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Traffic Management Act 2004

Part 4 : Street Works

89.Part 3 of the New Roads and Street Works Act 1991 (NRSWA) contains the scheme for managing street works in England and Wales. All references in this part to NRSWA are to be taken as references to Part 3 of that Act. The regulation making powers in NRSWA are exercised by the Secretary of State (in England), and by the National Assembly for Wales (in Wales). References in this Part to the power of the Secretary of State to make regulations should be read accordingly.

Section 40 and Schedule 1: Increase in penalties for summary offences under 1991 Act

90.Section 40 increases the maximum fines for a number of summary offences under NRSWA from level 3 (£1,000) to levels 4 (£2,500) or 5 (£5,000).

91.Subsection (3)increases the maximum fine to level 4 (£2,500) in the case of an offence consisting of a failure to comply with section 70(3) (requirement to give notice of completion of permanent or interim reinstatement) or 70(4A) (requirement to give notice of completion of reinstatement), and to level 5 (£5,000) for other offences under that section.

92.Subsection (4) increases the maximum fines for offences under regulations made under section 74 (overrun charges) and section 74A (lane rental) to level 4. These offences relate to failure to give notices.

93.Subsection (5) increases the penalties for offences under section 88 of NRSWA (which relates to cases where an undertaker carries out street works affecting the structure of a bridge). The maximum fine for the offence of failing to give the bridge authority reasonable facilities for monitoring the execution of the works is increased to level 4. The maximum fine for the offence of failing to consult the bridge authority before giving notice or failure to comply with a requirement necessary for the protection of the bridge is increased to level 5.

Section 41 and Schedules 2 and 3: Fixed penalty offences

94.Section 41 inserts a new section 95A into NRSWA to create a fixed penalty notice system for offences.

95.The table identifying the offences to which fixed penalty notice regime applies is in Schedule 2 to the Act (which inserts a new Schedule 4A to NRSWA). The details of how the system will operate are contained in Schedule 3 to the Act (which inserts a new Schedule 4B to NRSWA).

96.Subsection (1) of the new section 95A provides that any offence under Part 3 of NRSWA which is listed in the first column of the new Schedule 4A is a fixed penalty offence for the purposes of that Part.

97.Subsection (2) of the new section 95A provides that offences committed by virtue of section 166 of NRSWA are not fixed penalty offences. In general terms, the effect of section 166 is that in cases where an offence by a body corporate is committed with the connivance or consent, or is attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body, then that officer is also guilty of an offence, and is liable to be prosecuted in the courts. Given subsection (2), the street authority will continue to prosecute such offences through the Magistrates’ Court. Section 166 of NRSWA deals separately with the position of Scottish partnerships in Scotland. The Act does not extend to Scotland, and the reference to Scotland in the Act is simply to accurately reflect the ambit of section 166.

98.Subsection (3) of the new section 95A provides that the Secretary of State may by order modify the new Schedule 4A in NRSWA to provide for an offence under Part 3 of NRSWA to become or cease to be a fixed penalty offence. Subsection (4) of the new section 95A provides that the Secretary of State may not make such an order unless a draft has been approved by both Houses of Parliament.

99.Schedule 3 to the Act inserts a new Schedule 4B into NRSWA, which contains the provisions that apply where an authorised officer of a street authority gives a person (generally an utility) a fixed penalty notice.

100.Paragraph 4 of Schedule (4B) provides for the amount of the penalty and the period for payment. Sub-paragraph (1) of that paragraph provides that (subject to paragraph 5) the penalty is to be prescribed by the Secretary of State, but that it may not exceed 30% of the maximum fine for that offence. Sub-paragraph (2) provides that the period for payment of the penalty is the period of 29 days beginning with the day on which the notice is given, and sub-paragraph (3) provides a power to the street authority to extend the period for paying the penalty if they think it appropriate to do so.

