Streetworks

New Roads and Street Works Act 1991
PART III

One of the problems facing utility contractors and local authorities is understanding the principles Part III of the New Roads and Streetworks Act 1991 (NRASWA), and what each section of the Act infers. The intention of this section is to provide such information, as requested by many visitors to the site. Please bear in mind that Legal Precedent has yet to be set in respect of many of the sections described. Also, the author would not hold any responsibility for anyone using this information provided in pursuance of any legislative action.

Section 48-52 Section 53 Section 54-55 Section 56 Section 57 Section 58 Section 59-60 Section 61-64 Section 65 Section 66 Section 67 Section 68 Section 69 Section 72-73 Section 74 Section 75 Section 76-77 Section 78 Section 79 Section 80 Section 81 Section 82 Section 83-85	Introduction The Streetworks Register Notices Directions on Timing of Works Notice of Emergency Works Restrictions on Undertakers Works Co-ordination of Works Streets Subject to Special Controls Safety Measures Avoidance of Unnecessary Delay or Obstructions Qualifications of Supervisors and Operatives Facilities to be afforded to the Street Authority Works Likely to Affect Other Apparatus in any Street Reinstatement Charge for Occupation of the Highway Where Works are Unreasonably Prolonged Inspection Fees Liability for Costs of Temporary Traffic Management Contribution to the Costs of Making Good Long Term Damage Duty to Maintain Records of Apparatus Duty to Inform Undertakers of the Location of Apparatus Duty to Maintain Apparatus Liability for Damage or Loss Caused Apparatus Affected by Highway, Bridge or Transport Works Other provisions
Sections 48 - 52: Introductory Provisions These sections contain a series of definitions central to the provisions of Part III of the Act. They include: street, street works, undertaker, street authority, street managers and street works license. The definition of emergency works contained in Section 52 is extremely important. It confines emergency works to those works which are needed to stop or prevent circumstances "which are likely to cause danger to persons or property". Efforts to extend this definition during the passage of the legislation through Parliament were unsuccessful, but: The section was amended to cover circumstances in which the person responsible for the work "believes on reasonable grounds" that an emergency is existing or imminent; Regulations under the provisions of Part III will provide for a further category of urgent works. Sub-section 52(3) is also important. It makes it clear that if challenged in the courts the onus is on the undertaker to prove that the works concerned met the definition of emergency works. Section 53: The Street Works Register This section provides the statutory basis for the proposed Computerised Street Works Register - although the CSWR is not specifically referred to. The section requires each street authority to maintain and make available for inspection a street works register. It provides the Secretary of State with extensive powers in relation to: the form of the register and the information contained on it; the possible establishment, maintenance and management of a central register; requiring street authorities to participate in and contribute towards the cost of a central register. The DTp has made it clear that the Secretary of State intends to use his powers under this section to require the register to be a common system in computerised form. This has failed to materialise in the interim due to Digital, who were contracted to set up the system failed to deliver. Some Local Authorities have however, adopted their own systems. Of particular success is SUSIE PHONE used primarily in Scotland and ETON (Electronic Transfer Of Notices) which has been recently introduced. Section 54 and 55 These sections provide the statutory core of new notice requirements and will be supplemented by more detailed regulations. The basis of the new system is that different periods of notice will be required for different types of work based around the statutory norm of a 7 day notice of the starting date for works. Major works and some works on traffic sensitive streets will also be subject to a 1 month advance notice. Minor footway works will be subject only to a 3-day notice of starting date. Section 56: Directions on Timing of Works This section provides street authorities with the power to serve a direction on an undertaker stating the times at which the street works in question can be undertaken. The power is constrained by limiting its use to cases where works are likely to cause "serious disruption to traffic" in circumstances were a direction can reduce that disruption. A code of practice to be approved by the Secretary of State will give further guidance on the circumstances in which this power can be used. Section 57: Notice of Emergency Works Under this section the need to provide advance notice of street works is disapplied in the case of emergency works as defined in Section 52. But there is a requirement to give notice as soon as reasonably practicable, but within no more than 2 hours of work having started. Regulations under Section 55 will provide for a further category of "urgent" works, essentially works to restore supply where there is no danger to persons or property. It is likely that: on streets which are not defined as being traffic sensitive, urgent works will be sole to take place without advance notice but with a requirement to give notice within 2 hours; on streets which are defined as