2009 No. 721
Contracting Out

The Contracting Out (Highway Functions) Order 2009

Made
Coming into force
The Secretary of State for Transport makes the following Order in exercise of the powers conferred by sections 69, 70 and 77(1) of the Deregulation and Contracting Out Act 19941.

In relation to the exercise of powers under section 70 of that Act, the Secretary of State has, as required by section 70(3), consulted with such representatives of local government as the Secretary of State considered appropriate.

In accordance with section 77(2) of that Act, a draft of this Order was laid before, and approved by a resolution of, each House of Parliament.

Citation and commencement1.

This Order may be cited as the Contracting Out (Highway Functions) Order 2009 and shall come into force on the tenth day after the day on which it is made.

Interpretation2.

(1)

In this Order—

“the 1980 Act” means the Highways Act 19802;
“the 1991 Act” means the New Roads and Street Works Act 19913;
“the 1995 Order” means the Contracting Out (Highway Functions) Order 19954;
“the 1999 Order” means the Local Authorities (Contracting Out of Highway Functions) Order 19995;
“the 2001 Order” means the Local Authorities (Contracting Out of Highway Functions) (England) Order 20016;

“highway” has the meaning given in section 328 of the 1980 Act;

“highway authority” has the meaning given in section 17 of the 1980 Act;

“highway connected land” means land which does not form part of a highway but which has been acquired by the Secretary of State or a local highway authority, in connection with a highway, under section 239(1) or (4) or section 246 of the 1980 Act or otherwise;

“local highway authority” has the meaning given in section 329(1) of the 1980 Act; and

“street works” has the meaning given in section 48(3) of the 1991 Act.

(2)

In Schedule 1, any expression used in a reference to a provision of the 1980 Act has the same meaning as it has in that Act.

(3)

In Schedule 2, any expression used in a reference to a provision of the 1991 Act has the same meaning as it has in that Act.

Contracting out of functions3.

(1)

Any function of the Secretary of State which is listed in Schedule 1, 2 or 3 may be exercised by, or by employees of, such person (if any) as may be authorised to do so by the Secretary of State.

(2)

Any function of a local authority which is listed in any of those Schedules may be exercised by, or by employees of, such person (if any) as may be authorised to do so by the authority whose function it is.

Revocation and transitional provisions4.

(1)

Subject to paragraphs (3) and (4), the provisions of the 1995 Order, other than those mentioned in paragraph (2), are revoked.

(2)

The provisions referred to in paragraph (1) are—

(a)

article 1(1);

(b)

the definition of “the 1980 Act” in article 1(2); and

(c)

article 3.

(3)

This paragraph applies in relation to any street works of which notice has been given to the Secretary of State, as the street authority for a street8, under section 54(1), 55(1) or 57 of the 1991 Act before 1st April 2008.

(4)

Where paragraph (3) applies—

(a)

paragraphs 1(o), 11 and 12 of Schedule 2 (and article 3(1) insofar as it relates to them) have no effect; and

(b)

paragraphs 1(l) and 10 of Schedule 2 to the 1995 Order (and article 2 of that Order insofar as it relates to them) shall continue to have effect9.

(5)

Subject to paragraphs (6) and (7), the 1999 Order is revoked.

(6)

This paragraph applies in relation to any street works of which notice has been given to a local highway authority, as the street authority for a street, under section 54(1), 55(1) or 57 of the 1991 Act before 1st April 2008.

(7)

Where paragraph (6) applies—

(a)

paragraphs 1(o), 11 and 12 of Schedule 2 (and article 3(2) insofar as it relates to them) have no effect; and

(b)

paragraphs 1(1) and 10 of Schedule 2 to the 1999 Order (and article 2 of that Order insofar as it relates to them) shall continue to have effect10.

(8)

The 2001 Order is revoked.

(9)

Subject to paragraph (10), article 3 (contracting out of highway functions) of the Transport for London (Best Value) (Contracting Out of Investment and Highway Functions) Order 200611 is revoked.

(10)

Notwithstanding the revocation of article 3 of that Order, anything done, or having effect as if done, under that article shall continue to have effect.

Signed by authority of the Secretary of State for Transport

Paul Clark
Parliamentary Under Secretary of State
Department for Transport

SCHEDULE 1FUNCTIONS CONFERRED BY OR UNDER THE 1980 ACT OR REGULATIONS MADE UNDER THAT ACT

Article 3

1.