101.Paragraph 5 of the Schedule provides for the amount of the penalty to be discounted, and the period for payment of that discounted penalty. Sub-paragraph (1) of that paragraph provides that the discounted penalty is payable if payment is made during the period of 15 days beginning with the day on which the notice is given. Sub-paragraph (2) provides that the discounted amount is prescribed by the Secretary of State and may not exceed 25% of the maximum fine for that offence.

102.Paragraph 6(2) of the Schedule provides that no proceedings for the offence may be commenced before the end of the period for payment of the penalty, and paragraph 6(3) provides that no proceedings may be commenced or continued if payment of the penalty is made before the end of the period for payment of the penalty, or accepted by the street authority after that time. It is a matter for the street authority whether to accept a payment after the period for payment of the penalty has passed.

103.Paragraph 7 of the Schedule provides for a power of the street authority to withdraw notices, in cases where they have been erroneously served or consider there are extenuating circumstances. Sub-paragraph (3) provides that the street authority is bound to consider any representations made by or on behalf of a person given a notice, and that they must decide in all the circumstances whether to withdraw the notice.

104.Where the penalty is not paid during the period for payment, the street authority may commence a prosecution in the Magistrates Court in the usual way.

105.Paragraph 8 of the Schedule provides that the Secretary of State may (with the consent of the Treasury) make regulations about the application by street authorities of fixed penalties paid under the Schedule and for the keeping of accounts etc.

106.Paragraph 9(a) and (c) of the Schedule provides that the Secretary of State may make regulations prescribing the circumstances in which a fixed penalty notice may not be given, and the methods for the payment of penalties (which may, for example, be electronic). Paragraph 9(b) enables the Secretary of State (in England) or the National Assembly for Wales (in Wales) to substitute the periods specified in paragraphs 4(2) and 5(1) (period for payment of the penalty and discounted penalty respectively) for different periods. The regulations would be subject to the negative procedure.

Section 42: Duty of street authority to co-ordinate works

107.Under section 59 of NRSWA, a street authority has a duty to co-ordinate statutory undertakers’ street works and their own road works. The section amends section 59 to provide for that duty to be extended to encompass the co-ordination of certain other prescribed temporary activities on the highway, for example the placing of skips and scaffolding.

Section 43: Directions relating to timing of street works

108.Section 43 amends section 56 of NRSWA. Section 56 gives authorities certain powers to direct utilities as to the time at which their works may be carried out, where the authority believe that the works would otherwise cause serious disruption to traffic. At present NRSWA enables the authority to direct the utility only to carry out work at certain times of the day, for example between 10am and 3pm. If they work outside of the directed times they commit an offence.

109.The amendment made by subsection (2) enables an authority to direct a utility only to carry out works at certain times and on certain days, or both at certain times and days, for example between 10am and 3pm on the 1st and 2nd of November.

110.At present, the direction may only deal with proposed works. Subsection (3) adds a new subsection (1A) to section 56 of NRSWA, which enables a street authority to make a direction where works have already commenced.

Section 44: Directions as to placing of apparatus

111.Section 44 inserts a new section 56A into NRSWA. Section 56A enables the street authority to direct an undertaker not to use a proposed street to place their apparatus, if it appears to the street authority that this is likely to cause disruption to traffic, and there is another street in which the apparatus could be placed. In order to make such a direction there has to be at least one other reasonable alternative route, which if used would result in less disruption. Further, the installation of the apparatus in the alternative street must be a reasonable way of achieving the purpose for which the apparatus is to be placed, and it must be reasonable to require the undertaker not to place the apparatus in the street proposed by the undertaker. In making its direction, the authority cannot direct an undertaker to use a particular alternative street, but may merely prevent the undertaker from installing apparatus in certain streets. The section creates a level 5 offence for contravening such a direction.