being traffic sensitive, urgent works during the period of traffic sensitivity will have to be the subject of at least 2 hours notice, and authorities will be able to require the start of such works to be delayed. Section 58: Restriction on Undertakers' Work This section is aimed at preventing or restricting streets being dug up soon after they have been resurfaced or closed for major works. A key feature of this section - the definition of the types of work which can trigger a restriction - is left to Regulations. It is clear, however, that the definition will enable a restriction to be applied to footways regardless of whether work is undertaken on the carriageway. Street authorities will be required to give at least three months notice of the works and must begin them within a month of the date specified in the notice. The restriction applies for 12 months. Sub-section 58(5) exempts from the restriction emergency works, works undertaken with the consent of the street authority and "such other cases as may be prescribed". This should be read in conjunction with sub-section 58(7) which prevents an authority from "unreasonably" withholding its consent for works to be undertaken. Arbitration is provided for in cases of dispute. Section 59 and 60 Section 59, imposes a duty on street authorities to co-ordinate street works and works for road purposes. Section 60, requires undertakers to co-operate with the street authority and other undertakers in order to support the co-ordination function. The objectives of the co-ordination and co-operation responsibilities are: to maintain safety; to minimise the inconvenience to people using the street; to protect the structure of the street and the integrity of apparatus in it. to the needs of people with disabilities. Sections 59 and 60 both refer to the approval by the Secretary of State of a Code of Practice giving practical guidance and imposing a duty on street authorities and undertakers to have regard to the contents of the code or codes. In addition, Section 59 enables the Secretary of State to demand information from a street authority which he considers is not properly discharging its general duty of co-ordination. The section also gives the Secretary of State the power to direct an authority to take whatever steps he considers appropriate in order to discharge the co-ordination duty. The Act does not provide specific co-ordination powers, other than the requirement in Section 60 that undertakers must co-operate with the street authority. But a number of provisions in the Act are relevant to the co-ordination responsibility including: Section 56, power to give direction as to timing of street works; Section 58, restriction on work following substantial road works; Section 64, traffic sensitive streets; and Section 66, avoidance of unnecessary delay or obstruction. Section 60 makes it offence for an undertaker to fail to comply with the co-operation duty. Sections 61 to 64: Street Subject to Special Controls These sections provide for the designation of 3 types of special street: traffic sensitive streets - street works on these streets will be subject to longer periods of notice under Sections 54 and 55; the timing of works can be determined by the use of Section 56 directions; streets of special engineering difficulty, protected streets, in which utility apparatus can be placed only with the consent of the street authority. Streets can be designated as being "pedestrian" sensitive: the definition of traffic in Section 105 specifically includes pedestrians. Streets will be defined as being traffic sensitive for particular times of the day (for example during rush hours), during particular times of the year (for example. holiday periods) or on particular days (for example markets or football match days). Section 65: Safety Measures This section requires an undertaker, subject to a criminal penalty, to secure that street works are properly signed and guarded. The section requires undertakers in particular to have regard to the needs of people with a disability. Sub-section 65(3) enables the Secretary of State the issue of an approved code of practice giving practical guidance on signing and guarding. The Code of Practice summarises the content of Chapter 8 of the Traffic Signs Manual but does not refer to works carried out on motorways and duel carriageways. The section provides street authorities with a number of powers in relation to signing and guarding: a traffic authority may issue a direction to an undertaker in relation to the placing, maintenance or operation of traffic signs; if a street authority considers that an undertaker has failed to comply with his duty under this section, the authority may act itself and recover from the undertaker of the costs incurred in doing so. Section 66: Avoidance of Unnecessary Delay or Obstruction This section requires undertakers to carry out and complete street works "with all such dispatch as is reasonably practicable". It backs this duty up in two ways. Firstly an undertaker who fails to comply with the duty is guilty of an offence. Secondly, a street authority which considers that an undertaker has created an obstruction "to a greater extent or longer period than is reasonably necessary" may require the undertaker to take reasonable steps to mitigate or discontinue the obstruction. If an undertaker fails to comply with such a notice the street authority may act and recover the costs of doing so. Section 67: Qualification of Supervisors and Operatives This section requires an undertaker carrying out street works to ensure that those works: are supervised by a