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STATUTORY INSTRUMENTS
2007 No. 287 (N.I. 1)
NORTHERN IRELAND
The Street Works (Amendment) (Northern Ireland) Order 2007
| |
Made |
7th February 2007 | |
| |
Coming into operation in accordance with Article 1(2) to (4) |
ARRANGEMENT OF ORDER
Introductory
Permit scheme
Registers and records
Notice and co-ordination of works
Requirements as to execution of street works
Reinstatement
Inspections
Charges, fees, contributions, etc.
Duties of undertakers with respect to apparatus
Enforcement
Miscellaneous
SCHEDULES:
At the Court at Buckingham Palace, the 7th day of February 2007
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order in Council has been approved by resolution of each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c.1) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:–
Introductory
Title and commencement
1.
—(1) This Order may be cited as the Street Works (Amendment) (Northern Ireland) Order 2007.
(2) This Article and Article 2 come into operation one week after the day on which this Order is made.
(3) The remaining provisions of this Order come into operation on such day or days as the Department for Regional Development may by order appoint.
(4) An order under paragraph (3) may contain such transitional or saving provisions as the Department thinks appropriate.
Interpretation
2.
—(1) The Interpretation Act (Northern Ireland) 1954 (c.33) applies to this Order as it applies to an Act of the Assembly.
(2) In this Order "the 1995 Order" means the Street Works (Northern Ireland) Order 1995 (NI 19).
Permit scheme
Permit scheme
3.
In the 1995 Order after Article 12 there is inserted—
“Permit scheme
12A.
—(1) The Department may by regulations make provision for, or in connection with, a scheme (a "permit scheme") which is designed to control the carrying out of specified street works in specified streets.
(2) The permit scheme may (in particular) include provision—
(a) for or in connection with requiring a permit to be obtained before specified street works are carried out (including provision as to the persons who are required to obtain permits),
(b) for or in connection with the issue of permits (including provision with respect to applications for permits, provision for cases in which there is to be an entitlement to the issue of a permit and provision with respect to cases in which permits are to be deemed to be issued),
(c) as to cases in which specified street works may be carried out without a permit,
(d) for or in connection with the imposition of conditions which are to apply in relation to the carrying out of specified street works (including provision for or in connection with the attachment of such conditions to permits),
(e) for or in connection with the review or variation of permits or such conditions (including provision with respect to applications for such variations);
(f) disapplying or modifying statutory provisions to the extent specified.
(3) Regulations under this Article may make provision—
(a) as to the criteria to be taken into account in the case of decisions with respect to the issue, review or variation of permits or decisions with respect to the imposition, review or variation of conditions under the scheme,
(b) for or in connection with the determination, or facilitating the determination, of disputes (including provision with respect to the appointment of persons to determine, or facilitate the determination of, disputes),
(c) for or in connection with appeals to the planning appeals commission,
(d) as to the action which may be taken if works are carried out without a permit or if any conditions are not complied with,
(e) for or in connection with the creation, in prescribed cases (including prescribed cases where works are carried out without a permit or in breach of any conditions), of a criminal offence triable summarily and punishable with a fine not exceeding level 5 on the standard scale,
(f) for or in connection with excluding or limiting the liability of prescribed undertakers in prescribed cases.
(4) Regulations under this Article may make provision for or in connection with the giving of fixed penalty notices (including, in particular, provision applying Schedule 2A with or without modifications) in relation to any offence created by the regulations; and for this purpose "fixed penalty notice" means a notice offering a person the opportunity of discharging any liability to conviction for an offence by payment of a penalty.
(5) Regulations under this Article may make provision for or in connection with the payment of a fee in respect of any one or more of the following—
(a) an application for a permit,
(b) the issue of a permit,
(c) an application for the variation of a permit or the conditions attached to a permit,
(d) the variation of a permit or the conditions attached to a permit.
(6) Provision made under paragraph (5) may include provision as to—
(a) the amount or maximum amount of any fee,
(b) cases in which fees are not to be payable or are to be repaid,
(c) cases in which fees may be discounted,
(d) the time and manner of making payment of fees,
(e) the application of sums paid by way of fees.
(7) Regulations under this Article may make provision—
(a) for or in connection with the creation and maintenance of a register of permits,
(b) with respect to access to information contained in any such register (including provision restricting such access).
(8) The first regulations under this Article may not be made unless a draft of them has been laid before and approved by a resolution of the Assembly.
(9) In this Article "specified" means specified, or of a description specified, in the permit scheme.
Registers and records
The street works register
4.
—(1) Article 13 of the 1995 Order (the street works register) is amended as follows.
(2) In paragraph (1)—
(a) after "respect to" (in the second place they appear) there is inserted "(a)"; and
(b) at the end there is added
“(b) such descriptions of—
(i) apparatus placed, or proposed to be placed, in the street,
(ii) builders' skips (within the meaning of Article 96 of the Roads Order), or of building materials, rubbish or other things deposited, or proposed to be deposited, in the street; or
(iii) scaffolding or other structures which are erected, or proposed to be erected, in the street,
as may be prescribed.".
Duty to inspect records
5.
—(1) After Article 13 of the 1995 Order (the street works register) there is inserted—
"
Duty to inspect records
13A.
—(1) The Department may make provision by regulations requiring an undertaker proposing to execute street works of a prescribed description to inspect prescribed statutory records before commencing the street works.
(2) The regulations may provide for the manner in which an inspection of any statutory records is to be carried out.
(3) The regulations may prescribe evidence which may be relied on by the undertaker to demonstrate that he has carried out an inspection required by the regulations.
(4) The regulations may in particular require the undertaker—
(a) to be in possession of prescribed evidence before commencing the street works; and
(b) to produce, in such manner as may be prescribed, prescribed evidence to the street authority either at the request of the authority or at or by such time as may be prescribed.
(5) The regulations may provide for the cases or circumstances in which a requirement under paragraph (1) or (4) does or does not apply.
(6) The regulations may create a summary offence, punishable with a fine not exceeding level 5 on the standard scale, in respect of any contravention by an undertaker of a requirement of the regulations.