112.Subsection (4) provides for regulations prescribing the procedure for giving directions and subsection (5) provides for regulations dealing with appeals. Subsection (8)provides that the Secretary of State may issue or approve a code of practice giving practical guidance as to the exercise by street authorities of the power conferred by this section, and provides that in exercising that power a street authority must have regard to the code of practice.

Section 45: The street works register

113Section 45amends section 53 of the NRSWA which places a duty on street authorities to keep a register showing with respect to each street for which they are responsible such information as may be prescribed with respect to the street works, and such other descriptions of works as may be prescribed, executed or proposed to be executed in the street (an example of other works are local authority road maintenance works).

114.Subsection (2) amends section 53(1) so as to confer a power to make regulations to require the street authority to keep additional information on the register, including information about any of the following:

  • apparatus placed or proposed to be placed in the street;

  • builders' skips deposited or proposed to be deposited in the street;

  • scaffolding or other structures, which are erected, or proposed to be erected in the street.

115.Section 53(4) and (5) of NRSWA provide that the Secretary of State can make arrangements for the duty of an individual street authority to keep a register for its area to be satisfied by the appointment of someone to keep one or more "central" registers. Subsection (3) inserts a new subsection (4A) into section 53 providing that a "central register" means a register covering two or more authority areas.

116.Subsection (4) inserts a new subsection 5(A), which enables the Secretary of State to require a street authority to share information on its register with a person appointed to keep a central register.

Section 46: Records of location of apparatus

117.Section 46amends section 79 of NRSWA which requires, except in such cases as may be prescribed, that an undertaker shall record the location of every item of apparatus belonging to him as soon as reasonably practicable after placing it in the street or altering its position, locating it in the street in the course of executing any works, or being informed of its location under section 80 of NRSWA (duty to inform undertakers of location of unidentified apparatus).

118.Subsection(2) inserts a new subsection (1A) into section 79 of NRSWA. It provides that an undertaker can (except in circumstances prescribed in regulations) include in its section 79 records other records not required to be included in the records kept by undertakers under section 79.

119.Subsection (3) inserts a new subsection  (2A) into section 79 of NRSWA. It provides that regulations under section 79(2) as to the form and manner of records (for instance regulations providing that the records should be held in electronic form) may apply to records made before the regulations take effect.

Section 47: Duties relating to the location of unexpected apparatus

120.Section 47amends section 80 of NRSWA which imposes duties on a person carrying out works in the street where he discovers apparatus belonging to another person which is either not marked, or is wrongly marked, on existing location records.

121.Subsection(2) amends section 80(1) of NRSWA to clarify that the records in question are those kept by undertakers under section 79 of that Act.

122.Subsection (3) inserts a new subsection (1A) into section 80 to provide that regulations may prescribe exceptions to the duty in section 80. Subsection (4) substitutes subsections (2) and (2A) into section 80. Subsection (2) provides that a person executing works of any description in the street who finds apparatus which does not belong to him, and who is unable, after taking such steps as are reasonably practicable, to ascertain to whom the apparatus belongs, must comply with such requirements as may be prescribed in regulations for making and keeping a record of the location and nature of the apparatus and whether it is in use, and to inform the street authority or any other person of those matters. Subsection (2A) provides that regulations under subsection (2) may make provision as to the form and manner in which records are to be kept, and the manner in which or time at or by which information is to be given, and also for records which are to be kept by undertakers to be included in the records kept by them under section 79(1).

123.Section 80(4) of NRSWA provides that it is an offence not to comply with the requirements set down in section 80(1) and 80(2). Subsection (5) provides that the offence applies in respect of any requirement imposed upon a person under subsection (2).

124.Subsection (6) allows for the establishment of one or more registers of information to be held on apparatus which is unearthed in the course of works where it is not possible to identify who the apparatus belongs to.

Section 48: Duty to inspect records

125.Section 48 inserts section 53A (duty to inspect records) into NRSWA. That section enables the Secretary of State to create a new duty in regulations requiring an undertaker who wishes to carry out street works to inspect statutory records (for instance records of the apparatus already located in that street) before doing so. The street works to which the duty applies and the records which must be inspected are to be set out in regulations.