person with a supervisors' qualification; are undertaken only when there is a person on site with an operative's qualification. The section provides for the Secretary of State, by regulation, to approve bodies to confer the new qualifications and to determine the circumstances in which the qualifications can be awarded. The HAUC Training & Accreditation Working Party devised the standards for the qualifications with the awarding bodies being, City and Guilds and CABWI. Click here to see an outline of the qualifications Section 68: Facilities to be afforded to Street Authority This section requires undertakers to allow street authorities "reasonable facilities" in order to enable them to ascertain whether an undertaker is complying with the provisions of this part of the Act. This is important in relation to inspections (see Section 75). Section 69: Works Likely to Affect Other Apparatus in the Street This section requires an undertaker to provide people whose apparatus may be affected by its works reasonable facilities for monitoring those works and to comply with reasonable requests by owners of apparatus in order to ensure that it is adequately protected. Section 83 imposes a similar duty on street authorities in relation to highway works. Sections 72 and 73: Reinstatement These sections set out the new duty on undertakers to reinstate the street following street works and the additional responsibilities imposed on undertakers in the context of that duty. Issues specifically dealt with in these sections include: the need for undertakers to begin reinstatement as soon after the completion of any part of the street works as is reasonably practicable and to complete the reinstatement with "all such despatch as is reasonably practicable; the requirement for permanent reinstatement to be undertaken as soon as it is reasonably practicable and no later than six months from the date on which the interim reinstatement was completed; the need for street authorities to be notified when reinstatements have been completed; the need for permanent reinstatement to include the reinstatement of features designed to assist people with a disability; the introduction of the reinstatement specification and code of practice setting performance standards for reinstatements with which undertakers will have to comply; the introduction of guarantee periods during which undertakers will remain responsible for the performance of their reinstatements; the ability of a street authority to rectify reinstatements which are causing a danger to road users and to recover the costs incurred in during so. The reinstatement specification have been issued which sets out the standards for reinstatements. The provisions also empower street authorities to carry out inspections of reinstatements (see also under Section 75 below). Section 73: This section sets out detailed provisions relating to responsibility for reinstatements which have been affected by subsequent street works. Section 74: Charge for Occupation of Highway Where Works are Unreasonably Prolonged This section provides the Secretary of State with a reserve power to introduce a regime under which undertakers would have to pay the highway authority a charge where their works are unreasonably prolonged. The detail of the regime, if implemented, will be set out in regulations, but the system is likely to revolve around a requirement that in the case of works which are likely to take longer than a prescribed period an undertaker would have to inform the authority of the likely duration of the works. The street authority would have the right to object to that period on the grounds that it was not reasonable. If the works took longer than the specified period and the street authority did not accept the case for an extension of the period, the utility would be required to pay a charge for the additional period for which the highway was occupied. Consultation has been promised before a decision is taken to use this power and on the detail of any regulations made if and when the power is used. The consultation process is currently underway and the Regulations and associated codes of practice will be introduced once agreed. Click here to download the consultation document. You will need Adobe Acrobat Reader. Section 75: Inspection Fees This section provides for undertakers to be required to pay street authorities the costs of inspecting a sample of each undertaker's work. Sub-section 72(1) enables a street authority to carry out inspection of works it considers are appropriate to ascertain whether reinstatements are being carried out to the specified standard. The sub-section goes on to state that if a reinstatement is found not to conform with the specification, the undertaker shall bear the cost of investigatory works; if not the street authority must bear its own costs and the cost of any necessary additional reinstatement work.. This means that the street authority can carry out whatever inspections it likes, but it can only claim the costs of sample inspections or of inspections which reveal a defect. Sub-section 72(2) provides that where a defective reinstatement is identified, the undertaker concerned must also bear the cost of three subsequent inspections: a joint inspect-on with the street authority to determine the nature of the remedial work needed an inspection by the street authority of remedial works in progress an inspection by the street authority once remedial works have been completed. Sections 76 and 77: Liability for Costs of Temporary Traffic Management These sections enable the street authorities to recover costs