Part V Roads and Building Control
Works and excavations
C1C6C756 Control of works and excavations.
1
F9... Without prejudice to any requirement imposed by, under or by virtue of any F10... enactment, no works shall be executed in, or excavation made under, a public road except with the roads authority’s consent in writing and in accordance with any reasonable conditions which they think fit to attach to the consent.
2
An application for the consent of a roads authority under subsection (1) above shall be in writing. On receipt of the application they shall give the applicant notice of all statutory undertakers whose apparatus is, in the opinion of the authority, likely to be affected by the works or excavation and the applicant shall then forthwith in writing intimate the application to those undertakers of whom he has received such notice.
3
This section does not apply to works or excavations to which the F1provisions of Part IV of the New Roads and Street Works Act 1991 apply.
4
A person shall, as soon as reasonably practicable after he—
a
executes such works as are, or
b
makes such excavation as is,
mentioned in subsection (1) above, make good any damage to the road occasioned by the works or excavation and shall immediately thereafter give notice to the authority that the damage is made good; and without prejudice to section 66 of this Act, until twelve months have elapsed from the authority certifying that the damage has been made good to their satisfaction (which certificate shall not be withheld unreasonably) the person shall maintain so much of the road as is made good.
5
At the completion of the works or excavation mentioned in subsection (1) above any opening left in the road shall be provided with a door or cover by the person executing the works or making the excavation; and such door or cover shall be constructed in such manner, and of such materials, as may be specified by the roads authority.
6
A person who contravenes—
a
subsection (1) above; or
b
subsection (5) above,
commits an offence.
7
Works executed, or an excavation made, in contravention of subsection (1) above may be removed, or as the case may be filled in, by the roads authority; and the authority may recover such expenses as are reasonably incurred in so doing, or in maintaining an excavation which has under this subsection been filled in, from the person who executed those works or made that excavation.
8
The roads authority shall, where practicable, notify the person mentioned in subsection (7) above about anything removed under that subsection; but if the person cannot be traced, or if he has not recovered the thing within a reasonable period of time after being so notified, the authority may dispose of the thing.
9
Any proceeds of a disposal under subsection (8)
above shall be used to meet any such expenses in relation to the removal or filling in as are mentioned in subsection (7) above. Thereafter any surplus shall be given to the person so mentioned if he can be traced and if he cannot may be retained by the roads authority.
10
Where a person contravenes subsection (4) (other than by a failure duly to give information) or (5) above, the roads authority may make good the damage to the road, or as the case may be provide a door or cover for the opening, and recover from him such expenses as are reasonably incurred in so doing.
C2C6C757 Dangerous works.
1
Where, in the opinion of the roads authority, works which a person is executing in, or excavations which he is making under, a road are causing, or are likely to cause, a danger the authority may by notice to him require him within such period as may be specified in the notice to take such steps as will ensure that such danger is brought to an end or as the case may be does not arise.
2
Notwithstanding any consent granted under section 56 F11... of this Act and without prejudice to the generality of subsection (1) above, steps specified in the notice under that subsection may include the removal of the works or filling in of the excavations.
3
Subsections (1) and (2) above do not apply to works or excavations which are in contravention of section 56(1) F12... of this Act.
4
Without prejudice to F13section 56 of this Act, but notwithstanding any consent granted under either of those sections, a person executing works, or making excavations—
a
which constitute a danger; or
b
who permits them to become a danger,
commits an offence.
5
This section does not apply to works or excavations to which the F2provisions of Part IV of the New Roads and Street Works Act 1991 apply.
6
A person upon whom a notice has been served under subsection (1)
above may within 28 days of such service refer the matter by summary application to the sheriff; and the decision of the sheriff on the matter shall be final.
C3C6C8C758 Occupation of parts of road for deposit of building materials etc.
1
Subject to subsection (7) below, a person who without, or otherwise than in accordance with, the written permission of the roads authority, in conducting operations for the construction, repair, maintenance or demolition of any building, occupies for the purpose of depositing materials or otherwise in connection with those operations, a part of a road, whether public or private, or erects staging or scaffolding which projects over a part of a road, commits an offence.
2
Such permission as is mentioned in subsection (1) above may be granted either unconditionally or subject to such conditions, including conditions as to the duration of the permission, as may be specified therein; and notwithstanding anything in any enactment or in any rule of law, a person who complies with the permission (including the conditions) does not by the occupation or erection in respect of which the permission is granted commit an offence:
Provided that the foregoing provisions of this subsection shall not constitute a defence as regards any such contravention as is mentioned in section 128(1) of this Act.
3
Subject to subsection (7) below, where a person by such occupation as is mentioned in subsection (1) above commits an offence under that subsection, any other person who, in connection with the operations, either by himself or by his servant or agent, deposits materials on the part of the road so occupied commits an offence.
