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CONSULTATION DRAFT
Scottish Statutory Instruments
2007 No.
ROADS AND BRIDGES
The Road Works (Settlement of Disputes and Appeals against Directions) (Scotland) Regulations 2007
Made - - - - 2007
Laid before the Scottish Parliament 2007
Coming into force - - 2007
The Scottish Ministers, in exercise of the powers conferred by sections 115(2A), 115A(5), 117(7), 120(6), 121(5), 133(2), 143(3), 155(3) and 157A of and paragraphs 2(1) and 12(2) of Schedule 6 to the New Roads and Street Works Act 1991(a) and section 18(3) of the Transport (Scotland) Act 2005(b) and of all other powers enabling them in that behalf, following consultation in terms of section 163A of the 1991 Act(c) , hereby make the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Road Works (Settlement of Disputes and Appeals against Directions) (Scotland) Regulations 2007 and shall come into force on [ ] 2007.
Interpretation
2. In these Regulations-
"the 1991 Act" means the New Roads and Street Works Act 1991; and
"the Commissioner" means the Scottish Road Works Commissioner created by section 16(1) of the Transport (Scotland) Act 2005.
Prescribed method of settlement of certain disputes under the 1991 Act
3. -(1) Any question or dispute to be settled under the provisions of the 1991 Act mentioned in paragraph (2) shall be settled by the Commissioner.
(1) Those provisions are-
(a) section 117(7) (consent to contravene restriction on works following substantial road works);
(b) section 120(6) (protected roads: consent as to placing of apparatus);
(c) section 121(5) (exercise of powers in relation to protected roads);
(d) section 143(3) (measures necessary where apparatus affected by major works);
(e) section 155(3) (disputes about costs and expenses); and
(f) in Schedule 6 (roads with special engineering difficulties), paragraphs 2(1) and 12(2).
Prescribed method of settling disagreements under section 18(3) of the 2005 Act
4. Where a disagreement arises under section 18(3) of the Transport (Scotland) Act 2005, the matter shall be settled by arbitration.
Appeals against directions under sections 115 and 115A of the 1991 Act
5. - (1)An undertaker who has been given directions under section 115 or 115A of the 1991 Act by a road works authority may, within 28 days after those directions are given, appeal against those directions to the Commissioner.
(2) On receipt of an appeal from an undertaker the Commissioner shall fix a date for a hearing, that date being not later than 14 days following receipt of the appeal, and notify the undertaker and the road works authority concerned of that hearing date.
(3) Subject to paragraphs (4) to (8) and (13), the Commissioner may make such arrangements as the Commissioner considers appropriate for the hearing of appeals under paragraph (1).
(4) The persons entitled to appear or be represented at the hearing shall be the undertaker and the road works authority.
(5) Any person authorised by any of the parties to the hearing shall be entitled to appear on behalf of that party whether or not that person is an advocate or a solicitor.
(6) The Commissioner may receive oral, documentary or other evidence of any fact which appears to the Commissioner to be relevant to the appeal, notwithstanding that such evidence would be inadmissible in a court of law.
(7) The Commissioner, either of the Commissioner's own accord or on the motion of any party, may from time to time adjourn a hearing and if the date, time and place of the adjourned hearing are announced before the adjournment, and if all parties are present or represented when such an announcement is made, no further notice shall be required.
(8) If the Commissioner adjourns a hearing without announcing the date, time and place of the adjourned hearing, or if all the parties are not present or represented when such an announcement is made, notification of the adjourned hearing shall be given in accordance with paragraph (2).
(9) The Commissioner shall determine the appeal within 7 days after the hearing.
(10) In determining an appeal the Commissioner may-
(a) confirm the directions given by the road works authority; or
(b) vary or revoke those directions,
and any such determination of the Commissioner is final and binding upon the undertaker and the road works authority.
(11) A determination of the Commissioner under paragraph (10) together with a statement of reasons for that determination shall be notified to the undertaker and the road works authority as soon as practicable after it is made and no later than 7 days after the determination is made.
(12) Where any notice is required under this regulation to be given by the Commissioner to the parties, it shall be sufficient if such notice is sent by post by recorded delivery to the party for whom it is intended at that party's usual or last known address or, if that party has appointed an agent to act on their behalf in relation to the appeal, to that agent at the address of the agent supplied to the Commissioner.
(13) The Commissioner may, with the agreement of the undertaker and the road works authority concerned, determine an appeal under paragraph (1) within 7 days on the basis of written submissions of the parties without oral evidence being given at a hearing and in such circumstances paragraphs (10) to (12) shall apply subject to the necessary modifications in relation to any such appeal.
A member of the Scottish Executive
St Andrew's House,
Edinburgh
2007
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations prescribe the method of settling certain disputes under Part 4 of the New Roads and Street Works Act 1991 ("the 1991 Act") and provide for appeals against directions given under sections 115 and 115A of the 1991 Act.
Regulation 3 prescribes that any question or dispute to be settled under the provisions of the 1991 Act listed in regulation 3(2) are to be settled by the Scottish Road Works Commissioner ("the Commissioner").
Regulation 4 prescribes that where a disagreement arises under section 18(3) of the 2005 Act (relating to whether information asked for by the Commissioner under section 18(1) is reasonably asked for), the matter shall be settled by arbitration.
Regulation 5 makes provision for appeals by undertakers against directions given by a road works authority under sections 115 (directions as to timing of works) and 115A (directions as to placing of apparatus) of the 1991 Act. Appeals are to the Commissioner and paragraphs (2) to (13) provide for the procedure to be followed on appeal.
Footnotes
(a) 1991 c.22. Sections 115(2A), 115A(5) and 157A were inserted by sections 20(4), 21(1) and 36(4) of the Transport (Scotland) Act 2005 (asp 12) ("the 2005 Act") respectively. Sections 117(7), 120(6), 121(5), 133(2), 143(3), 155(3) and paragraphs 2(1) and 12(2) of Schedule 6 were amended by section 36 of the 2005 Act. The functions of the Secretary of State were transferred by virtue of section 53 of the Scotland Act 1998 (c.46).
(b) 2005 asp 12.
(c) Section 163A was inserted by section 39 of the 2005 Act.
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