The Litter Etc. (Transitional Provisions) Regulations 1991

Highway cleaning: functional work

5.—(1) This regulation applies where–

(a) either–

(i) section 6 of the 1988 Act applies to relevant functional work if it is carried out by a local authority on 1st April 1991; or

(ii) that section does not so apply, but a local authority has, before that date, carried out relevant functional work in respect of which each of the six conditions set out in section 7 of the 1988 Act is fulfilled;

(b) by virtue of section 89(2) of the 1990 Act, it is the duty of that local authority to ensure that a highway is, so far as is practicable, kept clean;

(c) the functional work carried out by that local authority before 1st April 1991 did not include the cleaning of that highway; and

(d) until section 89(2) of the 1990 Act came into force, it was the duty of a different authority to clean that highway.

(2) Subject to paragraph (3), where this regulation applies, until the material date, section 6 of the 1988 Act shall not apply to relevant functional work carried out by the local authority on or after 1st April 1991 in order to comply, in respect of such a highway as is mentioned in paragraph (1), with its duty under section 89(2) of the 1990 Act; but, until the material date–

(a) the authority shall keep a separate account for each financial year as regards all such work which is carried out by it in that year; and

(b) no item relating to that work may be entered in any account kept under section 9 of the 1988 Act.

(3) Where–

(a) in consequence of the 1990 Act, it has ceased to be the duty of the highway authority for the highway concerned to clean that highway;

(b) there is in force on 31st March 1991 a contract between the highway authority and an independent contractor which provides for the contractor to clean that highway; and

(c) if it had not ceased to be the duty of the highway authority to clean that highway, that contract would have continued in force after that date,

paragraph (2) shall apply only if the local authority has used its best endeavours to enter into satisfactory arrangements with the contractor for the cleaning of the highway during the period in which the contract would have remained in force but has been unable to do so.

(4) In paragraph (2) “the material date” means the date on or after which, if the local authority concerned proposed to continue to carry out relevant functional work, it would be prohibited by section 6 of the 1988 Act from doing so unless it had carried out a further competitive tendering exercise in the course of which each of the first five conditions set out in section 7 of that Act was fulfilled in respect of that work.

(5) Where this regulation applies in the circumstances described in paragraph (1)(a)(ii), and the local authority carries out relevant functional work to which, by virtue of paragraph (2), section 6 of the 1988 Act does not apply, that section shall apply to any other relevant functional work which is carried out on or after 1st April 1991 by that authority and in respect of which the six conditions set out in section 7 of that Act are fulfilled.