4
Where a person is charged with an offence under subsection (1) above it shall be a defence for him to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
5
Where a person is charged with an offence under subsection (3) above, it shall be a defence for him to prove that the offence—
a
took place on the instructions, or by the authority, of his employer or of the person conducting the operations, or
b
was due to a mistake, or
c
was due to reliance on information supplied to him,
and that he was unaware that he was depositing the materials otherwise than under and in accordance with a permission granted under subsection (1) above.
6
If in any case the defence provided by subsection (5) above involves the allegation that the offence took place on the instructions, or by the authority, of another person, or was due to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven days before the hearing, he has served on the prosecutor notice giving such information identifying or assisting in the identification of that other person as is then in his possession.
7
The occupation mentioned in the foregoing provisions of this section does not include occupation with a builder’s skip (within the meaning of section 85 of this Act).
C4C6C759 Control of obstructions in roads.
1
Subject to subsection (6) below, nothing shall be placed or deposited in a road so as to cause an obstruction except with the roads authority’s consent in writing and in accordance with any reasonable conditions which they think fit to attach to the consent.
2
A person who contravenes subsection (1) above commits an offence.
3
Without prejudice to subsection (2) above, a person who contravenes subsection (1) above may be required by the roads authority or by a constable in uniform to remove the obstruction forthwith, and commits an offence if he fails to do so.
4
Where—
a
a requirement under subsection (3) above is not complied with;
b
the person who placed or deposited the obstruction cannot be readily traced; or
c
the case is one of emergency,
the roads authority or a constable may remove the obstruction (or cause it to be removed) and recover such expenses as are reasonably incurred in so doing from the said person.
5
Subsections (8) and (9) of section 56 of this Act shall apply in relation to anything removed under subsection (4) above as they apply in relation to anything removed under subsection (7) of that section, except that where the removal is by a constable the said subsections (8) and (9) shall be read as if any reference therein to the roads authority were a reference to the F7 Scottish Police Authority .
6
The foregoing provisions of this section do not apply—
a
where section 58, 85 or 86 of this Act or section 2 of the M1Refuse Disposal (Amenity) Act 1978 (penalty for unauthorised dumping of motor vehicles etc.) applies; or
b
to works to which the F3provisions of Part IV of the New Roads and Street Works Act 1991 apply.
C5C6C760 Fencing and lighting of obstructions and excavations.
1
Without prejudice to F4. . . sections 57 to 59 or section 85 of this Act, where any person F14(other than a roads authority) places or deposits anything on a road so as to cause an obstruction, or executes works in a road, he shall, whether or not the obstruction is, or works are, on or in the road with the consent of the roads authority—
a
cause the obstruction or works to be marked in such manner and with such materials as may, for the purpose of making it or them immediately visible to oncoming traffic, be specified;
b
provide such lighting of the obstruction or works during the hours of darkness as is necessary for preventing danger to traffic and for warning traffic of danger;
c
erect such fences, barriers and traffic signs for preventing danger to traffic, for regulating traffic, and for warning traffic of danger, as may be necessary and remove them as soon as they cease to be necessary therefor; and
d
in the case of an obstruction or works whose nature so requires, cause any building adjoining the road to be shored up or otherwise protected.
2
If the person referred to in subsection (1) above fails to fulfil a requirement imposed on him by that subsection, the roads authority may fulfil the requirement and recover the expenses reasonably incurred by them in so doing from that person.
3
A person who fails to fulfil a requirement imposed on him by subsection (1) above commits an offence.
F153A
Where the roads authority places or deposits anything on a road so as to cause an obstruction, or executes works in a road, they must comply with the requirements in paragraphs (a) to (d) of subsection (1).
4
A person who, without lawful authority or reasonable excuse, takes down, alters or removes any fence, barrier, shoring or other support or protection, or any traffic sign erected in pursuance of subsection (1) F16, (2) or (3A) above, or removes, interferes with or extinguishes any light placed in pursuance of F17any of those subsections to indicate an obstruction or works on or in any road commits an offence.
5
In this section—
“hours of darkness” means the time between half an hour after sunset and half an hour before sunrise; and
“specified” means specified by the Secretary of State in regulations.
F56
This section shall not apply to an undertaker executing road works, within the meaning of Part IV of the New Roads and Street Works Act 1991.
60AF8Safety measures: codes of practice
1
The Scottish Ministers may, for the purposes of section 60, and following consultation with such persons as they consider appropriate, issue or approve codes of practice giving practical guidance as to the matters mentioned in that section.
2
A code of practice under subsection (1) must be published in such manner as the Scottish Ministers consider appropriate as soon as reasonably practicable after it is issued or approved.
3
If (and in so far as) a person complies with such a code of practice, the person is to be taken to comply with the requirements imposed on the person by section 60(1) or, as the case may be, (3A).
