Part 3

National Underground Asset Register

National Underground Asset Register: England and Wales
56
1
After section 106 of the New Roads and Street Works Act 1991 insert—
Part 3A

National Underground Asset Register: England and Wales

The register

National Underground Asset Register
106A
1
The Secretary of State must keep a register of information relating to apparatus in streets in England and Wales.
2
The register is to be known as the National Underground Asset Register (and is referred to in this Act as “NUAR”).
3
NUAR must be kept in such form and manner as may be prescribed.
4
The Secretary of State must make arrangements so as to enable any person who is required, by a provision of this Act, to enter information into NUAR to have access to NUAR for that purpose.
5
Regulations under subsection (3) are subject to the negative procedure.
6
The obligations of the Secretary of State under subsection (1) and under Article 45A(1) of the Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19)) (keeping of register of information relating to apparatus in streets in Northern Ireland) may be discharged by the keeping of a single register in relation to England, Wales and Northern Ireland.

Initial upload of information into NUAR
106B
1
Before the end of the initial upload period an undertaker having apparatus in a street must enter into NUAR—
a
all information that is included in the undertaker’s records under section 79(1) on the archive upload date, and
b
any other information of a prescribed description that is held by the undertaker on that date.
2
The duty under subsection (1) does not apply in such cases as may be prescribed.
3
Information must be entered into NUAR under subsection (1) in such form and manner as may be prescribed.
4
An undertaker who fails to comply with a duty placed on the undertaker under this section—
a
commits an offence, and
b
is liable to compensate any person in respect of damage or loss incurred by the person in consequence of the failure.
5
A person who commits an offence under subsection (4)(a) is liable on summary conviction to a fine.
6
In criminal or civil proceedings against an undertaker arising out of a failure to comply with a duty under this section, it is a defence for the undertaker to show that all reasonable care was taken to secure that no such failure occurred by—
a
the undertaker and the undertaker’s employees, and
b
any contractor of the undertaker and the contractor’s employees.
7
Section 95 applies in relation to an offence under this section as it applies in relation to an offence under Part 3.
8
For the purposes of subsection (1) the Secretary of State must by regulations—
a
specify a date as “the archive upload date”, and
b
specify a period beginning with that date as the “initial upload period”.
9
Regulations under this section are subject to the negative procedure.

Access to information kept in NUAR
106C
1
The Secretary of State may by regulations make provision for or in connection with making information kept in NUAR available.
2
The regulations may (among other things)—
a
make provision about which information, or descriptions of information, may be made available;
b
make provision about the descriptions of person to whom information may be made available;
c
make provision for information to be made available subject to exceptions;
d
make provision requiring or authorising the Secretary of State to adapt, modify or obscure information before making it available;
e
make provision authorising all information kept in NUAR to be made available to prescribed descriptions of person under prescribed conditions;
f
make provision about the purposes for which information may be made available;
g
make provision about the form and manner in which information may be made available;
h
make provision for or in connection with the granting of licences by the Secretary of State in relation to any non-Crown IP rights that may exist in relation to information made available (including provision about the form of a licence and the terms and conditions of a licence);
i
make provision for information to be made available for free or for a fee;
j
make provision about the amounts of the fees, including provision for the amount of a fee to be an amount which is intended to exceed the cost of the things in respect of which the fee is charged;
k
make provision about how funds raised by means of fees must or may be used, including provision for funds to be paid to persons who are required, by a provision of this Act, to enter information into NUAR.
3
Except as otherwise prescribed and subject to section 106I, processing of information by the Secretary of State in exercise of functions conferred by or under section 106A or this section does not breach—
a
an obligation of confidence owed by the Secretary of State, or
b
any other restriction on the processing of information (however imposed).
4
Regulations under this section are subject to the affirmative procedure.
5
In this section—
- “database right” has the same meaning as in Part 3 of the Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032);
- “non-Crown IP right” means any copyright, database right or other intellectual property right which is not owned by the Crown.

