Consultation proposals

Print Print page   Download PDF PDF image

Background

1. The services provided by local authorities have a significant impact on the quality of life. It is vital that these services are delivered to a high standard, and in ways that are responsive to the needs of their users. Everyone expects highway functions, including road maintenance and street works, (road works that are initiated by utility companies) to be delivered effectively.

2. Local Authorities have an obligation to seek continuous improvement in the way they carry out their functions having regard to efficiency, effectiveness and economy, thereby providing best value. In doing this they should review and challenge the way they provide services. The Government recognises that securing lasting improvements frequently requires the involvement of others working in partnership with local authorities. To enable the partner organisations to carry out a statutory function without reference to the relevant authority, the function must be subject to a contracting out order. More detail of this policy can be found in http://www.communities.gov.uk/documents/localgovernment/pdf/134855

3. Likewise, the Secretary of State wants to deliver the services she is responsible for in a way which would deliver best value. We believe that the draft order relating to the Secretary of State enables delivery of this.

4. However, including a function in a contracting out order does not mean that it must be delivered by a partner organisation. It enables the relevant authority to contract out the service if doing so meets local needs and is the most efficient manner of delivering the service.

5. Currently there are three contracting out orders for Highway functions. These are:

  • The Contracting Out (Highway Functions) Order 1995 No. 1986,
  • The Local Authorities (Contracting Out of Highway Functions) Order 1999, No. 2106, and
  • The Local Authorities (Contracting Out of Highway Functions) (England) Order 2001 No. 4061.

6. The Government proposes to consolidate these into two new orders. The new orders will also include new or amended street works functions that have been introduced since the existing orders came into force, including those which will come into effect on 1st April 2008, such as the revised noticing regulations for street works. This will ensure that the amended or additional functions can still be delivered on a contracted out basis. There are two draft contracting out orders; one for functions of the Secretary of State (carried out by the Highways Agency) and another for functions of a local highway or street authority and these are attached at Annex D and E respectively.

7. These orders are being made under the Deregulation and Contracting Out Act 1994 (DCOA).

8. These orders will affect both England and Wales, except for those highways that are the responsibility of the National Assembly for Wales, as contracting out is a reserved matter. These proposals do not affect Scotland or Northern Ireland.

9. Where a section is being amended and commenced on 1st April, the draft orders should be read as referring to the amended function and not the current function.

Functions included in the existing orders

10. The Department considers that the highway authority and street authority functions included in the existing orders are still suitable for a partner organisation to carry out without reference to the relevant authority. Therefore, all functions in the existing orders not specifically mentioned in this document are included in the new orders as before.

Q1 Do you consider that any of the functions included in the existing orders should not be replicated in the new orders (except where functions have been replaced, repealed or substantially changed, as these are covered elsewhere in this document)?

Changes to the contracting out status of un-amended functions.

11. Some functions which were included in the order for the Secretary of State but not in that for local highway authorities have now been included in both orders. These functions are:
n The obligation to pay compensation if the owner or occupier of land suffers any damage from the exercise of powers outlined in section 100(1) of the Highways Act, (section 100(3) Highways Act), and
n The obligation to pay compensation if the owner or occupier of land suffers any damage when a ditch on their land, which has been deemed to be of danger to users of the highway, has been filled in by the authority, (section 101(2) Highways Act).

Q2 Do you agree with local authorities being able to contract out the functions listed above?

Noticing

12. The noticing system under New Roads and Street Works Act 1991 (NRSWA) is central to the regulation of street works. It stipulates what information Statutory Undertakers have to provide to street authorities to enable them to carry out their duty to co-ordinate all works in the street as well as inspect street works. The information which has to be provided includes planned start and end dates for works and their location, along with confirmation as to when work actually starts or finishes. The authority must hold this information on a register, which must be made available for inspection.