(7) In this Article "statutory record" means any register or other record kept in pursuance of a requirement imposed by—
(a) a statutory provision; or
(b) a licence or other instrument having effect under or by virtue of a statutory provision.".
Notice and co-ordination of works
Notices of street works
6.
—(1) In Article 14 of the 1995 Order (advance notice of certain works)—
(a) in paragraph (2) for "contain such" there is substituted "state the date on which it is proposed to begin the works and shall contain such other";
(b) after paragraph (3) there is inserted—
"
(3A) If an undertaker who has given advance notice under this Article has not, before the starting date specified in the notice, given to the street authority a notice under Article 15 in respect of the works, he shall within such period as may be prescribed give to that authority a notice containing such information as may be prescribed.
(3B) An advance notice under this Article shall cease to have effect in relation to the proposed works (so that paragraph (1) applies again in relation to the works) if those works are not substantially begun before the end of such period beginning with the starting date specified in the notice as may be prescribed, or such further period as the street authority may allow.".
(2) In Article 15 of that Order (notice of starting date of works) after paragraph (7) there is inserted—
"
(8) If a notice under this Article ceases to have effect the undertaker shall, within such period as may be prescribed, give a notice containing such information as may be prescribed to those to whom the notice under this Article was required to be given.
(9) An undertaker who fails to give notice in accordance with paragraph (8) commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.".
(3) In Article 51 of that Order (works affecting level crossings or tramways) in paragraph (2) for "(7)" there is substituted "(9)".
Directions relating to timing of street works
7.
—(1) Article 16 of the 1995 Order (power to give directions as to timing of street works) is amended as follows.
(2) In paragraph (1)—
(a) in sub-paragraph (b), after "at certain times" there is inserted "or on certain days (or at certain times on certain days)";
(b) after "the times" there is inserted "or days (or both)".
(3) After paragraph (1) there is inserted—
"
(1A) Where it appears to a street authority—
(a) that subsisting street works are causing or are likely to cause serious disruption to traffic, and
(b) that the disruption would be avoided or reduced if the works were to continue to be carried out only at certain times or on certain days (or at certain times on certain days),
the authority may give the undertaker such directions as may be appropriate as to the times or days (or both) when the works may or may not continue to be carried out.".
(4) After paragraph (3) there is inserted—
"
(3A) An undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is attributable to a direction under this Article.".
Directions as to placing of apparatus
8.
In the 1995 Order, after Article 16 there is inserted—
"
Power to give directions as to placing of apparatus
16A.
—(1) Where—
(a) an undertaker is proposing to execute street works consisting of the placing of apparatus in a street ("street A"),
(b) placing the apparatus in street A is likely to cause disruption to traffic, and
(c) it appears to the street authority that—
(i) there is another street ("street B") in which the apparatus could be placed, and
(ii) the conditions in paragraph (2) are satisfied,
the authority may by direction require the undertaker not to place the apparatus in street A (but may not require him to place the apparatus in street B).
(2) The conditions referred to in paragraph (1)(c) are that—
(a) disruption to traffic would be avoided or reduced if the apparatus were to be placed in street B;
(b) placing the apparatus in street B would be a reasonable way of achieving the purpose for which the apparatus is to be placed; and
(c) it is reasonable to require the undertaker not to place the apparatus in street A.
(3) A direction under this Article may be varied or revoked by a further such direction.
(4) The procedure for giving a direction under this Article shall be prescribed.
(5) The Department may by regulations make provision for or in connection with appeals to the planning appeals commission against directions under this Article.
(6) An undertaker who executes works in contravention of a direction under this Article commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(7) An undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is attributable to a direction under this Article.
(8) The Department may issue or approve for the purposes of this Article a code of practice giving practical guidance as to the exercise by street authorities of the power conferred by this Article; and in exercising that power street authorities shall have regard to the code of practice.".
Restriction on works following substantial road works
9.
—(1) Article 18 of the 1995 Order (restriction on works following substantial road works) is amended as specified in paragraphs (2) to (8).
(2) In paragraph (1), for the words "12 months" there is substituted "prescribed period".
(3) In paragraph (2), after "prescribed" there is inserted "form and" and for "3 months" there is substituted "such period as may be prescribed".
(4) In paragraph (3) after sub-paragraph (e) there is inserted
“(f) any other person of a prescribed description;"
(and the word "and" after sub-paragraph (d) is omitted).
(5) In paragraph (4), for sub-paragraphs (a) and (b) there is substituted "within such period as may be prescribed".
(6) In paragraph (6), at the beginning of sub-paragraph (b) there is inserted "if he is convicted of an offence under this paragraph".
(7) In paragraph (7), for "by arbitration" there is substituted "in the prescribed manner".
(8) After that paragraph there is inserted—
"
(7A) Regulations under paragraph (7) may in particular make provision for the question referred to in that paragraph to be settled—
(a) by arbitration;
(b) by the planning appeals commission on appeal by the undertaker.".
Restriction on works following substantial street works
10.
—(1) After Article 18 of the 1995 Order there is inserted—
"
Restriction on works following substantial street works
18A.
Schedule 1A shall have effect.".
(2) After Schedule 1 to that Order there is inserted Schedule 1A as set out in Schedule 1 to this Order.
(3) In Article 17 of that Order (notice of emergency works)—
(a) in paragraph (1) after "works)" there is inserted "or paragraph 2(1)(d) or 3(1) of Schedule 1A (notification of proposed works or directions as to timings of works)";
(b) in paragraph (2) after "is" there is inserted "(or would, but for paragraph 2(6) of Schedule 1A, be)".
(4) In Article 24 of that Order (traffic-sensitive streets) in paragraph (1) after "works)" there is inserted "or paragraph 2 of Schedule 1A".
(5) In Article 34 of that Order (charge for occupation of road where works unreasonably prolonged) in paragraph (3)(b) after "date)" there is inserted "or notification under paragraph 2(1)(d) of Schedule 1A (notification of proposed works)".
(6) In Article 47 of that Order (provisions relating to bridges) in paragraph (1) after "date)" there is inserted ", or making a notification under paragraph 2(1)(d) of Schedule 1A (notification of proposed works),".