126.The procedure for inspecting records, and how an undertaker could prove that he had carried out an inspection, may be set out in regulations.

127.The inserted section also enables the regulations made under it to create a level 5 offence (with a maximum fine of £5,000) where an undertaker fails to comply with the requirements of the regulations.

Section 49:Notices of street works

128.Section 49 rectifies some problems with the giving of advance notices by undertakers under sections 54 and 55 of NRSWA. Subsection (1) amends subsection (3) of section 54 of the 1991 Act. It provides that the advance notice under section 54 must contain the date when the works are intended to start and such other information as may be prescribed. It also inserts a new subsection (4A) into section 54. This requires that if an undertaker does not submit before this start date a further notice, required nearer to the time of works under section 55, then it must supply the authority with a further notice. This notice will contain such information as may be prescribed. Subsection (1) also inserts a new subsections (4B) and (4C) into section 54 which provides that if works have not substantially begun within a prescribed period after the proposed start date in a section 54 advance notice, then the notice ceases to have effect, meaning the proposed works cannot lawfully begin. If the undertaker still wishes to carry out the works, he will have to start the process of giving advance notice all over again. Different periods may be prescribed for different descriptions of works.

129.Subsection (2) inserts new subsections (8) and (9) into section 55 of NRSWA to provide that if a notice becomes invalid under section 55 then an undertaker must provide a further notice containing such information as may be prescribed. If the undertaker fails to provide this further notice he commits a criminal offence and is liable on summary conviction to a fine not exceeding level 4 fine on the standard scale (£2,500). Subsection (3) amends section 93, to make similar provision in respect of works affecting level crossings or tramways.

Section 50: Qualifications of supervisors and operatives

130.Section 50amends section 67 of NRSWA which provides that when carrying out street works involving breaking up the street, or any sewer, drain or tunnel under it, or tunnelling or boring into the street an undertaker must secure that, except in such cases as may be prescribed, the execution of the works is supervised by a person having a prescribed qualification. They must also ensure that when such works are in progress there is always at least one person on site having a prescribed qualification as an operative. Subsections (2) and (3) insert new subsections (1A)(a) and (2A)(a) into section 67, to enable a street authority where such works are taking place or have taken place, to require by notice that an undertaker provide the names of the current or previous qualified persons, and evidence of the required qualification.

131.Subsections (2) and (3) also insert new subsections (1A)(b) and (2A)(b) into section 67 to enable regulations to prescribe the evidence that undertakers must supply in the cases of both supervisors and operatives.

132.Subsection (2B) inserted by subsection (3) provides that a notice under subsections (1A) or (2A) may be given at any time while the works are being executed or within such period after their completion as may be prescribed.

133.Subsection (5) amends the existing powers of the Secretary of State to make regulations dealing with the training qualifications issued by approved training bodies. It provides that the regulations may prescribe the form of any document issued by an approved body to certify a qualification.

Section 51: Works following substantial road works

134.Section 51 amends the existing provision restricting street works following substantial road works carried out by the highway authority. Section 58 of NRSWA provides that where a street authority propose to carry out substantial road works in a highway, the street authority may by notice restrict the execution of street works during the twelve months following the completion of the road works.

135.Subsections (2) and (3) amend section 58 so as to provide that the maximum length of a restriction on the execution of street works, and the period of notification of a proposed restriction required to be given by the street authority, are to be prescribed in regulations, rather than being fixed periods in the primary legislation. Subsection (4)amends section 58(3) to enable regulations to prescribe certain descriptions of persons who must be notified of the proposed restriction.