13. The current noticing regulations are being replaced in England by the Street Works (Registers, Notices, Directions and Designations) (England) Regulations 2007, S.I. 2007 No. 1951. It is likely that similar functions might well be enacted in Wales by the Welsh Assembly Government. Therefore, we would welcome views from Welsh bodies on including them in the draft orders (use the above English Regulations as a guide to likely functions). The noticing functions included in the draft orders are:

  • The obligation for securing on the register information that the street authority is responsible for (regulation 4(4) and 4(5)),
  • The requirement to send all notices electronically (regulation 6(5)),
  • Where a copy of a notice is required to be given under part three of NRSWA it should be copied as prescribed in Regulation 6 of  the above regulations (regulation 7),
  • The ability to accept a start of works notice, an urgent works notice or a notice of proposals (regulation 9(1), 9(2) and 9(3) respectively),
  • The requirement to follow the specified method of giving a direction relating to the timing of street works or the placing of apparatus (regulation 10),
  • The requirement to publish the notice providing information on proposals to restrict street works following substantial road works on a website and copying the notice to the persons specified (regulation 11(3) and 11(5) respectively),
  • The requirement to publish the notice providing information on proposals to restrict street works following substantial street works on a website, copying the notice to the persons specified and publishing any direction restricting further works on a website (regulation 12(3), 12(4) and 12(7) respectively), and
  • The requirement to make available information about streets which have been designated as protected, having special engineering difficulties or that are traffic sensitive (regulation 14(3), 15(3) and 16(6) respectively).

14. In addition to the noticing functions contained in the noticing regulations there are also some amended and new noticing functions in NRSWA which are included in the draft orders. These are:

  • The function of accepting a notice from an undertaker stating that the works are cancelled, delayed or deferred (section 54(4A) NRSWA),
  • The ability to extend the start of works deadline given in an advance notice (section 54(4B)),
  • The ability to accept from the undertaker the formal cancellation notice (section 55(8)),
  • The ability to accept notice of emergency start of works notices from undertakers (section 57(2)), and
  • The ability to accept notices from undertakers detailing when a reinstatement is completed (section 70(3) and 70(4A)).

Q3 Do you think these functions are suitable to be operated on a contracted out basis?

Coordination of works

15. Authorities have a duty to coordinate all works in the highway. This is done in order to minimise inconvenience to people using the streets, in the interest of user safety and to protect the integrity of the street and the apparatus in it. This is carried out by authorities giving directions to undertakers on when works can be carried out or by restricting street works following substantial works. An undertaker can ask for permission from the street authority to undertake work in the restricted period, which should not be unreasonably withheld. The amended coordination functions included in the draft orders are:

  • The power to give directions to undertakers restricting when and at what time works can be carried out (section 56(1) and 56(1A) NRSWA),
  • The power to by notice to restrict street works following substantial road works (section 58(1)),
  • The obligation to settle disputes, in the prescribed manner, as to whether it is reasonable to carry out such works in the restricted period (section 58(7)), and
  • The power to place restrictions on street works following substantial street works, (section 58A NRSWA and schedule 3A). The functions in this schedule that are included in the order are:
    a) Accepting notice from an undertaker detailing that they are proposing to execute substantial street works (paragraph 1(1) of schedule 3A of NRSWA),
    b) The ability to publish a notice informing other undertakers of the proposed substantial works and requiring them to inform the authority of any proposed works in the area (paragraph 2(1)),
    c) The requirement to give a copy of the notice to the bodies specified (paragraph 2(4)),
    d) The ability to give a direction to undertakers specifying dates when street works can take place (paragraph 3(1)),
    e) The ability to give a direction stating the length of the restriction on further works (paragraph 4(1)),
    f) The obligation to copy this direction to the specified persons (paragraph 4(6)),
    g) The ability to revoke a direction made under paragraph 4 (paragraph 4(8)),
    h) The obligation, where a direction ceases to have effect or is revoked, to notify the specified persons that this has happened (paragraph 4(9)),
    i) The requirement to inform the same bodies when a direction is not given (paragraph 4(10)),
    j) The ability to give consent to an undertaker to carry out work in the part of the highway to which the restriction relates (paragraph 5(2)(b)), and
    k) The function of settling questions as to withholding consent (paragraph 5(3)). 

Q4 Do you think these functions are suitable to be operated on a contracted out basis.