Guidance
106D
1
The Secretary of State must produce guidance for persons described in subsection (2) about how to protect information kept in, or obtained from, NUAR.
2
The persons are persons who, pursuant to regulations made under section 106C, are able to access information kept in NUAR.
3
The Secretary of State may revise or replace the guidance.
4
The Secretary of State must publish the guidance (and any revised or replacement guidance) in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons described in subsection (2).
5
The same guidance may discharge the obligations of the Secretary of State under this section and under Article 45D of the Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19)).

Requirements for undertakers to pay fees and provide information

Fees payable by undertakers in relation to NUAR
106E
1
The Secretary of State may by regulations make provision requiring undertakers having apparatus in a street to pay fees to the Secretary of State for or in connection with the exercise by the Secretary of State of any function conferred by or under this Part.
2
The regulations may—
a
specify the amounts of the fees, or the maximum amounts of the fees, or
b
provide for the amounts of the fees, or the maximum amounts of the fees, to be determined in accordance with the regulations.
3
In making the regulations the Secretary of State must seek to secure that, so far as possible and taking one year with another, combined NUAR income matches combined NUAR expenses.
4
Except where the regulations specify the amounts of the fees—
a
the amounts of the fees must be specified by the Secretary of State in a statement, and
b
the Secretary of State must—
i
publish the statement, and
ii
lay it before Parliament.
5
Regulations under subsection (1) may make provision about—
a
when a fee is to be paid;
b
the manner in which a fee is to be paid;
c
the payment of discounted fees;
d
exceptions to requirements to pay fees;
e
the refund of all or part of a fee which has been paid.
6
Before making regulations under subsection (1), the Secretary of State must consult—
a
such representatives of persons likely to be affected by the regulations as the Secretary of State considers appropriate, and
b
such other persons as the Secretary of State considers appropriate.
7
Subject to the following provisions of this section regulations under subsection (1) are subject to the affirmative procedure.
8
Regulations under subsection (1) that only make provision of a kind mentioned in subsection (2) are subject to the negative procedure.
9
But the first regulations under subsection (1) that make provision of a kind mentioned in subsection (2) are subject to the affirmative procedure.
10
In this section—
- “combined NUAR expenses” means the sum of—
  1. expenses incurred by the Secretary of State in, or in connection with, exercising functions conferred by or under this Part (including expenses not directly connected with the keeping of NUAR), and
  2. expenses incurred by the Secretary of State in, or in connection with, exercising functions conferred by or under Articles 45A to 45I of, and Schedule 2ZA to, the Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19)) (including expenses not directly connected with the keeping of the register kept under Article 45A(1) of that Order);
- “combined NUAR income” means the sum of—
  1. income received by the Secretary of State from fees payable under regulations under subsection (1), and
  2. income received by the Secretary of State from fees payable under regulations under Article 45E(1) of the Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19)).

Providing information for purposes of regulations under section 106E
106F
1
The Secretary of State may by regulations make provision requiring undertakers having apparatus in a street to provide information to the Secretary of State for either or both of the following purposes—
a
assisting the Secretary of State in determining the provision that it is appropriate for regulations under section 106E(1) or a statement under section 106E(4) to make;
b
assisting the Secretary of State in determining whether it is appropriate to make changes to such provision.
2
The Secretary of State may by regulations make provision requiring undertakers having apparatus in a street to provide information to the Secretary of State for either or both of the following purposes—
a
ascertaining whether a fee is payable by a person under regulations under section 106E(1);
b
working out the amount of a fee payable by a person.
3
Regulations under subsection (1) or (2) may require an undertaker to notify the Secretary of State of any changes to information previously provided under the regulations.
4
Regulations under subsection (1) or (2) may make provision about—
a
when information is to be provided (which may be at prescribed intervals);
b
the form and manner in which information is to be provided;
c
exceptions to requirements to provide information.
5
Regulations under subsection (1) or (2) are subject to the negative procedure.

Monetary penalties

Monetary penalties
106G
Schedule 5A makes provision about the imposition of penalties in connection with requirements imposed by regulations under sections 106E(1) and 106F(1) and (2).

