Arrangement of Clauses (Contents)

Transport for London Bill

 

EXPLANATORY MEMORANDUM

This Bill provides Transport for London with further powers in respect of its responsibilities relating to congestion charging, London cabs and private hire vehicles, penalty fares, street management and miscellaneous matters.

PART 1

PRELIMINARY

    Clause 1 deals with citation and commencement, and Clause 2 with definitions of certain expressions used in the Bill.

    Clause 3 provides for certain provisions of the Bill to come into operation on a day or on days to be appointed by Transport for London ("TfL").

PART 2

CONGESTION CHARGING

    Clause 4 deals with the interpretation of Part 2 of the Act.

    Clause 5 enables a TfL charging scheme to make it a summary offence punishable by a fine not exceeding level 2 on the standard scale for a person to contravene, or to fail to comply with, any specified requirement of a TfL scheme. Paragraphs 25 and 27 of Schedule 23 to the Greater London Authority Act 1999 ("the 1999 Act") create certain specific offences relating to charging schemes. However, those offences only apply in the specific circumstances described in paragraphs 25 and 27 and do not apply to other failures to comply with requirements of a charging scheme. Clause 5 fills this gap.

    Subsection (2) makes it clear that the power to create further offences under Clause 5 is not intended to replace the specific offences relating to congestion charging provided by other statutory provisions.

    Clause 6 enables TfL to make provision in TfL congestion charging schemes to extend the existing powers to clamp and remove vehicles found in a charging area where the congestion charge has not been paid. The existing powers in the TfL scheme are included by virtue of the powers in the Road User Charging (Charges and Penalty Charges) (London) Regulations 2001 ("the Charges and Penalty Charges Regulations") made under paragraph 27 of Schedule 23 to the 1999 Act. Paragraph 31 of Schedule 23 provides that a TfL charging scheme may not authorise the examination, for any purpose relating to or connected with congestion charging, of a motor vehicle found within a charging area at a time at which the vehicle is not on the road nor the clamping or removal of a motor vehicle found in a charging area at a time at which the vehicle is not on a road.

    Clause 6 amends the Charges and Penalty Charges Regulations and paragraph 31 of Schedule 23 so as to enable provision to be made in TfL schemes for examining, clamping or removing motor vehicles found within the charging area which are not on roads but are in public off-street parking places as defined in Clause 6. This would include vehicles which are parked off street in council or other public car parks but not in private driveways. TfL cannot enter a public off-street parking place to exercise the powers to examine, clamp or remove vehicles without the consent of the operator, which cannot be unreasonably withheld.

    Clause 7 clarifies TfL's ability to suspend, or partially suspend, the operation of a TfL scheme for such period or periods as TfL think fit. For example, a TfL scheme may be suspended where there is a change of technology.

    Clause 8 makes it an offence for a person who has the benefit of an exemption from congestion charges to fail to notify relevant changes in circumstances. Article 9 of the Central London Congestion Charging Scheme 2001 (as varied) made under Schedule 23 to the 1999 Act requires TfL to maintain a register of non-chargeable, reduced rates and resident's vehicles for the purposes of administering the provisions in the Scheme which give exemptions from congestion charges or reduced rates of charges for certain vehicles or vehicles owned by qualifying residents. Under article 9 the registered keeper of a vehicle or a qualified resident in relation to whom particulars of a vehicle are entered in the register is required to notify TfL if he is aware that his vehicle has or will cease to be a non-chargeable, reduced rate or resident's vehicle.

    Clause 8 creates a summary offence punishable by a fine not exceeding level 2 on the standard scale for failure to comply with a notification requirement in a TfL charging scheme. The provision is drafted in general terms so as to apply not only to the notification requirement in article 9 of the current Congestion Charging Scheme but also to any other similar notification requirements which may be contained in future TfL charging schemes.

