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Advice to Marrons

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Enquiry

From
Marrons
Date advice given
16 September 2011
Enquiry type
Email

The foot note to Article 8 of the Model Provisions (Street Works) provides that the Article should not be used in respect of trunk roads. We may be mistaken but cannot see a distinction in the New Roads and Street Works Act 1991 between ordinary roads and trunk roads (unless designated a special road and within s61 of the 1991 Act as a protected street). Can you please advise whether the foot note applies to all trunk roads and if so the provenance for this?

Advice given

The Department for Transport have confirmed our interpretation of the New Roads and Street Works Act 1991 (the 1991 Act), namely that no distinction is drawn in the 1991 Act between trunk and other roads (unless designated as a special road or within s.61 of the 1991 Act as a protected street). Rather, we understand from the Department that the footnote to Article 8 in the Model Provisions was included to address the operational needs of the Highways Agency (the Agency), as the highway and street authority for trunk roads, rather than for legal reasons.

In summary, we understand that the Agency considers that the logistical complexity of proposed street works to trunk roads, and uncertainty over which statutory undertakers would be involved means that there would be insufficient certainty when an application for development consent is submitted for a suitably worded article, to their satisfaction, to be included in a draft DCO. The Agency therefore considers it preferable for such works to be consented separately by way of an application for a licence under s.50 of the 1991 Act.

However, it seems to us possible that if such operational concerns could be addressed to the satisfaction of the Agency sufficiently early at the pre-application stage then potentially a suitably worded Article could be included in a draft DCO. This may depend (inter alia) on the nature and extent of the proposed works, and/or on the particular trunk road in question. In any event, we would suggest that this is something you or your client may wish to take up with the Agency.