(7) In Article 48 of that Order (provisions relating to sewers) in paragraph (1) after "date)" there is inserted ", or making a notification under paragraph 2(1)(d) of Schedule 1A (notification of proposed works),".
Duty of street authority to co-ordinate works
11.
—(1) Article 19 of the 1995 Order (general duty of street authority to co-ordinate works) is amended as follows.
(2) In paragraph (1) after "purposes)" there is inserted "and the carrying out of relevant activities".
(3) In paragraph (2) after "works" there is inserted "or relevant activities".
(4) After paragraph (6) there is inserted—
"
(7) In this Article "relevant activities" means any activity, other than the execution of works in the street or the use of the street by traffic (including pedestrians), which—
(a) involves the temporary occupation or use of space in a street;
(b) is subject to regulation by the street authority by virtue of provision made by or under any statutory provision other than this Order; and
(c) is prescribed.".
Requirements as to execution of street works
Qualifications of supervisors and operatives
12.
—(1) Article 27 of the 1995 Order (qualifications of supervisors and operatives) is amended as follows.
(2) After paragraph (1) there is inserted—
(3) After paragraph (2) there is inserted—
"
(2A) A street authority may (unless the case is one excepted from paragraph (2)) by notice require an undertaker executing street works—
(a) to notify it of the name of—
(i) a person whose presence on site at any time specified in the notice (being a time when the works were in progress) enabled the undertaker to comply with his duty under paragraph (2); or
(ii) each person whose presence on site during the progress of the works enabled the undertaker to comply with his duty in paragraph (2); and
(b) to provide it with such evidence of the requisite qualification of each person named as may be prescribed.
(2B) A notice under paragraph (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.
(2C) The undertaker shall comply with a notice under paragraph (1A) or (2A) within such period as may be prescribed.".
(4) In paragraph (3) for "or (2)" there is substituted ", (2) or (2C)".
(5) In paragraph (4), after sub-paragraph (b) there is inserted
“(c) the form of any document to be issued by an approved body to certify or otherwise show that a qualification has been conferred on any person.".
Reinstatement
Duty to notify street authority of reinstatement
13.
—(1) Article 30 of the 1995 Order (duty of undertaker to reinstate) is amended as follows.
(2) After paragraph (1) there is inserted—
"
(1A) The reinstatement required by paragraph (1) may be permanent or interim.".
(3) For paragraphs (3) and (4) there is substituted—
"
(3) He shall within 7 working days from the date on which the reinstatement is completed give notice to the street authority of that completion—
(a) stating whether the reinstatement is permanent or interim; and
(b) giving such other information about the reinstatement as may be prescribed.
(4) If the reinstatement is interim, he shall complete the permanent reinstatement of the street as soon as reasonably practicable, and in any event within 6 months from the date on which the interim reinstatement was completed.
(4A) He shall, within 7 working days from the date on which the permanent reinstatement required by paragraph (4) is completed, give notice to the street authority of that completion, giving such other information about the reinstatement as may be prescribed.
(4B) The Department may by regulations modify the period specified in paragraph (3), (4) or (4A).".
Inspection fees following failure to reinstate
14.
In Article 32 of the 1995 Order (powers of street authority in relation to reinstatement) after paragraph (2) there is inserted—
"
(2A) The Department may prescribe a fee in respect of a prescribed description of inspection mentioned in paragraph (2); and if it does so that paragraph has effect, in relation to that description of inspection, as if for "he shall bear the cost of" there were substituted "he shall pay the prescribed fee in respect of".
(2B) The power to make different provision under paragraph (2A) for different cases includes power—
(a) to make different provision for different descriptions of street authority or undertakers;
(b) to prescribe different fees by reference to the nature or extent of the inspection, the place where it is carried out and such other factors as appear to the Department to be relevant.".
Notices requiring remedial works relating to reinstatements
15.
—(1) In Article 32 of the 1995 Order (powers of street authority in relation to reinstatement)—
(a) in paragraph (3), for "of not less than 7 working days" there is substituted ", not being less than such period as may be prescribed,"; and
(b) after paragraph (3) there is inserted—
"
(3A) Cases may be prescribed under paragraph (3) in which no minimum period applies.".
(2) In Article 49 of the 1995 Order (provisions as to reinstatement of sewers, etc.)—
(a) in paragraph (2), for "of not less than 7 working days" there is substituted ", not being less than such period as may be prescribed,"; and
(b) after paragraph (2) there is inserted—
"
(2A) Cases may be prescribed under paragraph (2) in which no minimum period applies.".
Power of street authority to require undertaker to re-surface street
16.
After Article 33 of the 1995 Order there is inserted—
"
Re-surfacing
Power to require undertaker to re-surface street
33A.
—(1) In prescribed circumstances, the street authority for a street may by notice (a "re-surfacing notice") require an undertaker within paragraph (2) to execute such re-surfacing works in the street as may be specified in the notice.
(2) An undertaker is within this paragraph if—
(a) he has given notice under Article 14 or 15 of, or made a notification under paragraph 2(1)(d) of Schedule 1A in respect of, proposed street works,
(b) he is executing street works, or
(c) he has, within such period ending with the giving of the notice as may be prescribed (or if no period is prescribed, at any time), executed street works,
and the works will involve, involve or (as the case may be) involved the breaking up of any part of the street.
(3) The works specified in the re-surfacing notice may relate to any part of the street (including any part not, and not to be, broken up by the undertaker); but regulations may restrict the extent of the works that may be so specified.
(4) The re-surfacing notice relieves the undertaker to the extent (if any) specified in the notice of his duty under Article 30 to reinstate the surface of the street; but regulations may restrict the circumstances in which and the extent to which undertakers may be relieved of that duty.
(5) The street authority may by notice to the undertaker vary or withdraw a re-surfacing notice; but regulations may restrict the circumstances in which notices may be varied or withdrawn.
(6) A street authority may give a re-surfacing notice notwithstanding that the authority (in any capacity) is under a duty to undertake any of the works specified in the notice.