PART 3

LONDON CABS AND PRIVATE HIRE VEHICLES

London cabs: general provisions

    Clause 9 makes provision as regards directional taxi ranks. Under section 35 of the London Hackney Carriage Act 1831 and section 17 of the London Hackney Carriage Act 1853 the driver of a London cab which is standing in a street is deemed to be plying for hire and it is an offence for him to refuse to take any person wishing to hire the cab on a journey provided it is less than a specified distance or time. Clause 9 enables TfL to designate directional taxi ranks for cab drivers who wish to ply for hire only for journeys in a particular direction specified in a cab order. The provision requires TfL to cause a sign clearly indicating the specified direction to be displayed at the rank. The drivers of cabs standing at such ranks would be able to refuse to accept journeys unless they are in the specified direction. A directional taxi rank can be designated as such for all times or for only certain times of the day, days or other periods.

    Clause 10 enables TfL to designate the whole or part of any taxi rank to be a rest rank. The provision requires TfL to cause a sign clearly indicating that the rank is a rest rank to be displayed at the rank. The cab order designating the rest rank could also prescribe the maximum time any driver is permitted to stand his cab in the rest rank. The drivers of cabs standing at such ranks would be able to refuse to accept journeys. Like a directional taxi rank, a rest rank can be designated as such for all times or for only certain times of the day, days or other periods.

    Clause 11 makes provision to change the tickets issued to taxi drivers to badges. Section 8 of the London Hackney Carriages Act 1843 provides that drivers of hackney carriages must be issued with metal "tickets". Clause 11 amends section 8 and the other provisions of the 1843 Act so as to change the term "ticket" to "badge" and removes the requirement that the badge must be made of metal.

    Clause 12 makes provision to prevent TfL disclosing the address of the holder of a cab licence to any person unless it appears to TfL that that person has sufficient reason for requiring that information.

    Clause 13 changes the price payable by taxi drivers for a replacement badge. Section 19 of the London Hackney Carriages Act 1843 allows cab drivers to obtain a replacement metal "ticket" at such sum, not exceeding 15p, as TfL shall from time to time appoint. Clause 13 changes the price payable for a replacement badge to such sum as TfL shall consider reasonable.

    Clause 14 extends the time limit for making complaints for cab driving offences. Section 38 of the London Hackney Carriages Act 1843 provides that complaints under that Act, the London Hackney Carriage Act 1831 or regulations made under those Acts must be made within 7 days after the cause of the complaint has arisen. Clause 14 removes this requirement with the effect that the general provision in section 127 of the Magistrates' Courts Act 1980 applies and the period for making a complaint is extended to 6 months.

    Clause 15 makes provision regarding the fares for cab journeys which start within London but end outside London. At present there is some doubt as to whether the controls on cab journeys contained in paragraph 1 of section 17 of the London Hackney Carriage Act 1853 and the London Cab Order 1934 apply where the driver of a cab makes a demand for a fare outside London. Clause 15 amends the London Cab and Stage Carriage Act 1907 by providing that the driver and passenger may agree a negotiated fare at the commencement of the journey but, in the absence of such an agreement, the fare payable is that on the taximeter. Demanding more or taking more than the proper fare is made a summary offence punishable with a fine not exceeding level 3 on the standard scale.

    The offence and penalty is the equivalent to the offence under paragraph 1 of section 17 of the 1853 Act which applies to journeys wholly within London.

    Clause 16 provides that a notice under section 2 of the London Hackney Carriage Act 1853 that a cab is not in a fit condition may be served on the driver of the cab as well as its proprietor. If a notice is served either on the proprietor or on the driver, and the cab is used in contravention of the notice, the vehicle licence may be suspended. At present the notice must be served on the proprietor for the vehicle licence to be suspended.

London cabs: fixed penalties

    Clauses 17 to 21 and Schedules 1 and 2 provide a regime for fixed penalties as regards certain offences relating to London cabs which is similar to that provided as regards certain offences under the Highways Act 1980 by sections 8 to 11 of, and Schedules 2 and 4 to, the London Local Authorities and Transport for London Act 2003.