136.Section 58(4) currently provides that a notice restricting the execution of street works ceases to be effective if the road works to which it relates are not substantially begun on or within one month from the date specified in the notice, or in cases where they are in progress on the specified date in the notice (in the part of the highway to which the restriction relates), within one month from the completion of those works. Subsection (5) of this section amends section 58(4) to provide that regulations may prescribe the period after which a notice ceases to be effective (if the works are not substantially begun).

137.Section 58(7) currently provides that the question as to whether the street authority has unreasonably withheld consent to an undertaker to execute works shall be settled by arbitration. Subsection (7)amends section 58(7) to provide that disputes shall be decided in the prescribed manner. Subsection (8) inserts subsection (7A) into section 58, providing that regulations under section 58(7) may make provide for questions to be settled by arbitration or by a person designated by the Secretary of State.

138.Subsection (9) refers to the notices that an undertaker must give an authority before commencing street works, under section 55 of the Act. It provides for different notice periods to be prescribed if the undertaker has been given a notice under section 58(1) relating to restrictions following substantial road works.

Section 52 and Schedule 4: Restriction on works following substantial street works

139.Section 52 inserts a new section 58A into NRSWA, and refers to Schedule 4 of the Act, which inserts a new Schedule 3A into NRSWA. These provisions confer a new power for a street authority to impose a restriction following substantial street works carried out by undertakers. Substantial street works may be prescribed in regulations. It is similar to the corresponding provision in section 58 of NRSWA (restriction on works following substantial road works).

140.Paragraph 1 of Schedule 3A provides that the Schedule applies where an authority receive a notice under sections 54 or 55 of NRSWA from an undertaker notifying them of proposed substantial street works.

141.Paragraph 2 enables a street authority to publish a notice informing undertakers that substantial street works will take place and that they intend to impose a restriction. Regulations may provide for how the notice is to be published and its form and content. This paragraph also lists the various persons who should be given a copy of the notice – those listed under section 58 and any other person of a prescribed description. The published notice requires undertakers to notify the street authority within the period specified in the notice, which may not be less than a period to be prescribed in regulations, if they wish to carry out works. This period is referred to as the "notice period". Regulations may also prescribe the form of the notice required to be given by undertakers. The notices required to be given by undertakers under section 55 are not required if they have to give this other type of notice.

142.Paragraph 3 sets out the power of the street authority to make directions to the following undertakers once the notice period has expired:

  • the undertaker proposing the substantial works;

  • undertakers who have given a notice in response to the authorities’ notice;

  • any other undertakers who have previously given notice of their works.

143.The street authority's directions can be given in respect of the date on which he may begin to execute the works proposed by him. Where an undertaker has received a direction and begins works before the directed date he is guilty of a level 5 offence. Once the notice period specified has expired paragraph 3(4) makes it a level 5 offence for any other undertaker to carry out works before the undertakers directed by the authority. Paragraph 3(5) excludes emergency works and other cases that may be prescribed from the scope of this offence.

144.Paragraph 4 confers a power on the authority to make a direction restricting further works. The direction must be made by the authority after the expiry of the notice period and before the completion of the works carried out as a result of the directions under paragraph 3. The procedure for giving directions and their form and content may be prescribed by regulations. The paragraph also provides that regulations may prescribe the maximum period of the duration of the restriction.

145.Paragraph 5 has the same effect as the provisions in section 58 which provide that certain categories of work may be carried out whilst the restriction is in place. It also provides for regulations to prescribe the process for settling disputes concerning the giving of consent for such works.

146.The remainder of section 52 makes consequential amendments to provisions in NRSWA, so as to provide that the giving by an undertaker of a notice under paragraph 2 of Schedule 3A in relation to street works that they propose to carry out, has similar consequences to the giving of a section 55 notice.

Section 53: Notices requiring remedial works relating to reinstatements

147.At present, sections 72 and 90 of NRSWA provide that where an undertaker carries out works which involve breaking open streets, sewers, drains or tunnels, but fails to reinstate the street properly afterwards, the relevant authority (for instance the street authority) can require them to rectify the failure within a period of not less than 7 working days from the date of the notice. Section 53 amends sections 72 and 90 to replace the 7 day period, and to provide that the minimum period within which the street authority can require the undertaker to rectify the failure (from the date of the notice) may be prescribed in regulations, and that cases may be prescribed in which no minimum applies.

