Section 30 Power of road works authority to require undertaker to resurface road
85.Section 30 of the Act gives road works authorities a new power to require undertakers to resurface a road in certain circumstances. It does this by introducing a new section 132A to the 1991 Act.
86.Undertakers affected by this new power are those who have given notice under section 113 or section 114 of the 1991 Act, are carrying out road works at the time the road works authority issues the requirement, or are still within the notice period for the completion of road works. The circumstances in which a road works authority can issue a notice (to be known as a resurfacing notice) will be set out in regulations, and will allow the road works authority to require a part of a road to be resurfaced which has not directly been broken up by the undertaker. Equally, the regulations may restrict the extent of the resurfacing works which undertakers are required to carry out.
87.New section 132B gives road works authorities a power to require undertakers to complete resurfacing within certain time periods. It also requires, through regulations, road works authorities to consult undertakers on required time periods, and does not allow the time period to be retrospective from the date when the notice is given. This is to ensure that the time periods allocated to undertakers for the completion of resurfacing are reasonable.
88.New section 132C allows road works authorities to specify the materials and standards of workmanship to be used by undertakers when completing resurfacing work.
Section 31 Resurfacing: regulations and guidance
89.New section 132D to the 1991 Act makes provision for detailed regulations on resurfacing, covering the following areas:
information to be provided in a resurfacing notice;
the decision making process which a road works authority should follow where more than one undertaker has been working on the same area of road, but only one will be served with notice to complete resurfacing;
requirements for an undertaker to give notice of any additional events in relation to resurfacing;
circumstances when undertakers can pay a road works authority to complete the resurfacing itself, rather than the undertaker complete it directly; and
appeal mechanisms and dispute resolution.
90.The Scottish Ministers are placed under a duty to consult any relevant association of undertakers prior to the making of regulations under section 132D.
91.New section 132E to the 1991 Act makes provision for detailed guidance (in the form of a code of practice) on resurfacing which road works authorities and undertakers must follow in discharging their respective duties under this part of the 1991 Act.
Section 32 Contributions to costs of resurfacing by undertaker
92.Section 32 of the Act inserts new section 137A in the 1991 Act which sets out how contributions to the costs of resurfacing should be made. It allows both the road works authority and undertakers involved in working on an area of road to make contributions to the undertaker on which notice has been served (under new section 30) to complete a resurfacing. Details of payments, exemptions, and dispute resolution will be set out in regulations.
93.Section 32 also provides that any costs incurred by an undertaker (including any costs of a road works authority which are borne by the undertaker) in consequence of a failure by the undertaker to comply with any duty under Part IV of the 1991 Act are to be treated as having been incurred unreasonably.
94.Subsection (3) of section 155 of the 1991 Act is amended in line with section 32.