from an undertaker in a number of circumstances arising from street works. These are: costs incurred in notifying the public in relation to the making and issuing of temporary traffic regulation notices costs incurred providing signs in relation to the prohibition or restriction of traffic in conjunction with street works; the cost of the strengthening a highway prior to the diversion of traffic on to it as a result of street works and making good any damage caused by such a diversion. This applies only in relation to traffic diversion on to a highway of a lower classification than the road from which it is being diverted. Section 78: Contributions to the Costs of Making Good Long Term Damage This section provides the Secretary of State with a reserve power to require an undertaker executing street works to contribute to costs incurred or likely to be incurred by the street authority in reconstructing or resurfacing the street. Section 79 This section imposes a duty on undertakers to maintain an accurate record of their buried apparatus in a form to be prescribed in regulations. Section 80: Duty to Inform Undertakers of Location of Apparatus This section requires undertakers and anyone else carrying out street works who find apparatus in the street which is not marked on records, or is incorrectly marked to inform the undertaker to whom the apparatus belongs of its location and nature together with an indication of whether or not it appears to be in use. The section also provides for steps to be taken where it is unclear to whom the apparatus belongs. Section 81: Duty to Maintain Apparatus This section imposes a clear duty on undertakers to ensure that their apparatus is properly maintained. In relation to the impact of the apparatus on the safety and convenience of people using the street and the structure and integrity of the street or highway structure, it requires that maintenance to be to the reasonable satisfaction of the relevant authority. The section requires undertakers to provide such authorities with reasonable facilities to ensure that adequate maintenance is being undertaken. In addition street authorities and other relevant authorities are provided with powers to undertake emergency works in cases to be prescribed in regulations and recover the costs of doing so. Section 82: Liability for Damage or Loss Caused This is an important provision which clarifies the legal position in relation to undertakers' liability for damage caused as a result of, for example, a water mains burst or gas explosion. It requires undertakers to compensate the street authority or any other relevant authority in respect of any damage or loss suffered by the authority in their capacity as a street or other relevant authority. The section makes it clear that the liability applies whether or not the damage or loss was attributable to negligence and notwithstanding the fact that the undertaker was acting in pursuance of a statutory duty. Sections 83 to 85: Apparatus Affected by Highway, Bridge or Transport Works These provisions relate to the impact of works for road purposes on undertakers' apparatus. There are three key elements: An equal requirement to that imposed on undertakers under the provisions of Section 69 to consult owners of apparatus likely to be affected by the works; Arrangements for dealing with circumstances where apparatus is affected by major highway bridge or transport works (known as diversionary works); Arrangements for the sharing of costs where undertakers' apparatus has to be diverted or protected as a result of the works. There is no statutory procedure that applies to the notification of road works (works for roads purposes undertaken by the highway authority), but the street authorities should register their works on a computerised street works register (which is yet to exist) in the same way as utility works and with similar notice periods applying to the appropriate categories of road works. Appropriate longer periods for more major works will be included in the code of practice under Section 84 (see below). Section 83 This section deals with all works for road purposes likely to affect apparatus, makes it clear that no additional requirements can be imposed on a street authority if agreement has already been reached under the provisions of Section 84. Section 84 This section provides the statutory basis for the arrangements in relation to diversionary works set out in the HAUC Diversionary Works Code of Practice. That code of practice requires that undertakers should contribute 18% of the certain costs of diversionary works and the Department of Transport has made it clear that the regulations on allowable costs and cost sharing to be made under the provisions of Section 85 will implement that recommendation. Section 94: DLOs This section deals with the power of street authorities and district councils to undertake street works. This section was amended at a late stage in the Bill's passage through Parliament to enable the Secretary of State to cause this section to cease to have effect upon such date as is specified in a statutory instrument. The Minister for Roads has indicated that the Department intends to consult on a possible date in the near future. Remaining Provisions The remaining provisions deal with a range of detailed technical, consequential and matters of definition. Section 106, for example, includes a useful index of expressions used in the Act and where to look for definitions. In addition, Section 166 underlines the personal accountability of undertakers, directors and staff for offences under the Act. back to top