Maintenance functions

16. Highway authorities are under an obligation to maintain highway infrastructure on public roads. We are proposing to enable all authorities (not only highway authorities) to contract out the obligation to maintain flag polls, pylons or other structures used to display decorations function. The new or amended highway maintenance functions included in the new orders are:

  • The duty to maintain public roads, which has been amended to ensure that as far as reasonably practicable safe passage is not endangered by snow or ice (section 41 and 1A Highways Act 1980),
  • Before a London borough exercises a duty in the highways act that would affect the roads another London borough or Transport for London they should consult them. This function is only being contracted out with regard to other contracted out functions (i.e. the borough can only contract out the consultation on the exercise of functions included in this order) (section 301A(2) and section 301A(3) Highways Act), and
  • The obligation to maintain flag polls, pylons or other structures used to display decorations (section 144(4)(b) Highways Act 1980).

Q5 Do you think these functions are suitable to be operated on a contracted out basis.

Changing the placement of apparatus in a street

17. A street authority has the power to give a direction requiring an undertaker not to place new apparatus in a specific street. This power can only be used if the authority believes that placing the apparatus in this street is likely to cause disruption to traffic and there is a more suitable alternative. This direction can be varied or revoked. The Secretary of State has issued a Code of Practice under section 56A(8), as part of the street works Co-ordination Code of Practice, on this issue which street authorities must have regard to. The functions are section 56A(1), section 56A(3) and section 56A(8)(street authority functions only) NRSWA.

Q6 Do you think these functions are suitable to be operated on a contracted out basis.

Unadopted roads

18. An unadopted road is the term used to describe a road that is not maintained at the public expense. However, the status of these roads sometimes changes and they become adopted by the relevant highway authority. Where an authority has decided to adopt a currently unadopted road the authority has the obligation to ensure that undertakers abide by the provisions detailed in part 3 of NRSWA (section 87(4) NRSWA).

Q7 Do you think this function is suitable to be operated on a contracted out basis.

Inspections

19. Under NRSWA street authorities have the right to inspect reinstatements carried out by undertakers to ensure they comply with the reinstatement code of practice. Authorities have the right to charge a fee to cover the cost of inspecting up to 30 per cent of the total works carried out in their area. We propose to include in the order the function in the 2002 Regulations allowing the charging of fees for the inspections described above. This function in relation to England is contained in Regulation 3(1) of The Street Works (Inspection Fees) (England) Regulations 2002. With relation to Wales this function is contained in Regulation 3(1) of the Street Work (Inspection Fees)(Wales) Regulations 2006.

Q8 Do you think these functions are suitable to be operated on a contracted out basis.

Charges for the Unreasonably Prolonged Occupation of the Highway

20. Highway authorities have the ability to levy charges against undertakers whose works take longer than agreed. The Government is proposing a new regulatory framework in this area.
21. The proposed new policy is that any charges levied can be varied by road category and the type of works carried out. For example, major works in the busiest streets would carry the highest charge. In addition it is also proposed that a mitigated charge can be levied where works have been reinstated but spoil or equipment remains on site. These functions are found in the draft Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) Regulations 2008. Please be aware that these regulations are subject to change following a public consultation and parliamentary approval. The functions included in the draft orders are:

  • The ability to accept the actual start of works notice and the works closed notice from an undertaker (draft regulation 6(1), 6(2) and 6(3)),
  • The ability to accept the overrun charge (regulation 7(3)),
  • The ability to inform an undertaker that equipment or spoil has been left behind (regulation 7(7)(c)),
  • The ability to accept the charge for the equipment or spoil being left behind (regulation 7(7)),
  • The ability to accept a notice from an undertaker informing the authority that works might overrun (regulation 8(1)),
  • The ability to give notice, to an undertaker informing them that the authority objects to the estimate of duration of works (regulation 8(2)),
  • The ability to accept a notice of estimates or revised estimates of the duration of works (regulation 9(1)), and
  • The ability to give notice to an undertaker informing them that the authority objects to the estimate or revised estimate of duration of works (regulation 9(2)).

Q9 Do you think these functions are suitable to be operated on a contracted out basis.