Subject to paragraph 9 and except as provided in sub-paragraphs (d), (x), (jj) and (mm), functions conferred on the Secretary of State or a local highway authority, as the highway authority12 for a highway, in relation to that highway or to highway connected land, by or under any of the following provisions of the 1980 Act—

(a)

section 41(1) and (1A)13 (duty to maintain highways maintainable at public expense);

(b)

section 6214 (general power of improvement);

(c)

section 6415 (dual carriageways and roundabouts);

(d)

section 65 (cycle tracks), but not including the functions of a local highway authority;

(e)

section 6616 (footways and guard-rails etc for publicly maintainable highways);

(f)

section 68 (refuges);

(g)

section 69(1)17 (subways);

(h)

section 70 (footbridges over highways);

(i)

section 71 (margins for horses and livestock);

(j)

section 75(1) and (2) (variation of widths of carriageways and footways);

(k)

section 76 (levelling of highways);

(l)

section 77 (alteration of levels);

(m)

section 78 (cutting off of corners);

(n)

section 80(1), (2), and (3)18 (power to fence highways);

(o)

section 81 (provision of highway boundary posts);

(p)

section 84 (maintenance of cattle-grids and by-passes);

(q)

section 90 (protection of bridges and railways);

(r)

section 90G19 (powers to carry out traffic calming works);

(s)

section 90GA(2) and (3)20 (special procedure for certain traffic calming works in London);

(t)

section 92 (reconstruction of bridge maintainable at public expense);

(u)

section 96 (powers of highway and local authorities to plant trees, lay out grass verges etc);

(v)

section 97 (lighting of highways);

(w)

section 99 (metalling of highways);

(x)

section 100(1) to (5)21, (6)22 and (6B)23 (drainage of highways), except insofar as they relate to the power to enter premises under section 168 of the Water Industry Act 199124 (entry for works purposes);

(y)

section 101 (power to fill in roadside ditches etc);

(z)

section 102 (provision of works for protecting highways against hazards of nature);

(aa)

section 103 (provision of posts to indicate depth of flood water);

(bb)

section 104 (mitigating nuisance of dust);

(cc)

section 105 (power to improve road-ferries);

(dd)

section 11425 (provision of public conveniences by county council for users of roads for which the Council is the highway authority);

(ee)

section 115H(1)26 (duties to consult or obtain consent of other authorities);

(ff)

section 133 (damage to footways of streets by excavations);

(gg)

section 139(1) and (2) (control of builders’ skips);

(hh)

section 140(2) (removal of builders’ skips);

(ii)

section 141(2) (restriction on planting of trees etc in or near carriageway);

(jj)

section 150(1), (2) and (4) (duty to remove snow, soil etc from highway), except insofar as they relate to an obstruction in a highway which is the property of any person;

(kk)

section 167(2), (5) and (6) (powers relating to retaining walls near streets);

(ll)

section 169(1), (2), (3) and (4)27 (control of scaffolding on highways);

(mm)

section 171 (control of deposit of building materials and making of excavations in streets), except insofar as the functions conferred by or under section 171(7) relate to the removal of the property of any person; and

(nn)

section 178(1) (restriction on placing rails, beams etc over highways).

2.

Subject to paragraph 9, functions conferred on the Secretary of State by or under any of the following provisions of the 1980 Act—

(a)

section 63 (relief of main carriageway of trunk road from local traffic); and

(b)

section 112(3) and (5)28 (provision of picnic sites and public conveniences for users of trunk roads), except insofar as the functions in subsection (5) relate to the provision of public sanitary conveniences.

3.

Subject to paragraph 9, functions conferred on the Secretary of State or a local highway authority, by or under section 28829 of the 1980 Act (power to require gas and water pipes to be moved), insofar as that provision applies to the exercise of any other function listed in this Schedule.

4.

Subject to paragraph 9, functions conferred on the Secretary of State or a local highway authority, as a competent authority, by virtue of their being the highway authority for a highway, by or under any of the following provisions of the 1980 Act—

(a)

section 143(1)30 (power to remove structures from highways);

(b)

section 154(1) and (2)31 (cutting or felling etc trees etc that overhang or are a danger to roads or footpaths); and

(c)

section 18532 (power to install refuse or storage bins in streets).

5.

Functions conferred on a local authority by section 144(4)(b)33 of the 1980 Act (power to erect flagpoles etc on highways).

6.

Functions conferred on a local authority by section 167(5) of the 1980 Act (powers relating to retaining walls near streets), insofar as that authority is a local highway authority.

7.

Functions conferred on a London borough council by or under section 301A(2) and (3)34 of the 1980 Act (London borough council exercising powers so as to affect another authority’s roads), insofar as those provisions apply to the exercise of any other function listed in this Schedule.

8.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, by or under any of the following provisions of the Walkways Regulations 197335—

(a)

regulation 3(1) (modification of statutory provisions);

(b)

regulation 4(1) (rights of statutory undertakers etc);

(c)

regulation 5(3) (periodic and temporary closure of walkways); and

(d)

regulation 6 (stopping up of walkway by building owner).

9.

