79.—(1) Subject to paragraph (2), any person who—
(a)places or retains any apparatus in or under a road; or
(b)carries out any excavation in a road for the purpose of placing, maintaining, repairing or reinstating any apparatus in or under a road,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(2) Paragraph (1) does not apply to anything done—
(a)under the authority of a licence issued by the Department under this Article;
(b)in relation to a road which is not a special road, by—
(i)a statutory undertaker in the exercise of a statutory power;
(ii)the operator of a telecommunications code system in pursuance of any right conferred by or in accordance with the telecommunications code; or
(iii)the holder of a licence under Article 10(1) of the Electricity Order in pursuance of any right conferred by or in accordance with Schedule 4 to that Order; or
(c)in relation to a special road, with the consent of the Department under Article 17(1) or by virtue of Article 17(2);
(d)in the course of constructing a gutter in the footway in accordance with Article 53(2); or
(e)in the course of constructing a milk tanker facility within the meaning of Article 81(10).
(3) Where—
(a)a person has placed or retained any apparatus or made any excavation in contravention of paragraph (1); and
(b)the Department considers that the apparatus or excavation constitutes a danger to persons using the road,
then (whether or not proceedings are instituted for an offence under that paragraph), the Department may—
(i)remove that apparatus or carry out such other works as are necessary to obviate the danger; and
(ii)recover from that person any expenses thereby reasonably incurred by it.
(4) Where—
(a)a person is convicted of an offence under paragraph (1); and
(b)he does not, within such period as the court may allow, remove any apparatus placed or retained in contravention of that paragraph, fill in any excavation made in contravention of that paragraph and make good any damage to the road,
then the Department may itself—
(i)remove that apparatus, fill in that excavation and make good any damage to the road; and
(ii)recover from that person any expenses thereby reasonably incurred by it.
(5) The Department may by a licence issued under this Article authorise any person—
(a)to place and leave, or to retain, and thereafter (in either case) to maintain, repair and reinstate, apparatus in or under a road; and
(b)to carry out in a road any excavation necessary for that purpose.
(6) The Department may—
(a)issue a licence under this Article to any person and insert in the licence a provision prohibiting assignment of the licence; or
(b)issue a licence under this Article to any person and insert in the licence a provision permitting assignment of the licence; or
(c)issue such a licence to the owner of any land adjoining the road and his successors in title, the licence, unless withdrawn or surrendered, to be annexed to that land,
and references in this Article to the licensee are references to the person who is for the time being entitled by virtue of such a licence to do anything authorised by it to be done.
(7) A licence under this Article shall be issued subject to such conditions as seem to the Department to be adequate for securing—
(a)the proper completion of the works authorised by the licence and the reinstatement of the road; and
(b)the safety and convenience of traffic.
(8) Without prejudice to the generality of paragraph (7), a licence under this Article may be issued subject to conditions—
(a)designed to ensure—
(i)safe access to the road for traffic likely to use the road as a result of the works authorised by the licence; and
(ii)the provision of adequate accommodation adjoining the road for vehicles which, by waiting to load or unload or otherwise using the road for any purpose relating to the works authorised by the licence, might reasonably be expected to obstruct the traffic on the road;
(b)requiring the deposit by the licensee of a sum of money as security for the completion of the works authorised by the licence;
(c)requiring the licensee to insure against such risks in connection with the works authorised by the licence as the Department may specify;
(d)requiring the licensee, before carrying out any works authorised by the licence (except works for the purpose of carrying out emergency repairs), to give not less than 7 days' notice to the Department, stating the nature and place of the works proposed;
(e)requiring the licensee to comply with any directions given by the Department, for the purpose of minimising inconvenience to traffic, as to the date on which or time at which any works authorised by the licence are to be carried out;
(f)requiring any apparatus, wherever practicable, to be laid by thrust boring;
(g)requiring the licensee to cause any works authorised by the licence to be properly guarded and to be properly lighted during the hours of darkness (within the meaning of the Road Traffic Order);
(h)requiring the licensee to give the Department not less than 6 weeks' notice of his intention to cease using or abandon the apparatus.
(9) The Department may by notice served on the licensee withdraw a licence issued under this Article—
(a)on the expiration of such period as may be specified in the notice, being a period of not less than 7 days beginning with the date of service of the notice on the licensee, if—
(i)any condition subject to which the licence was issued is contravened by the licensee; or
(ii)the Department becomes aware that the licensee intends to cease using or abandon the apparatus;
(b)on the expiration of such period as may be so specified, being a period of not less than 3 months beginning with that date, if the Department considers the withdrawal of the licence is necessary for the purpose of the exercise of its functions under this Order.
(10) Unless withdrawn or surrendered by the licensee, a licence under this Article shall remain in force for such period as may be specified therein.
(11) Where a licence under this Article expires or is withdrawn or surrendered—
(a)the Department may require the last licensee, within such period as the Department may specify, to remove the apparatus to which the licence relates or alter it in such manner as the Department may require and to reinstate the road; and
(b)if the last licensee fails to comply with any such requirement the Department may itself do anything which he has failed to do and recover from the last licensee any expenses thereby reasonably incurred by it.
(12) The licensee or (in the case of a licence which has expired or been withdrawn or surrendered) the last licensee shall indemnify the Department against any claim in respect of injury, damage or loss arising out of—
(a)the placing or presence in or under a road of apparatus to which the licence relates, or
(b)the carrying out by any person of any works authorised by the licence or required under paragraph (11),
other than a claim in respect of injury, damage or loss which is attributable to the negligence of the Department.
(13) In paragraphs (11) and (12) “the last licensee” means the person who, immediately before the expiration, withdrawal or surrender of the licence, was the licensee or, if that person has died, his personal representative.
(14) Where—
(a)any condition subject to which a licence is issued under this Article is contravened by the licensee; and
(b)the Department considers that, by reason of that contravention, there is a danger to persons using the road,
the Department may carry out such works as are necessary to obviate the danger and recover from the licensee any expenses thereby reasonably incurred by it.
(15) Where any apparatus—
(a)has been removed by the Department under paragraph (3), (4) or (11); and
(b)has not been recovered by its owner within 21 days from the day on which it was removed,
the Department may dispose of it in such manner as the Department thinks fit.
(16) Where any apparatus is disposed of by sale under paragraph (15) the expenses of removal and sale shall be defrayed out of the proceeds thereof and the balance of the proceeds (if any) shall be given to the owner if known and if not shall be applied in the same manner as is provided for with respect to fines by section 20 of the Administration of Justice Act (Northern Ireland) 1954(1).
(17) Where the Department disposes of any thing under paragraph (15)—
(a)by sale and the proceeds are not sufficient to defray the Department’s expenses; or
(b)in some manner other than by sale,
the Department may recover from the person who placed that apparatus in or under the road any expenses reasonably incurred by it in removing and disposing of the apparatus.