4
A failure to comply with such a code of practice is evidence of a failure to comply with the requirements imposed on the person by section 60(1) or, as the case may be, (3A).
F1861 Granting of permission to place and maintain etc. apparatus under a road.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C6C761AF6Charge for occupation of road.
1
The Secretary of State may make provision by regulations requiring a person who occupies a public road by doing anything to which this section applies to pay a charge to the roads authority if the duration of the occupation exceeds the longer of the following periods—
a
such period as may be prescribed; or
b
such period as is agreed by the authority and the person to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable in the circumstances.
2
This section applies to the occupation of a public road by doing anything which would require the consent or permission of a roads authority under any of the following provisions of this Act—
section 56 (works executed in or excavations under a public road);
section 58 (occupation of road for deposit of building materials and erection of scaffolding);
section 59 (placing or depositing anything in a road);
F19...
section 85 (depositing a builder’s skip).
3
For the purposes of paragraph (b) of subsection (1) above, in default of agreement, the roads authority’s view as to what is a reasonable period shall be acted upon pending the decision of the arbiter.
4
The regulations may provide that if a person applying to the roads authority for consent or permission under any of the provisions of this Act specified in subsection (2) above submits together with his application an estimate of the likely duration of the occupation, the period stated in the estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
5
The regulations may provide that if it appears to the person occupying the road that by reason of matters not previously foreseen or reasonably foreseeable the duration of the occupation—
a
is likely to exceed the prescribed period,
b
is likely to exceed the period stated in the previous estimate, or
c
is likely to exceed the period previously agreed or determined to be a reasonable period,
he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the roads authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
6
The amount of the charge shall be determined in such manner as may be prescribed by reference to the duration and extent of the occupation and different rates of charge may be prescribed according to the purpose of the occupation and such other factors as appear to the Secretary of State to be relevant.
7
The regulations may make provision as to the time and manner of making payment of any charge.
8
The regulations shall provide that a roads authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.
9
In this section “prescribed” means prescribed by the Secretary of State by regulations.
61BF20Requirement for qualified supervisors and operatives
1
This section applies to any person (including a roads authority) executing—
a
works (other than road works within the meaning of section 107(3) of the New Roads and Street Works Act 1991) in or on a road or works which otherwise involve a person placing or depositing anything on a road so as to cause an obstruction—
i
to which the requirements of section 60(1)(b) or (c) apply, and
ii
which involve the placing of lights, fences, barriers or signs on a carriageway,
b
works in a road which involve—
i
breaking up the road, or any sewer, drain or tunnel under it, or
ii
tunnelling or boring under the road, and
c
works to subsequently reinstate the road.
2
The person executing the works must secure that—
a
the execution of the works is supervised by an individual having a prescribed qualification as a supervisor, and
b
there is on site at all times when any such works are in progress at least one individual having a prescribed qualification as a trained operative.
3
Where a roads authority are not the person who is executing the works, the authority may by notice require the person executing the works—
a
to notify the authority of the name of any individual who is or has been the supervisor, or trained operative, in respect of the work, and
b
to provide the authority with prescribed evidence of the requisite qualification of the individual.
4
The Scottish Road Works Commissioner may by notice require the roads authority—
a
to notify the Commissioner of the name of any individual who is or has been the supervisor or trained operative in respect of any work to which this section applies, and
b
to provide the Commissioner with prescribed evidence of the requisite qualification of the individual.
5
A notice under subsection (3) or (4) may—
a
require the notification of—
i
the name of an individual who was the supervisor or, as the case may be, trained operative at a particular time,
ii
all individuals who have been the supervisor, or as the case may be, trained operative,
b
be given at any time while the works are being executed or within such period after their completion as is prescribed.
6
A person who receives a notice under subsection (3) must comply with the requirements of the notice within the period and manner prescribed.
7
A person, other than a roads authority, who fails to comply with a duty imposed on the person by subsection (2) or (6) commits an offence.
8
A person who commits an offence under subsection (7) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
9
The Scottish Ministers may by regulations make provision for the purposes of this section, including provision—
a
specifying circumstances in which the duties in subsection (2) do not apply to a person executing works in a road,
b
specifying—
i
circumstances in which more than one trained operative must be on site at all times when work is in progress, and
ii
the number of trained operatives that must be on site in those circumstances,
c
about the approval of bodies conferring qualifications (and the withdrawal of such approval),
d
about the circumstances in which a qualification may be conferred,
e
about the form of any evidence to be issued by an approved body to certify or otherwise show that a qualification has been conferred on an individual.
10
In this section, “prescribed” means prescribed by the Scottish Ministers in regulations made under subsection (9).
11
This section does not apply to an undertaker executing road works, within the meaning of Part IV of the New Roads and Street Works Act 1991.