(7) In this Order—
"re-surfacing notice" has the meaning given by paragraph (1);
"re-surfacing works" means any works relating to the replacement of the surface of any part of a street;
"surface" includes a paved surface.
(8) The reference in paragraph (2)(c) to the execution of street works is a reference to the execution of such works after the commencement of this Article (whether or not regulations under it have been made).
Power to specify timing etc. of re-surfacing
33B.
—(1) A re-surfacing notice may require an undertaker to—
(a) execute the works specified in the notice in stages so specified;
(b) begin the execution of those works (or any stage of them) at or by a date and time so specified;
(c) execute those works (or any stage of them) at times or on days (or at times on days) so specified;
(d) complete the execution of those works (or any stage of them) by a date and time so specified.
(2) The Department may by regulations make provision restricting, in some or all cases, the power of street authorities to include requirements within paragraph (1), including provision that—
(a) requires street authorities to consult an undertaker before a prescribed description of requirement is included in a notice;
(b) provides that any date specified in a notice for the beginning, execution or completion of works shall not be earlier than a prescribed period from the date on which the notice is given.
Materials, workmanship and standard of re-surfacing
33C.
—(1) An undertaker who has been given a re-surfacing notice shall, when executing the works specified in the notice, comply with such requirements as may be prescribed as to the specification of materials to be used and the standards of workmanship to be observed.
(2) He shall also ensure that the new surface conforms to such performance standards as may be prescribed, for the prescribed period after completion of the works.
Re-surfacing: regulations
33D.
—(1) The Department may make regulations supplementing Articles 33A to 33C.
(2) The regulations may in particular—
(a) make provision about the information to be contained in a re-surfacing notice (including the way in which re-surfacing works are to be described);
(b) prescribe, for cases where a re-surfacing notice may be given to more than one undertaker, the matters that a street authority shall take into account when selecting the undertaker to whom the notice is to be given;
(c) impose a requirement on an undertaker, in prescribed circumstances, to give notice to the street authority of a prescribed event;
(d) prescribe circumstances in which an undertaker may elect to make a payment to the street authority instead of executing the works specified in a re-surfacing notice, and make provision about the calculation of the amount of such payments;
(e) confer a right of review or a right of appeal to the planning appeals commission against a re-surfacing notice or any requirement contained in it, and may make provision about the period within which and manner in which any such right may be exercised and about the determination of appeals;
(f) require disputes of a prescribed description (including disputes as to the existence of circumstances prescribed under Article 33A(1)) to be determined in such manner and by such persons as may be prescribed;
(g) apply any provisions of this Order or the Roads Order, with or without modifications, in relation to works specified in a re-surfacing notice (and provide that for those purposes the works are to be treated as street works or works of any other description).
(3) The regulations may provide that where a re-surfacing notice has been served on an undertaker, the street authority may (in such circumstances and to such extent as may be prescribed) by notice relieve any other undertaker within Article 33A(2) of his duty under Article 30 to reinstate the surface of the street.
(4) The regulations may create in respect of any breach of a requirement imposed by a re-surfacing notice or of the duty imposed by Article 33C, or any contravention of the regulations, an offence punishable on summary conviction—
(a) where the offence consists of a failure to give a notice in accordance with the regulations, with a fine not exceeding level 4 on the standard scale;
(b) in any other case, with a fine not exceeding level 5 on the standard scale.
(5) The first regulations under this Article or any of Articles 33A to 33C shall not be made unless a draft of them has been laid before and approved by a resolution of the Assembly.
Re-surfacing: guidance
33E.
—(1) The Department may, for the purposes of Articles 33A to 33D (including regulations under those Articles), issue or approve a code of practice giving practical guidance as to the exercise of powers and the discharge of duties under those Articles.
(2) In exercising those powers and in discharging those duties, street authorities and undertakers shall have regard to the code of practice.".
Inspections
Guidance about street authority inspections
17.
After Article 33E of the 1995 Order there is inserted—
"
Inspections
Guidance about street authority inspections
33F.
—(1) The Department may issue or approve guidance to street authorities about any matter relating to the exercise by them of any power to carry out inspections of street works.
(2) In exercising their powers to carry out such inspections street authorities shall have regard to any guidance issued or approved under this Article.
(3) In this Article any reference to inspections includes the carrying out of investigatory works.".
Charges, fees, contributions, etc.
Charges where works unreasonably prolonged
18.
—(1) Article 34 of the 1995 Order (charges where works unreasonably prolonged) is amended as follows.
(2) After paragraph (2) insert—
"
(2A) The regulations may prescribe exemptions from the requirement to pay charges.".
(3) In paragraph (3)—
(a) for "may submit to the Department" substitute "shall give to the Department, in such manner as may be prescribed, notice containing", and
(b) for "so submitted" substitute "contained in a notice given to the Department in such manner".
(4) In paragraph (4), for "may submit" substitute "shall give to the Department, in such manner as may be prescribed, notice containing".
(5) After paragraph (5) insert—
(6) In paragraph (7), for the words from "a charge" to the end substitute
(a) in any particular case,
(b) in such classes of case as it may decide or as may be prescribed, or
(c) in all cases or in all cases other than a particular case or such class of case as it may decide or as may be prescribed.".
(7) After that paragraph insert—
"
(7A) The regulations may create in respect of any failure to give a notice required by the regulations a criminal offence triable summarily and punishable with a fine not exceeding level 4 on the standard scale.".
Charges for whole duration of works
19.
In the 1995 Order, after Article 34 insert—
"
Charge determined by reference to duration of works
34A.
—(1) The Department may make provision by regulations requiring an undertaker executing street works in a road to pay to the Department a charge determined, in the prescribed manner, by reference to the duration of the works.
(2) The regulations may prescribe exemptions from the requirement to pay charges.
(3) The regulations may prescribe different rates of charge according to—
(a) the extent to which the surface of the road is affected by the works,
(b) the place and time at which the works are executed, and
(c) such other factors as appear to the Department to be relevant.
(4) The regulations may—
(a) prescribe more than one rate of charge in respect of the same description of works, and
(b) provide that charges are to be paid in respect of any works of that description at the rate which appears to the Department to be appropriate in relation to those works.
