 1991 Act (highway and bridge authority to bear allowable costs of necessary measures where undertaker’s apparatus affected by major highway or bridge works and right to recover undertaker’s costs from third parties); and

(d)

section 88(4) and (5) (consultation with bridge authority prior to execution of certain works, provision of reasonable facilities for bridge authority to monitor works, and compliance with directions of bridge authority).

5.

Functions conferred on a local highway authority as responsible authority by or under section 90 of the 1991 Act (provisions as to reinstatement of sewers, drains or tunnels).

6.

Functions conferred on a local highway authority as street authority for a street by or under regulation 3 of the Street Works (Inspection Fees) Regulations 199223 (undertaker required to pay the street authority a fee for each chargeable inspection carried out by the street authority).

7.

Functions conferred on a local highway authority as street authority for a street by or under regulation 3 or 10 of the Street Works (Reinstatement) Regulations 199224 (street authority’s power to give notice affecting the standard of reinstatement required and extension of the period for completion by agreement between the undertaker and the street authority).

8.

Functions conferred on a local highway authority as highway authority for a highway or as bridge authority for a bridge by or under any provision of the Street Works (Sharing of Costs of Works) Regulations 199225.

9.

Functions conferred on a local highway authority as street authority for a street under regulations 3 and 4 of the Street Works (Maintenance) Regulations 199226 (street authority’s power to execute works to enable it to inspect undertaker’s apparatus and to execute any emergency works needed).

10.

Functions conferred on a local highway authority as street authority for a street or as highway authority for a highway or as bridge authority for a bridge by or under any of the following provisions of the Street Works (Registers, Notices, Directives and Designations) Regulations 199227:

(a)

regulation 3(2) and (3) (information on street works to be shown on the register, and the person responsible for securing its registration);

(b)

regulation 5 (prescribed manner of service of notices);

(c)

regulation 7 (notice of starting date of works);

(d)

regulation 8 (procedure for giving directions);

(e)

regulation 11(3) (information to be made available by street authority in respect of designated protected streets);

(f)

regulation 12(3) (information to be made available by street authority in respect of designated streets with special engineering difficulties); and

(g)

regulation 13(3) (information to be made available by street authority in respect of designated traffic sensitive streets).

SCHEDULE 3FUNCTIONS CONFERRED BY MISCELLANEOUS ENACTMENTS

Article 2

1.

Functions conferred on a local highway authority as highway authority for a highway by or under section 15328 of the Public Health Act 187529 (power to require gas and water pipes to be moved).

2.

Functions conferred on a local highway authority as highway authority for a highway by or under section 1430 of the Public Health Act 192531 (consent of highway authority required for the provision of public drinking fountains, seats, etc. in streets).

3.

Functions conferred on a local highway authority by or under section 5(1) and (2) of the Local Government (Miscellaneous Provisions) Act 195332 (prohibition on the provisions of omnibus shelters etc., except with the consent of the highway authority and other persons).

4.

Functions conferred on a local highway authority under section 5(1) and (2) of the Parish Councils Act 195733 (prohibition on the provision of seats, shelves, lamps etc. in roads except with the consent of specified persons).

5.

Functions conferred on a local highway authority as highway authority for a highway by or under the following provisions of the Public Health Act 196134:

(a)

section 45 (attachment of street lamps); and

(b)

section 8135 (summary recovery of damages for negligence).

6.

Functions conferred on a local highway authority by or under section 5(6) of, and Schedule 1 to, the Litter Act 198336 (consent of the local highway authority required for works in relation to litter bins).

7.

Functions conferred on a local highway authority as highway authority for a highway by or under section 72(1) of the Road Traffic Regulation Act 198437 (provision of traffic signs on or near a road with permission of the highway authority).

8.

Functions conferred on a local highway authority as highway authority for a highway by or under sections 4 and 5(1) of the Cycle Tracks Act 198438 (provision of barriers in cycle tracks, etc. and highway authority’s duty to pay compensation).
(This note is not part of the Order)

This Order enables local Highway Authorities to authorise another person, or that person’s employees, to exercise certain of their functions in relation to maintenance, improvement and other dealings with highways in respect of which they are the highway authority.