Fixed penalty notices (FPN's)

22. From 12 May 2008 offences for breaching some street works legislation will be subject to a Fixed Penalty Notice (FPN). An FPN can by given by an authorised officer of an street authority. The draft orders include further functions in the administration and issuing of FPNs. It is likely that similar functions might well be enacted in Wales by the Welsh Assembly Government. Therefore we would welcome views from Welsh bodies on including them in the draft orders (use the above English Regulations as a guide to likely functions). These are:

  • Functions of collating the addresses to which to an FNP should be sent (regulation 5(1) and 5(6) of The Street Works (Fixed Penalty) (England) Regulations 2007).

Q10 Do you think these functions are suitable to be operated on a contracted out basis.

Traffic calming works in London

23. Before the construction of traffic calming works in London the borough proposing the works must send notice detailing the works to the Secretary of State. In addition they must also have regard for any comments the Secretary of State may make. These functions are contained in s90GA(2) and s90GA(3) of the Highways Act 1980. The functions included in the order are the sending to the Secretary of State of the notice by the borough and having regard for any comments.

Q11 Do you think these functions are suitable to be operated on a contracted out basis.

The Removal, Storage and Disposal of Vehicles by Traffic Officers and the Secretary of State for Transport

24. The  proposed draft regulations, know as ‘The Removal and Disposal of Vehicles by Traffic Officers (England) Regulations 2008’ (“Removal and Disposal Regulations”) will provide Traffic Officers designated under Section 2 of the Traffic Management Act 2004 (‘Traffic Officers’) with powers to request, remove or arrange the removal from the roads in England for which the Secretary of State is the Highway Authority (“the Strategic Road Network”) (and roads affecting it) of vehicles that are parked illegally, abandoned, and broken down, which are causing danger or obstruction to other road users.

25. It will also provide the Secretary of State for Transport with the power to store and dispose of vehicles that have been or appear to have been abandoned, which have been removed by Traffic Officers. More information on the proposed Removal and Disposal Regulations which provide for the removal of vehicles by Traffic Officers and the disposal of vehicles by the Secretary of State can be found at: http://www.highways.gov.uk/vehiclerecoveryconsultation 

26. It is proposed that the following functions of the Secretary of State which are found in the Removal and Disposal Regulations and the Road Traffic Regulation Act 1994 (RTRA) may be contracted out in the future . They are not included in the orders as the Removal and Disposal Regulations are only in draft form, but may form part of a future contracting out order. The functions that we propose  to be able to be contracted out are:

  • The ability to receive an abandoned vehicle that has been removed by a Traffic Officer and has to be delivered to the Secretary of State (regulation 12(2)(a) of the Removal and Disposal Regulations which will amend the RTRA when the Removal and Disposal Regulations come into force),
  • The duty to take such steps as may be reasonably necessary for the safe custody of the vehicle (section 100 (4) of the RTRA),
  • The obligation to take reasonable steps to find the person appearing to be the vehicle owner (section 101 of the RTRA),
  • The obligation to send a notice to the owner of the vehicle where the name and address of the person who appears to be the vehicle owner has been found (regulation 14 of the Removal and Disposal Regulations),
  • The responsibility to decide if the person claiming to be the vehicle owner is the owner (or was the owner at the time when the vehicle was disposed of) and to either return the vehicle once prescribed statutory charges have been paid or give the owner the proceeds of the vehicle that has been disposed less any prescribed statutory charges (section 101 of the RTRA),
  • The obligation to provide the specified information to the owner of the vehicle relating to its disposal (regulation 17 of the Removal and Disposal Regulations),
  • The ability to dispose of a vehicle in such manner as they may see fit (section 101(1) RTRA) and
  • The ability to recover prescribed statutory charges from any person responsible (section 102 of RTRA).

Q12 Do you think these functions are suitable to be operated on a contracted out basis.

Other functions

Q13 Are there any other highway functions which are not included but should be added to the draft orders?

Regulatory burden

Q14 Do you consider that contracting out these functions will increase the regulatory burden in addition to the cost of the underlying functions? 

Consultations