Section 54: Duty to notify street authority of reinstatement

148.Under section 70(3) of NRSWA the undertaker must inform an authority before the end of the next working day after the day on which the reinstatement is completed, that the reinstatement has been carried out. The reinstatement may be permanent or interim but if interim, it must be made permanent within six months. Section 54 amends the time period for giving the notice required by section 70(3) to provide that the undertaker has up to seven working days from the completion of the reinstatement to notify the authority that the reinstatement has been carried out. The section also enables regulations to require other prescribed information about the reinstatement to be provided. Subsection (3) also inserts a new subsection (4A) into section 70 of NRSWA, which provides that where an undertaker carries out an permanent reinstatement after the interim one he must also give a further notice within seven working days from the date on which the permanent reinstatement was completed, giving such other information about the reinstatement as may be prescribed.

149.The new subsection (4B) inserted by subsection (3)provides that the time period for notifying both permanent and interim reinstatements, and the maximum period for completion of a permanent reinstatement from the time of an interim reinstatement may be modified by regulations.

Section 55: Power of street authority to require undertaker to re-surface street

150.Section 55 inserts new sections 73A, 73B and 73C into NRSWA to enable a street authority, in certain circumstances, to require an undertaker to resurface a street.

151.Section 73A provides for a "re-surfacing notice" to be given by the authority to the undertaker specifying the resurfacing work they require the undertaker to carry out. A re-surfacing notice could be given when an undertaker:

  • has given notice under section 54 or 55 of NRSWA, or under paragraph 2(1)(d) of Schedule 3A of that Act, to carry out street works that will involve the breaking up of any part of the street,

  • is executing street works which involve the breaking up of any part of the street at the time the notice is given, or

  • has previously carried out street works in that street which involved the breaking up of any part of the street (there is provision to prescribe how far back in time this could be applied but any period is permitted unless one is prescribed).

152.The works in respect of which a re-surfacing notice may be given are limited to works carried out from the time of commencement of this section. Undertakers will be subject to the provisions from that time irrespective of whether or not any regulations have been made by the Secretary of State (in England) or the National Assembly for Wales (in Wales), under the accompanying provisions.

153.Section 73A(4) enables a resurfacing notice to relieve the undertaker of some or all of his duties under section 70 of NRSWA with regard to reinstatement of the surface of the street. Regulations may restrict the extent to which the duty may be relieved. Section 73A(5) enables resurfacing notices to be varied or withdrawn.

154.Section 73A(6) provides that a street authority may serve a resurfacing notice notwithstanding that the authority (in any capacity) are under a duty to undertake any of the works specified in the notice.

155.Section 73B deals with the timing of resurfacing works. It enables the authority to specify in a "re-surfacing notice" times, stages and dates for beginning, executing and completing works. Regulations may restrict the use of this power, in some or all cases, including any requirement to consult an undertaker before imposing a restriction.

156.Section 73C provides that the new road surface must conform to any prescribed standards for the materials and workmanship as well as any performance standards for a prescribed period after resurfacing.

Section 56: Re-surfacing: regulations and guidance

157.Section 56 inserts sections 73D and 73E into NRSWA.

158.Section 73D provides for regulations supplementing sections 73A-73C. In particular, these may provide for the following:

  • information for resurfacing notices;

  • deciding which undertaker should be served with the notice;

  • notification of prescribed events by undertakers;

  • prescribe circumstances in which an undertaker is entitled to pay a sum to the street authority instead of executing the works specified in a re-surfacing notice, and make provision about the manner in which such sums are to be calculated;

  • rights of review or appeal against a notice or any requirement contained in it;

  • determination of disputes;

  • application of any other provisions in Part 3 of NRSWA or in the Highways Act 1980 to resurfacing works;

  • relieving other undertakers of some or all of their duties under section 70 of NRSWA with regard to reinstatement of the surface of the street.