    Clause 17 makes the offences specified in Schedule 1 to the Act, which relate to London cabs, fixed penalty offences. Where on any occasion a constable or authorised officer of TfL believes that a person has committed an offence specified in Schedule 1, he may serve the person concerned with a notice ("a fixed penalty notice") on the spot offering him the opportunity of paying a fixed penalty instead of being prosecuted for the offence. Schedule 2, introduced by subsection (3), makes provision relating to the keeping of accounts and application of money received by way of fixed penalties. TfL may apply the amounts received for any of the cab or private hire vehicle related purposes specified in paragraph 2(4) of Schedule 2.

    Clause 18 enables TfL by order to amend Schedule 1 by making further cab or private hire vehicle offences into fixed penalty offences or by removing offences from the regime. The power could only be exercised with the consent of the Secretary of State and after consultation with the Mayor, the Greater London Assembly, every London borough council and such persons or bodies appearing to TfL to be representative of persons who would be affected.

    Provision is made for notice of any such order to be given to the consultees and published in a local newspaper and The London Gazette.

    Clause 19 provides for fixed penalty notices to be given in respect of fixed penalty offences under Clause 17. Subsection (2) of Clause 19 provides that where a fixed penalty notice is served, the recipient cannot be convicted of the offence in question if he pays the fixed penalty within 14 days from the date of the notice. No proceedings can be instituted for the offence until the end of that period. Subsections (3) to (5) contain provisions relating to the contents, manner of service and form of fixed penalty notices. Subsection (6) provides that the fixed penalty must be paid to TfL. Subsection (7) provides that a certificate signed by TfL's chief finance officer stating that a fixed penalty was or was not received by a specified date is evidence of the facts stated in the notice.

    Clause 20 gives TfL the function of setting the levels of fixed penalties and enables different levels to be set for different cases or classes of case. In setting the levels, TfL may take account of the costs or expected costs of administering and enforcing the provisions of the enactment under which the fixed penalty offence is created. TfL is required to publish the levels of fixed penalties in the same way as it publishes additional parking charges under section 74 of the Road Traffic Act 1991. Additional parking charges are publicised in such manner as the Mayor of London determines.

    Clause 21 requires TfL to notify the Secretary of State of the levels of fixed penalties set by TfL. The levels cannot come into force until the end of one month from the date of notification (or any shorter period allowed by the Secretary of State). If the Secretary of State objects to the levels within the one month period, they cannot come into force and the Secretary of State may instead make regulations setting the levels. Where the levels are set by regulations, TfL cannot propose any changes in the levels for a period of twelve months.

Private hire vehicles

    Clause 22 makes provision as regards the production by a London PHV vehicle of its licence and badge. Section 14(3) of the Private Hire Vehicles (London) Act 1998 ("the 1998 Act") requires a London PHV driver to wear the badge issued to him under the Act in such a position and manner as to be visible. Subsection (1) of Clause 22 amends that provision so as to require a PHV driver, in addition, to produce his badge for inspection if so requested. This would ensure that any person such as a potential customer or constable can examine the badge closely enough to ascertain that the driver is licensed. Similar requirements apply to London cab drivers under section 17 of the London Hackney Carriages Act 1843.

    Subsection (3) of Clause 22 amends section 21 of the 1998 Act so as to require the driver of a private hire vehicle on a road in London to carry his licence with him and to produce it for inspection if so required by a constable or a person authorised by TfL. Similar requirements apply to London cab drivers under paragraph 28 of the London Cab Order 1934. Currently drivers of public hire vehicles have up to 6 days to produce their licence for inspection.

    Subsections (2) and (4) of Clause 22 make amendments to the 1998 Act which are consequential on the amendments made in subsections (1) and (3).

