Highways Act 1980

156 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 highway maintainable at the public expense which consists of or comprises a carriageway, being a power conferred for any purpose other than road purposes or purposes of a railway undertaking or a tramway undertaking, is not exercisable in the highway during the 12 months following either—

(a) the end of any period during which the use by vehicles of the carriageway has been prohibited, or the width of the carriageway 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 conditions specified in subsection (2) below are satisfied.

(2) The conditions referred to in subsection (1) above are—

(a) that a competent authority had given to the undertakers, more than 3 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

(b) 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, under, over, across, along or upon the highway on that date, within one month from the completion of those undertakers' works, or in either case within some extended period agreed between a competent 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.

For the purposes of this subsection the following are competent authorities:—

(i) in the case of a highway which is for the time being maintained by a district council by virtue of section 42 or 50 above, that council and also the highway authority, and

(ii) in the case of any other highway, the highway authority.

(3) Subsection (1) above does not apply to breaking up or opening for the purposes of emergency works.

(4) Subsection (1) above does not apply to breaking up or opening a part of the highway other than a carriageway for the purposes of—

(a) works relating only to a service pipe or service line or an overhead telegraphic line or an overhead electric line, 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) above, which it is not reasonably practicable for them to satisfy without the breaking up or opening in question;

but the exception in paragraph (a) above applies, in the case of a placing of a service pipe or service line, only if it is for affording a supply or service to premises to which it is not already afforded.

(5) Subsection (1) above does not apply to breaking up or opening done with the consent of the highway authority, and a consent for this purpose shall not be unreasonably withheld.

Any question whether the withholding of such 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 such a determination of the said Ministers shall not be impugned on the ground that either of them is himself the highway authority or the authority by whom the power is exercisable.

(6) Subsection (1) above does not apply to breaking up or opening a highway to which section 157 below applies.

(7) If undertakers break up or open a highway in any case in which it is unlawful by virtue of subsection (1) above for them to do so—

(a) they shall pay to the highway authority an amount equal to any cost reasonably incurred by the authority of reinstating and making good the highway; and

(b) without prejudice to their liability under paragraph (a) above, they are guilty of an offence and liable to a fine not exceeding £50.

If any question arises in relation to a claim made for a payment under paragraph (a) above the question shall be determined by a single arbitrator appointed, in default of agreement between the parties concerned, by the President of the Institution of Civil Engineers.

(8) Proceedings for the enforcement of the obligation imposed by subsection (1) above shall not, without the written consent of the Attorney-General, be taken by any person other than a person having an interest in the performance of the obligation.

(9) 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 highway authority and for which consent has been withheld and (where the withholding has been questioned) has been determined to have been reasonably withheld, the failure shall not be treated as a contravention of that enactment.

(10) In this section—

(a) the reference to a power conferred for the purposes of a railway undertaking or a tramway undertaking includes a reference to a power conferred primarily for those purposes but for other purposes also;

(b) "emergency works", "railway", "reinstatement and making good ", " road purposes ", " service line ", " service pipe ", " telegraphic line ", " tramway ", "undertakers" and "undertakers' works" have the same meaning respectively as in the [1950 c. 39.] Public Utilities Street Works Act 1950.