159.Section 73D(4) enables offences to be created by regulations.

160.Section 73E provides for the Secretary of State to issue a code of practice giving practical guidance on the matters in sections 73A-73D and on regulations made under those sections.

Section 57: Contributions to costs of re-surfacing by undertaker

161.Section 57 inserts a new section 78A into NRSWA which deals with the contributions to costs in relation to resurfacing work by undertakers. It provides for street authorities to pay contributions to the undertaker carrying out the resurfacing as well as for contributions from other undertakers who have carried out reinstatements in that part of the street. It also provides for those other undertakers to pay contributions to the street authority if the undertaker served with a re-surfacing notice elects instead to make a payment to the authority, which then carries out the work. In either case, contributions may only be sought from undertakers who carry out works after the commencement of this section. Undertakers will be subject to the provisions from that time, irrespective of whether or not any regulations have been made by the Secretary of State (in England) or the National Assembly for Wales (in Wales) under this section.

162.The section enables regulations to set out:

  • how the contributions to the costs of re-surfacing are calculated;

  • the method of payment (including provision for the manner of payment and payment by instalments);

  • the period from which payments are required to be made;

  • how undertakers are to be informed by the street authority that they are required to make a contribution to the costs of re-surfacing;

  • the extent to which the street authority is required to make up any contributions that cannot be recovered as a result of the insolvency of an undertaker;

  • requirements that disputes of a prescribed description are to be determined in such a manner and by such persons as provided for in the regulations; and

  • provisions to deal with cases where an undertaker has already made, or is liable to make, a payment to the authority under section 78 of NRSWA (contributions to making good the cost of long-term damage).

Section 58: Inspection fees

163.Section 58 widens the regulation making powers of the Secretary of State in relation to the setting of fees for the inspection of utilities' works. Section 72(2) of NRSWA provides for the circumstances where a street authority inspects an undertaker's work and finds that the undertaker has failed to carry out his duty to properly reinstate the street. In these circumstances, the undertaker is required to meet the cost of three inspections: a joint inspection with the authority to see what action is needed to remedy the fault, an inspection during the 'remedial' works and another at their completion.

164.Subsection (1) adds new subsections (2A) and (2B) to section 72 of NRSWA, which allow the Secretary of State to prescribe a fee for each of the three types of inspections. If he does so, the undertaker is obliged to pay the prescribed fee rather than the cost of the inspection. The fee may vary according to the nature of the inspection required, how extensive it is, the place where it is carried out, or any other factor that appears relevant to the Secretary of State.

165.Subsection (2) substitutes a new section 75 of NRSWA, widening the scope of the Secretary of State’s regulation making power. The new section 75(3) will enable the regulations to differentiate between different descriptions of street authority and undertaker. It also allows for different provision to be made according to their previous performance. Regulations can prescribe how and over what period an undertaker's previous performance would be assessed. The new section 75(5) enables regulations to prescribe the disputes which are required to be settled by arbitration.

Section 59: Guidance about inspections

166.NRSWA provides that an undertaker who carries out street works must pay a street authority a fee in respect of certain inspections of the works. It also provides for a street authority to carry out such investigatory works as appear to them to be necessary to ascertain whether the undertaker has complied with his duties with respect to reinstatement. Section 59 inserts a new section 73F into NRSWA. Section 73F (guidance about street authority inspections) provides for the Secretary of State to issue or approve guidance to street authorities exercising their powers to inspect works. Section 73F(2) provides that an authority must have regard to the guidance in carrying out any such inspections. Section 73F(3) clarifies that guidance on the carrying out of investigatory works may be provided under the umbrella of guidance on inspections generally.

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