(1)

Paragraphs 1 to 4 shall not include—

(a)

any function conferred by or under section 294 of the 1980 Act (entry, etc, of premises by highway authority or council for certain purposes);

(b)

any function of the Secretary of State to the extent that the function confers a power or right of entry into or on any premises or land of which the Secretary of State is not the owner or occupier; or

(c)

any function of a local highway authority to the extent that the function confers a power or right of entry into or on any premises or land of which the local highway authority is not the owner or occupier.

(2)

Where section 338 of the 1980 Act (saving for works, etc, of dock, harbour and canal undertakers) or 339 of that Act36 (saving for works etc of drainage authorities etc) applies to the exercise of any functions listed in paragraphs 1 to 4, those functions shall be construed as including any additional requirements imposed by those sections.

SCHEDULE 2FUNCTIONS CONFERRED BY OR UNDER THE 1991 ACT OR REGULATIONS MADE UNDER THAT ACT

Article 3

1.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street, by or under any of the following provisions of the 1991 Act—

(a)

section 5337 (the street works register);

(b)

section 54(1), (4), (4A) and (4B)38 (advance notice of certain works);

(c)

section 55(1), (4) and (8)39 (notice of starting date of works);

(d)

section 56(1), (1A) and (4)40 (power to give directions as to timing of street works);

(e)

section 56A(1), (3) and (8)41 (power to give directions as to placing of apparatus);

(f)

section 57(2)42 (notice of emergency works);

(g)

section 5843 (restriction on works following substantial road works);

(h)

section 58A and Schedule 3A, paragraphs 1(1), 2(1) and (4), 3(1) and 4(1), (6), (8), (9) and (10), and 5(2)(b) and (3)44 (restriction on works following substantial street works);

(i)

section 5945 (general duty of street authority to co-ordinate works);

(j)

section 60(1) (general duty of undertakers to co-operate);

(k)

section 61(protected streets), except for sub-paragraph (b) in the second paragraph of subsection (1);

(l)

section 65(5) (safety measures);

(m)

section 66(3) and (4) (avoidance of any unnecessary delay or obstruction);

(n)

section 68(1) (facilities to be afforded to street authority);

(o)

section 70(3) and (4A)46 (duty of undertaker to reinstate);

(p)

section 7247 (powers of street authority in relation to reinstatement);

(q)

section 7548 (inspection fees);

(r)

section 81 (duty to maintain apparatus);

(s)

section 82(1) (liability for damage or loss caused);

(t)

section 87(4) (prospectively maintainable highways); and

(u)

section 94(1) and (2) (power of street authority or district council to undertake street works).

2.

Functions conferred on the Secretary of State or a local highway authority, as the traffic authority49 for a highway, by section 65(2) of the 1991 Act (safety measures).

3.

Functions conferred on the Secretary of State or a local highway authority, as a relevant authority, other than a street authority, by or under any of the following provisions of the 1991 Act—

(a)

section 81 (duty to maintain apparatus); and

(b)

section 82(1) (liability for damage or loss caused).

4.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway or as the bridge authority for a bridge, by or under any of the following provisions of the 1991 Act—

(a)

section 8350 (works for road purposes likely to affect apparatus in the street);

(b)

section 84(1), (3) and (4) (measures necessary where apparatus affected by major works);

(c)

section 85(1) and (3) (sharing of cost of necessary measures); and

(d)

section 88(4)51 and (5) (bridges, bridge authorities and related matters).

5.

Functions conferred on the Secretary of State or a local highway authority, as the responsible authority, by or under section 90 of the 1991 Act52 (provisions as to reinstatement of sewers, drains or tunnels).

6.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street, by or under any of the following—

(a)

regulation 3 of the Street Works (Inspection Fees) (England) Regulations 200253 (undertaker required to pay the street authority a fee for each chargeable inspection carried out by the street authority in England); and

(b)

regulation 3 of the Street Works (Inspection Fees) (Wales) Regulations 200654 (undertaker required to pay the street authority a fee for each chargeable inspection carried out by the street authority in Wales).

7.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street, by or under regulation 3 of the Street Works (Reinstatement) Regulations 199255 (street authority’s power to give notice affecting the standard of reinstatement required).

8.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, as the bridge authority for a bridge or, in the case of a local highway authority, as the transport authority for a transport undertaking, by or under any provision of—

(a)

the Street Works (Sharing of Costs of Works) (England) Regulations 200056; and

(b)

the Street Works (Sharing of Costs of Works) (Wales) Regulations 200557.

9.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street, under regulation 3 or 4 of the Street Works (Maintenance) Regulations 199258 (street authority’s power to execute works to enable it to inspect an undertaker’s apparatus and to execute any emergency works needed).

10.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, under any provision of the Street Works Register (Registration Fees) Regulations 199959 (undertaker to pay the appropriate highway authority a fee on the registration of prescribed information).