(5) The regulations—
(a) may make provision for the determination of the duration of works for the purposes of the regulations; and
(b) in particular, make provision for works to be treated as beginning or ending on the giving of, or as stated in, a notice given by the undertaker to the Department, in the prescribed manner, in accordance with a requirement imposed by the regulations.
(6) The regulations may make provision as to the time and manner of making payment of charges.
(7) The regulations shall provide that the Department may reduce the amount, or waive payment, of a charge—
(a) in any particular case,
(b) in such classes of case as it may decide or as may be prescribed, or
(c) in all cases or in all cases other than a particular case or such class of case as it may decide or as may be prescribed.
(8) The regulations may create in respect of any failure to give a notice required by the regulations a criminal offence triable summarily and punishable with a fine not exceeding level 4 on the standard scale.
(9) The regulations may require disputes of any prescribed description to be referred to an arbitrator appointed in accordance with the regulations.
(10) The first regulations under this Article shall not be made unless a draft of them has been laid before and approved by a resolution of the Assembly.
(11) Nothing shall be taken to prevent the imposition of charges by both regulations under Article 34 and regulations under this Article in respect of the execution of the same works at the same time.".
Fees for inspections
20.
For Article 35 of the 1995 Order (inspection fees) there is substituted—
"
Inspection fees
35.
—(1) The Department may make provision by regulations requiring an undertaker to pay to the street authority the prescribed fee in respect of—
(a) all inspections carried out by the authority of his street works; or
(b) such inspections of those works as may be prescribed.
(2) The regulations may—
(a) require undertakers to make payments in respect of inspections anticipated to take place within a prescribed period; and
(b) make provision for the striking of an account between an undertaker and a street authority and the making of any necessary payment or repayment.
(3) The power to make different provision under this Article for different cases includes power—
(a) to make different provision for different descriptions of street authority or different descriptions of undertakers (including descriptions framed by reference to their previous performance);
(b) to prescribe different fees by reference to the nature or extent of the excavation or other works, the place where they are executed and such other factors as appear to the Department to be relevant.
(4) The reference in paragraph (3)(a) to the previous performance of an undertaker is to the performance of the undertaker, during such period as may be prescribed, as respects such description of his duties under this Order as may be prescribed.
(5) The regulations may require disputes of any prescribed description to be determined by arbitration.
(6) Nothing in this Article applies to inspections in respect of which the undertaker is obliged to bear the cost, or pay the prescribed fee, under Article 32(2) (inspections consequent on failure to comply with duties as to reinstatement).".
Contributions to costs of re-surfacing by undertaker
21.
—(1) After Article 38 of the 1995 Order there is inserted—
"
Contributions to costs of re-surfacing by undertaker
38A.
—(1) Where a street authority has given a re-surfacing notice to an undertaker (A)—
(a) the authority shall pay to A a proportion, calculated in the prescribed manner, of the costs reasonably incurred by A in executing the works specified in the notice;
(b) an undertaker to whom paragraph (2) applies shall pay to A a proportion, calculated in the prescribed manner, of those costs.
(2) This paragraph applies to an undertaker if—
(a) he has, after the commencement of this Article (whether or not regulations under it have been made) and before the completion of the works specified in the notice, executed street works which involved the breaking up of any part of a street, and
(b) the works specified in the notice include the re-surfacing of that part of the street.
(3) The Department may by regulations prescribe exceptions to the duty imposed by paragraph (1)(b).
(4) The payments referred to in paragraph (1) shall be made in such instalments and manner, and within such period of such event, as may be prescribed.
(5) The Department may by regulations make provision—
(a) requiring a street authority, within such period of such event as may be prescribed, to give to an undertaker to whom paragraph (2) applies a notice containing such information as may be prescribed;
(b) requiring a street authority to pay to an undertaker to whom it has given a re-surfacing notice such sum as he has been unable to recover under paragraph (1)(b) on account of the insolvency of an undertaker;
(c) requiring disputes of a prescribed description (including disputes as to whether paragraph (2) applies to an undertaker) to be determined in such manner and by such persons as may be prescribed.
(6) For the purposes of this Article, any costs incurred by an undertaker (including any costs of a street authority which are borne by the undertaker) in consequence of a failure by the undertaker to comply with any duty under this Order shall be treated as having been incurred unreasonably.
(7) The Department may by regulations make provision requiring undertakers to make payments to a street authority where—
(a) the authority has given a re-surfacing notice to an undertaker,
(b) that undertaker has exercised a right, conferred by regulations under Article 33D, of the sort mentioned in paragraph (2)(d) of that Article, and
(c) the authority has carried out any of the works specified in the notice.
(8) The power in paragraph (7) includes power to make provision corresponding to provision that may be made under paragraphs (1) to (5).
(9) The first regulations under this Article shall not be made unless a draft of them has been laid before and approved by a resolution of the Assembly.
(10) In paragraph (5)(b) "insolvency"—
(a) in relation to a company, has the meaning given by Article 6(1) of the Insolvency (Northern Ireland) Order 1989 (NI 19);
(b) in relation to an individual, includes the approval of a voluntary arrangement under Part VIII of that Order.".
(2) In Article 53 of the 1995 Order (recovery of costs and expenses), in paragraph (3), after "street)" there is inserted "or Article 38A (contributions to costs of re-surfacing by undertakers)".
Duties of undertakers with respect to apparatus
Records of location of apparatus
22.
—(1) Article 39 of the 1995 Order (records of location of apparatus) is amended as follows.
(2) After paragraph (1) there is inserted—
"
(1A) An undertaker may, except in such cases as may be prescribed, include in his records under paragraph (1) a record of the location of any item of apparatus belonging to him which is not required to be so included, stating the nature of the apparatus and (if known) whether it is for the time being in use.".
(3) After paragraph (2) there is inserted—
"
(2A) Regulations under paragraph (2) which alter the form or manner in which the records are to be kept may apply to records made before (as well as records made after) the alterations take effect.".
(4) After paragraph (3) there is inserted—
"
(3A) In paragraphs (2) to (3) the references to an undertaker's records are to the records kept by him under paragraph (1) (including anything included in those records by virtue of any provision of this Order or any other statutory provision).".