Exercise of functions by third party

Arrangements for third party to exercise functions
106H
1
The Secretary of State may make arrangements for a prescribed person to exercise a relevant function of the Secretary of State.
2
More than one person may be prescribed.
3
Arrangements under this section may—
a
provide for the Secretary of State to make payments to the person, and
b
make provision as to the circumstances in which such payments are to be repaid to the Secretary of State.
4
In the case of the exercise of a function by a person authorised by arrangements under this section to exercise that function, a reference in this Part or in regulations under this Part to the Secretary of State in connection with that function is to be read as a reference to that person.
5
Arrangements under this section do not prevent the Secretary of State from exercising a function to which the arrangements relate.
6
Except as otherwise prescribed and subject to section 106I, the disclosure of information between the Secretary of State and a person in connection with the person’s entering into arrangements under this section or exercise of functions to which such arrangements relate does not breach—
a
an obligation of confidence owed by the person making the disclosure, or
b
any other restriction on the disclosure of information (however imposed).
7
Regulations under this section are subject to the affirmative procedure.
8
In this section “relevant function” means a function of the Secretary of State conferred by or under this Part (including the function of charging or recovering fees under regulations under section 106E) other than—
a
a power to make regulations, or
b
a function under section 106E(4) (specifying of fees etc).
9
If a person exercises the function of charging or recovering fees by virtue of arrangements under this section, the person must pay the fees to the Secretary of State, except to the extent that the Secretary of State directs otherwise.

Data protection

Data protection
106I
1
A duty or power to process information that is imposed or conferred by or under this Part does not operate to require or authorise the processing of personal data that would contravene the data protection legislation (but in determining whether processing of personal data would do so, that duty or power is to be taken into account).
2
In this section—
- “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act);
- “personal data” has the same meaning as in that Act (see section 3(2) of that Act).

Supplementary provisions

Regulations under this Part
106J
1
In this Part “prescribed” means prescribed by regulations made by the Secretary of State.
2
Regulations under this Part may make—
a
different provision for different purposes;
b
supplementary and incidental provision.
3
Regulations under this Part are to be made by statutory instrument.
4
Before making regulations under this Part the Secretary of State must obtain the consent of the Welsh Ministers in relation to any provision which would be within the legislative competence of Senedd Cymru if contained in an Act of the Senedd (ignoring any requirement for the consent of a Minister of the Crown imposed under Schedule 7B to the Government of Wales Act 2006).
5
Where regulations under this Part are subject to “the affirmative procedure” the regulations may not be made unless a draft of the statutory instrument containing them has been laid before and approved by a resolution of each House of Parliament.
6
Where regulations under this Part are subject to “the negative procedure” the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of either House of Parliament.
7
Any provision that may be made in regulations under this Part subject to the negative procedure may be made in regulations subject to the affirmative procedure.

Interpretation
106K
1
In this Part the following terms have the same meaning as in Part 3—
- “apparatus” (see sections 89(3) and 105(1));
- “in” (in a context referring to apparatus in a street) (see section 105(1));
- “street” (see section 48(1) and (2));
- “undertaker” (in relation to apparatus or in a context referring to having apparatus in a street) (see sections 48(5) and 89(4)).
2
In this Part “processing” has the same meaning as in the Data Protection Act 2018 (see section 3(4) of that Act) and “process” is to be read accordingly.
2
Section 166 of the New Roads and Street Works Act 1991, so far as relating to Part 3A of that Act (inserted by subsection (1)), extends to England and Wales.
3
In section 167 of that Act (Crown application), after subsection (5) insert—
5A
The provisions of Part 3A of this Act (National Underground Asset Register: England and Wales) bind the Crown.
5B
Nothing in subsection (5A) is to be construed as authorising the bringing of proceedings for a criminal offence against a person acting on behalf of the Crown.
4
Schedule 1 to this Act inserts Schedule 5A into the New Roads and Street Works Act 1991 (monetary penalties).
S. 56 in force at Royal Assent for specified purposes, see s. 142(1)(2)(h)