11.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street in England, the highway authority for a highway in England or the bridge authority for a bridge in England by or under any of the following provisions of the Street Works (Registers, Notices, Directions and Designations) (England) Regulations 200760—

(a)

regulation 4(4) and (5) (street works registers);

(b)

regulation 6 (manner of service of notices);

(c)

regulation 7 (manner of service of copy notices);

(d)

regulation 9(1), (2) and (3) (notice of starting date of works);

(e)

regulation 10(1) and (2) (procedure for giving directions under section 56 or 56A);

(f)

regulation 11(3), (5) and (9) (restriction on works following substantial road works);

(g)

regulation 12(3), (4) and (7) (restriction on works following substantial street works);

(h)

regulation 14(3) (designation of streets as protected);

(i)

regulation 15(3) (designation of streets as having special engineering difficulties); and

(j)

regulation 16(6) (designation of streets as traffic-sensitive).

12.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street in Wales, the highway authority for a highway in Wales or the bridge authority for a bridge in Wales by or under any of the following provisions of the Street Works (Registers, Notices, Directions and Designations) (Wales) Regulations 200861—

(a)

regulation 4(4) and (5) (street works registers);

(b)

regulation 6 (manner of service of notices);

(c)

regulation 7 (manner of service of copies of notices);

(d)

regulation 9(1), (2) and (3) (notice of starting date of works);

(e)

regulation 10(1) and (2) (procedure for giving directions under section 56 or 56A);

(f)

regulation 11(3), (5) and (9) (restriction on works following substantial road works);

(g)

regulation 12(3), (4) and (7) (restriction on works following substantial street works);

(h)

regulation 14(3) (designation of streets as protected);

(i)

regulation 15(3) (designation of streets as having special engineering difficulties); and

(j)

regulation 16(6) (designation of streets as traffic-sensitive).

13.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street in England, under regulation 5(1) or (6) of the Street Works (Fixed Penalty) (England) Regulations 200762 (manner of service of a fixed penalty notice or a notice withdrawing a fixed penalty notice).

14.

Functions conferred on the Secretary of State or a local highway authority, as the street authority for a street in Wales, under regulation 5(1) or (6) of the Street Works (Fixed Penalty) (Wales) Regulations 200863 (manner of service of a fixed penalty notice or a notice withdrawing a fixed penalty notice).

15.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway in England, by or under any of the following provisions of the Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) Regulations 200164—

(a)

regulation 4 (notices);

(b)

regulation 5(1) (prescribed charges and prescribed periods);

(c)

regulation 6 (estimates of duration of works); and

(d)

regulation 7 (further and revised estimates of duration of works).

SCHEDULE 3FUNCTIONS CONFERRED BY MISCELLANEOUS ENACTMENTS

Article 3

1.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, by or under section 15365 of the Public Health Act 187566 (power to require gas and water pipes to be moved).

2.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, by or under section 1467 of the Public Health Act 192568 (public drinking fountains, seats, etc, in streets).

3.

Functions conferred on the Secretary of State or a local highway authority, by or under section 5(1) or (2) of the Local Government (Miscellaneous Provisions) Act 195369 (consents to exercise of powers under section 4 (provision of omnibus shelters, etc)).

4.

Functions conferred on the Secretary of State or a local highway authority, by or under section 5(1) or (2) of the Parish Councils Act 195770 (provisions as to consents and access).

5.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, by or under any of the following provisions of the Public Health Act 196171—

(a)

section 45 (attachment of street lamps to buildings); and

(b)

section 8172 (summary recovery of damages for negligence).

6.

Functions conferred on the Secretary of State or a local highway authority, by or under section 5(6) of, and Schedule 1 to, the Litter Act 198373 (litter bins in England and Wales).

7.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, by or under section 72(1) of the Road Traffic Regulation Act 198474 (powers exercisable by parish or community councils).

8.

Functions conferred on the Secretary of State or a local highway authority, as the highway authority for a highway, by or under section 4 (provision of barriers in cycle tracks, etc) or 5(1) (compensation) of the Cycle Tracks Act 198475.
EXPLANATORY NOTE
(This note is not part of the Order)

Subject to transitional provisions, this Order replaces, with modifications, the Contracting Out (Highway Functions) Order 1995, the Local Authorities (Contracting Out of Highway Functions) Order 1999, the Local Authorities (Contracting Out of Highway Functions) (England) Order 2001 and article 3 of the Transport for London (Best Value) (Contracting Out of Investment and Highway Functions) Order 2006.

It continues to enable both the Secretary of State and a local authority (including Transport for London) to authorise another person, or that person’s employees, to exercise certain of their functions in relation to maintenance, improvement and other dealings with highways, mainly in their respective capacities as a highway authority.

An impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen. An Explanatory Memorandum has been prepared and is available alongside the instrument on the OPSI website. The Memorandum may also be found by visiting the Department for Transport website at www.dft.gov.uk.