Duties relating to the location of unexpected apparatus
23.
—(1) Article 40 of the 1995 Order (duties where person finds unidentified apparatus) is amended as follows.
(2) In paragraph (1) for "made available by the undertaker" there is substituted "kept by the undertaker under Article 39(1) and made available by him".
(3) After paragraph (1) there is inserted—
"
(1A) Paragraph (1) has effect subject to such exceptions as may be prescribed.".
(4) For paragraphs (2) and (3) there is substituted—
(5) In paragraph (4) for "(2)" there is substituted "any requirement imposed on him by regulations under paragraph (2)".
(6) After paragraph (4) there is added—
"
(5) The Department may by regulations make provision for and in connection with the keeping by the Department of a register of information recorded by undertakers in pursuance of a requirement imposed under paragraph (2).
(6) Regulations under paragraph (5) may make provision about the inspection of the register by any person having authority to execute works of any description in the street or otherwise appearing to the Department to have a sufficient interest.".
Enforcement
Fixed penalty offences
24.
—(1) After Article 52 of the 1995 Order (offences) there is inserted—
"
Fixed penalties for certain offences under this Order
52A
—(1) Any offence under this Order relating to any street works which is listed in paragraph (3) is a fixed penalty offence for the purposes of this Order.
(2) Offences listed in that paragraph which are committed by virtue of section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c.33) (offences by bodies corporate) are not fixed penalty offences.
(3) The offences are—
(a) an offence under Article 14(4) (failure to comply with duties under Art. 14 (advance notice of certain works, etc.));
(b) an offence under Article 15(5) (beginning to execute works in contravention of Art. 15 (notice of starting date));
(c) an offence under Article 15(9) (failure to give notice in accordance with Art. 15(8) (notice to be given on Art. 15 notice ceasing to have effect));
(d) an offence under Article 17(4) (failure to give notice in accordance with Art. 17 (notice of emergency works));
(e) an offence under Article 30(6) consisting of a failure to comply with paragraph (3) or (4A) (failure to comply with requirements to give notice of completion of reinstatement);
(f) an offence created by regulations made under Article 34(7A) (failure to give a notice required by regulations under Art. 34 (charge for occupation of the road where works unreasonably delayed));
(g) an offence created by regulations made under Article 34A(8) (failure to give a notice required by regulations under Art. 34A (charge determined by reference to duration of works)).”.
(4) The Department may by order modify paragraph (3) so as to provide for offences under this Order relating to any street works to become (or cease to be) fixed penalty offences.
(5) Such an order may not be made unless a draft of the order has been laid before and approved by resolution of the Assembly.
(6) Schedule 2A (which makes provision about fixed penalties for fixed penalty offences) has effect.".
(2) After Schedule 2 to that Order there is inserted Schedule 2A as set out in Schedule 2 to this Order.
Increase of fines for certain summary offences under 1995 Order
25.
—(1) The maximum fine for an offence under each of the following provisions of the 1995 Order is increased from level 3 on the standard scale to level 4 on that scale and accordingly in each of those provisions for "level 3" there is substituted "level 4"—
(a) Article 14(4) (failure to comply with duties under Art. 14 (advance notice of certain works, etc.));
(b) Article 15(5) (beginning to execute works in contravention of Art. 15 (notice of starting date of works));
(c) Article 17(4) (failure to give notice in accordance with Art. 17 (notice of emergency works));
(d) Article 28(2) (failure by undertaker to afford street authority with reasonable facilities for ascertaining whether he is complying with his duties under the Order);
(e) Article 29(2) (failure to comply with Art. 29(1) (requirements relating to street works likely to affect another person's apparatus in the street));
(f) Article 40(4) (failure to comply with Art. 40(1) (duty to inform other undertaker of location of certain apparatus) or requirements imposed under Art. 40(2) (duties applicable where ownership of certain apparatus cannot be ascertained));
(g) Article 43(3) (failure by authority to comply with Art. 43(2) (requirements relating to certain road works likely to affect apparatus in the street));
(h) Schedule 1, paragraph 5(3) (failure to comply with obligation under paragraph 5 (obligations to give notice to street authority)).
(2) The maximum fine for an offence under each of the following provisions of the 1995 Order is increased from level 3 on the standard scale to level 5 on that scale and accordingly in each of those provisions for "level 3" there is substituted "level 5"—
(a) Article 12(2) (offence under Art. 12(1) (prohibition of unauthorised street works);
(b) Article 16(3) (execution of works in contravention of direction under Art. 16 (directions as to timing of street works));
(c) Article 18(6)(a) (carrying out works in contravention of a restriction imposed under Art. 18 (restriction on works following substantial road works));
(d) Article 20(3) (failure to comply with duty under Art. 20(1) (general duty of undertakers to co-operate));
(e) Article 25(4) (failure to comply with Art. 25(1) or (2) (safety measures));
(f) Article 25(6) (interference with safety measures taken by undertaker);
(g) Article 26(2) (failure to comply with Art. 26(1) (duty to carry on and complete certain street works with all reasonably practicable dispatch));
(h) Article 27(3) (failure to comply with Art. 27(1), (2) or (2C) (duties relating to the use of qualified supervisors and operatives));
(i) Article 31(4) (failure to comply with duties under Art. 31 (prescribed requirements as to materials and workmanship and performance standards for reinstatements));
(j) Article 39(4) (failure to comply with duties under Art. 39(1) to (3) (records of location of apparatus));
(k) Article 50(2) (failure to comply with a special requirement as to the displaying of lights imposed by a transport authority under Art. 50(1));
(l) Schedule 2, paragraph 6 (execution of works in street with special engineering difficulties in contravention of paragraph 2 (requirement for agreed plan and section before executing works) or paragraph 3 (requirement to furnish plan and section after emergency works));
(m) Schedule 2, paragraph 12(5) (failure to execute works in such a street in accordance with a direction under paragraph 12);
(n) Schedule 2, paragraph 13(2) (failure to comply with paragraph 13(1) (requirement to execute works in such a street in accordance with plan or agreed modification)).