    Clause 23 makes provision as regards the return of licences which have been suspended or revoked. Section 17(2) of the 1998 Act enables TfL to suspend or revoke a London PHV operator's licence, a London PHV licence or a London PHV driver's licence with immediate effect if TfL is of the opinion that this is required in the interests of public safety. There is also power under section 9(3) of the 1998 Act for a constable or officer authorised by TfL to suspend a London PHV licence if he is not satisfied as to the fitness of the relevant vehicle.

    Clause 23 amends section 22 of the 1998 Act so as to require the holder of a London PHV operator's licence, a London PHV licence or a London PHV driver's licence which has been suspended or revoked with immediate effect to return the licence forthwith to a constable or officer authorised by TfL if so requested. The holder of a London PHV driver's licence who is required to return it in these circumstances may also be required to return his driver's badge forthwith. Where a London PHV licence is required to be returned, the owner of the vehicle may also be required to return forthwith every plate or disc which was issued for the vehicle under section 10 or any regulations made under the 1998 Act.

    Subsections (4) and (8) of Clause 23 also make amendments to the 1998 Act to reflect the fact that TfL issues two identification discs for each licensed private hire vehicle, one under section 10 of the 1998 Act and the other under paragraph 11 of Schedule 2 to the Private Hire Vehicles (London PHV Licences) Regulations 2004.

    Clause 24 amends section 4(3)(d) of the 1998 Act which requires a licensed PHV operator to keep records of particulars of all private hire vehicles and drivers available to carry out bookings at each of his specified operating centres. Clause 24 amends that provision so that those records are only required to be kept at one of the specified operating centres. A notice must be displayed at each specified operating centre stating the address of the operating centre where those records are kept.

    Clause 25 amends section 23(1) of the 1998 Act which requires TfL to maintain a register of licences granted under that Act and to make the register available for public inspection free of charge. The name and address of each licence holder must be included in the register. Clause 25 amends section 23 so as to remove the requirement for each licence holder's address to be contained in the register which is open to public inspection. Under the amended provision TfL will be required to keep a supplemental register containing the address of each licence holder and may only disclose the address to a person if it appears to TfL that that person has sufficient reason for requiring that information.

PART 4

SURFACE TRANSPORT

    Clause 26 amends Schedule 17 to the 1999 Act which provides for the payment of penalty fares. This regime may be applied by order to any local service or train service provided by TfL or any of its subsidiaries or by other persons under arrangements made with TfL. The penalty fare provisions have been applied to all TfL local bus services, London Underground and to Docklands Light Railway.

    Paragraph 5 of Schedule 17 initially set the amount of the penalty fare for a local service at £5 and at £10 for a train journey and gave power to the Mayor to change those fares by order. The levels are currently set at £20 for both local services and train journeys. There is no provision for reduced rates for early payment. A modified version of Schedule 17 currently applies in relation to the Croydon Tramlink. This does allow for a reduced rate of penalty fare to apply if paid within 21 days. The current levels are £20 and £35.

    Clause 26 amends paragraph 5 of Schedule 17 to the 1999 Act so as to provide an early payment regime. It provides that a penalty fare of £50 is payable for both local services and train journeys but this is reduced to £25 if payment is made before the end of 21 days. The existing power in paragraph 5(2) of Schedule 17 for the Mayor to change those levels is retained.

    Under subsection (4) the amendments made by subsection (1) will automatically have effect with respect to the services to which the penalty fare provisions in Schedule 17 have been applied. It is intended that relevant orders will be made to apply the standard penalty fare provisions in Schedule 17 to Croydon Tramlink so that a uniform regime will apply to all services subject to penalty fares.

    Subsection (5) provides that the changes made by Clause 26 do not apply where a person has become liable to pay a penalty fare before Clause 26 comes into force.

    Clause 27 makes provision as to the enforcement of penalty fares. Paragraph 7(1) of Schedule 17 to the 1999 Act provides that a person who is required to pay a penalty fare but does not do so may be required to give his name and address to a person authorised by TfL. Subsection (2) of Clause 27 amends that provision by providing that any persons found without a valid ticket may be required to give their name and address irrespective of whether they have been required to pay a penalty fare or have paid it.