(3) In Article 30(6) of the 1995 Order (failure to comply with Art.30 (duty to reinstate)) for the words from "to a" to the end there is substituted—
"
(a) in the case of an offence consisting of a failure to comply with paragraph (3) or (4A), to a fine not exceeding level 4 on the standard scale; and
(b) in any other case, to a fine not exceeding level 5 on that scale.".
(4) In Article 47(3) of the 1995 Order (failure to comply with duties relating to street works affecting the structure of a bridge) for the words from "to a" to the end there is substituted—
"
(a) in the case of an offence consisting of a failure to take all reasonably practicable steps to comply with paragraph (2)(a), to a fine not exceeding level 4 on the standard scale; and
(b) in any other case, to a fine not exceeding level 5 on that scale.".
(5) This Article does not have effect in relation to an offence committed before it comes into operation.
Miscellaneous
Inquiries
26.
In the 1995 Order after Article 55 there is inserted—
"
Inquiries
55A.
The Department may cause an inquiry to be held in relation to the exercise of any of its functions under this Order.".
Delegation of functions
27.
In the 1995 Order after Article 56 there is inserted—
"
Delegation of functions
56A.
—(1) Any function of the Department under this Order (other than a power or duty to make regulations or an order) may be exercised by, or by employees of, any person authorised to do so by the Department.
(2) Articles 13 to 15 of the Deregulation and Contracting Out (Northern Ireland) Order 1996 (NI 11) apply where a person is authorised to exercise any function of the Department by virtue of this Article as they apply where a person is authorised to exercise any function of a Northern Ireland department by virtue of Part III of that Order.".
Regulations
28.
—(1) Article 59 of the 1995 Order (regulations) is amended as follows.
(2) In paragraph (1) for "34(8) and 38(5)" there is substituted "12A(8), 33D(5), 34(8), 34A(10), 38(5) and 38A(9)".
(3) After that paragraph there is inserted—
"
(1A) Regulations under this Order may include incidental, supplemental, consequential or transitional provision or savings.".
Christine Cook
Deputy Clerk of the Privy Council
SCHEDULES
SCHEDULE 1Article 10.
SCHEDULE 1A TO THE 1995 ORDER
"
SCHEDULE 1A
RESTRICTION ON WORKS FOLLOWING SUBSTANTIAL STREET WORKS
Introductory
1.
—(1) This Schedule applies where a street authority receives a notice under Article 14 or 15 that an undertaker is proposing to execute substantial street works in a road.
(2) For the purposes of this Schedule, "substantial street works" means street works of such description as may be prescribed.
Notice by authority of proposed restriction
2.
—(1) The street authority may publish a notice—
(a) specifying the nature and location of the proposed works and the date on which it is proposed to begin them;
(b) stating that the authority proposes to issue a direction under paragraph 4 imposing a restriction on street works;
(c) stating the duration of the proposed restriction and the part of the road to which it relates;
(d) requiring any other undertakers who propose to execute street works in that part of the road, and who have not already done so, to notify the authority of their proposed works within the period specified in the notice ("the notice period").
(2) The notice period shall not be less than such period as may be prescribed.
(3) A notice under this paragraph shall—
(a) be published in the prescribed form and manner; and
(b) comply with such requirements as to its form and content as may be prescribed.
(4) A copy of a notice under this paragraph shall be given to each of the following—
(a) where there is a public sewer in the part of the road specified under sub-paragraph (1)(c), to the Department;
(b) where that part of the road is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held by or used for the purposes of a transport authority, to that authority;
(c) where in any other case that part of the road is carried or crossed by a bridge, to the bridge authority;
(d) any person who has given notice under Article 14 of his intention to execute street works in that part of the road;
(e) any person who has apparatus in that part of the road;
(f) any other person of a prescribed description.
(5) Notification under sub-paragraph (1)(d) shall be in such form, contain such information, and be made in such manner as may be prescribed.
(6) Article 15 does not apply in relation to works in the part of the road specified under sub-paragraph (1)(c) that are begun between the end of the notice period and completion of the works referred to in paragraph 3(1)(a) to (c).
This sub-paragraph does not apply to cases prescribed under paragraph 3(5)(b).
Completion of notified works
3.
—(1) After the expiry of the notice period the street authority may issue directions to—
(a) the undertaker proposing to execute the substantial street works,
(b) any undertakers who have given notice under paragraph 2 in respect of works they propose to execute, and
(c) any undertakers who have previously given notice of works they propose to execute in the part of the road specified under paragraph 2(1)(c).
(2) A direction to an undertaker under this paragraph is a direction as to the date on which he may begin to execute the works proposed by him.
(3) Where—
(a) a direction is given to an undertaker under this paragraph as respects the date on which he may begin to execute the works proposed by him, and
(b) he begins to execute those works before that date,
he is guilty of an offence.
(4) After the expiry of the notice period, any undertaker who, before completion of the works referred to in sub-paragraph (1)(a) to (c), executes any other street works in the part of the road specified under paragraph 2(1)(c), commits an offence.
(5) Sub-paragraph (4) does not apply—
(a) where an undertaker executes emergency works; or
(b) in such other cases as may be prescribed.
(6) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Direction restricting further works
4.
—(1) After the expiry of the notice period and before completion of the works referred to in paragraph 3(1)(a) to (c) the authority may give a direction under this paragraph.
(2) A direction under this paragraph is a direction restricting the execution of street works in the part of the road specified under paragraph 2(1)(c) for such period following completion of the works referred to in paragraph 3(1)(a) to (c) as may be specified in the direction.
(3) The duration of the period specified under sub-paragraph (2) may not exceed the duration of the restriction proposed by the authority under paragraph 2(1)(c).
(4) The period specified in a direction under this paragraph may not in any case exceed such period as may be prescribed.
(5) A direction under this paragraph shall—
(a) be given in the prescribed manner;
(b) comply with such requirements as to its form and content as may be prescribed.
(6) The street authority must send a copy of any direction under this paragraph to the persons specified in paragraph 2(4).
(7) A direction under this paragraph shall cease to have effect if the works referred to in paragraph 3(1)(a) to (c) to which it relates are not completed within such period as may be prescribed.
(8) A direction under this paragraph may be revoked at any time by the authority which gave it.
(9) Where a direction under this paragraph ceases to have effect by virtue of sub-paragraph (7), or is revoked by virtue of sub-paragraph (8), the street authority must notify the persons specified in paragraph 2(4).
(10) If the street authority decides not to give a direction under this paragraph, it must notify the persons specified in paragraph 2(4) accordingly.
Effect of direction imposing restriction
5.
—(1) Where a direction under paragraph 4 is in force, an undertaker may not during the period specified in the direction execute street works in the part of the road to which the restriction relates.
(2) Sub-paragraph (1) does not apply—
(a) where an undertaker executes emergency works;
(b) where an undertaker executes works with the consent of the street authority; or
(c) in such other cases as may be prescribed.
(3) The consent of the street authority under sub-paragraph (2)(b) shall not be unreasonably withheld; and any question whether the withholding of consent is unreasonable shall be settled in such manner as may be prescribed.
(4) Regulations under sub-paragraph (3) may in particular make provision for the question referred to in that sub-paragraph to be settled—
(a) by arbitration;
(b) by the planning appeals commission on appeal by the undertaker.
(5) An undertaker who contravenes sub-paragraph (1) commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) An undertaker convicted of an offence under sub-paragraph (5) is liable to reimburse the street authority any costs reasonably incurred by it in reinstating the road.
Supplementary
6.
An undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is attributable to a restriction imposed under this Schedule.".
SCHEDULE 2Article 24.
SCHEDULE 2A TO THE 1995 ORDER
"
SCHEDULE 2A
FIXED PENALTIES FOR CERTAIN OFFENCES
Power to give fixed penalty notices
1.
—(1) An authorised officer of a street authority may, if he has reason to believe that a person is committing or has committed a fixed penalty offence, give him a fixed penalty notice in relation to that offence.
(2) In this Schedule "fixed penalty notice" means a notice offering a person the opportunity of discharging any liability to conviction for a fixed penalty offence by payment of a penalty.
2.
A fixed penalty notice for an offence may not be given after such time relating to the offence as may be prescribed.
Contents of fixed penalty notice
3.
—(1) A fixed penalty notice must identify the offence to which it relates and give reasonable particulars of the circumstances alleged to constitute that offence.
(2) A fixed penalty notice must also state—
(a) the amount of the penalty and the period within which it may be paid;
(b) the discounted amount and the period within which it may be paid;
(c) the person to whom and the address at which payment may be made;
(d) the method or methods by which payment may be made;
(e) the person to whom and the address at which any representations relating to the notice may be addressed;
(f) the consequences of not making a payment within the period for payment.
(3) The person specified under sub-paragraph (2)(c) must be the street authority or a person acting on its behalf.
The amount of the penalty and the period for payment
4.
—(1) The penalty for a fixed penalty offence is (subject to paragraph 5) such amount, not exceeding 30 per cent. of the maximum fine for that offence, as may be prescribed.
(2) The period for payment of the penalty is the period of 29 days beginning with the day on which the notice is given.
(3) The street authority may extend the period for paying the penalty in any particular case if the authority considers it appropriate to do so.
The discounted amount
5.
—(1) A discounted amount is payable instead of the amount prescribed under paragraph 4(1) if payment is made before the end of the period of 15 days beginning with the day on which the notice is given.
(2) The discounted amount for a fixed penalty offence is such amount, not exceeding 25 per cent. of the maximum fine for the offence, as may be prescribed.
(3) If the last day of the period specified in sub-paragraph (1) does not fall on a working day, the period for payment of the discounted amount is extended until the end of the next working day.
Effect of notice and payment of penalty
6.
—(1) This paragraph applies where a person is given a fixed penalty notice in respect of a fixed penalty offence.
(2) No proceedings for the offence may be commenced before the end of the period for payment of the penalty.
(3) No such proceedings may be commenced or continued if payment of the penalty is made before the end of that period or is accepted by the street authority after that time.
(4) Payment of the discounted amount only counts for the purposes of sub-paragraph (3) if it is made before the end of the period for payment of the discounted amount.
(5) In proceedings for the offence a certificate which—
(a) purports to be signed by or on behalf of the person having responsibility for the financial affairs of the street authority; and
(b) states that payment of an amount specified in the certificate was or was not received by a date so specified,
is evidence of the facts stated.
Power to withdraw notices
7.
—(1) If the street authority considers that a fixed penalty notice which has been given ought not to have been given, it may give to the person to whom it was given a notice withdrawing the fixed penalty notice.
(2) Where a notice under sub-paragraph (1) is given—
(a) the authority shall repay any amount which has been paid by way of penalty in pursuance of the fixed penalty notice; and
(b) no proceedings shall be commenced or continued against that person for the offence in question.
(3) The street authority shall consider any representations made by or on behalf of the recipient of a fixed penalty notice and decide in all the circumstances whether to withdraw the notice.
General and supplementary
8.
The Department may, with the consent of the Department of Finance and Personnel, make regulations about—
(a) the application by street authorities (other than the Department) of fixed penalties paid under this Schedule;
(b) the keeping by such authorities of accounts, and the preparation and publication of statements of account, relating to fixed penalties paid under this Schedule.
9.
The Department may by regulations—
(a) prescribe circumstances in which fixed penalty notices may not be given;
(b) modify paragraph 4(2) or 5(1) so as to substitute a different period for the period for the time being specified there;
(c) prescribe the method or methods by which penalties may be paid.".
EXPLANATORY NOTE
(This note is not part of the Order)
This Order amends the Street Works (Northern Ireland) Order 1995 to provide the Department for Regional Development with additional powers for the management and control of street works.
The Order also increases the level of fines for certain offences and provides for the issue of fixed penalty notices in respect of certain offences. It also provides for the introduction of a permit scheme to control specified street works.
Explanatory Memorandum
ISBN
978 0 11 080070 7
| © Crown copyright 2007 |
Prepared
15 February 2007
|
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URL: http://www.bailii.org/nie/legis/num_orders/2007/20070287.html