    This will enable TfL to ascertain whether or not persons travelling without tickets are repeat offenders and make use of that information when deciding whether to caution them, require them to pay penalty fares or to prosecute them.

    Subsection (3) enables a person authorised by TfL to continue to exercise the powers under Schedule 17 to require passengers to produce their fare tickets or general travel authorities or to give their names and addresses, after they have alighted from the vehicle in question. The current powers under paragraph 3(1) of Schedule 17 envisage that powers to require a person to produce a fare ticket or general travel authority will be exercised while the passenger is travelling on the service in question.

    Clause 28 provides that TfL shall be a relevant authority for the purposes of Chapter 1 of Part 1 of the Crime and Disorder Act 1998 ("the 1998 Act") which makes provision relating to anti-social behaviour orders. The 1998 Act enables relevant authorities to make applications for anti-social behaviour orders where a person has acted in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself and that such an order is necessary to protect relevant persons from further anti-social acts by him.

    TfL would be enabled to apply for anti-social behaviour orders to protect relevant persons as defined by Clause 28. Those are persons who are on or in the vicinity (or likely to be on or in the vicinity) of premises or vehicles used for TfL local bus services, the London Underground, London Docklands Light Railway, Croydon Tramlink and other bus and train services provided under arrangements with TfL. If there was a breach of such an order, TfL could bring further proceedings under the 1998 Act.

    Currently TfL is involved in gathering and producing evidence relating to the anti-social behaviour process under the 1998 Act. TfL has, in effect, been the instigating authority for numerous anti-social behaviour orders involving the transport services for which it has statutory responsibility but all applications for orders or other proceedings have had to be made through the British Transport Police or the Metropolitan Police. Inclusion of TfL as a relevant authority will enable TfL to make applications for orders and bring further proceedings in cases where TfL is the public authority primarily concerned without the need to go through the police.

PART 5

STREET MANAGEMENT

    Clause 29 deals with the interpretation of Part 5.

    Clause 30 makes provision for TfL which is equivalent to that made under section 10(6) of the Highways Act 1980 ("the 1980 Act") as regards local authorities. Section 10(2) of the 1980 Act makes provision for the Minister to make orders designating highways or proposed highways as trunk roads and converting trunk roads into local highways. Where the Minister proposes to make such an order, the procedure in Part I of Schedule I to the 1980 Act contains procedural requirements including serving a council in whose area the highway or proposed highway is situated with notice of the proposed order and copies of the relevant documents. If a council who are responsible for the maintenance of a highway which is proposed to be a trunk road, or who will become so responsible if the order is made, object to the proposed order, the order is subject to special parliamentary procedure under section 10(6) unless the objection is withdrawn. However, no equivalent provision is made as regards TfL and GLA roads.

    Clause 30 applies where a proposed order under section 10(2) of the 1980 Act would convert a GLA road into a trunk road or would convert a trunk road into a GLA road. Part I of Schedule I to the 1980 Act is amended to require TfL to be served with notice of the proposed order and copies of the relevant documents. Section 10(6) of the Act is amended so that if TfL objects to the order it will be subject to special parliamentary procedure.

    The effect of Clause 30 is to put TfL into the same position as any other local highway authority.

    Clause 31 amends section 11 of the 1980 Act which provides that when a highway becomes a trunk road, any functions of construction, maintenance or improvement exercisable as respects that highway by a council under a local or private Act become exercisable by the Minister instead of by the council. Clause 31 amends section 11 so as to provide that where a GLA road becomes a trunk road under section 10(2) of the 1980 Act, any such functions relating to the GLA road which are exercisable by TfL shall instead become exercisable by the Minister.

    Clause 32 makes provision as regards privately maintainable bridges carrying GLA roads. Sections 93 and 94 of the 1980 Act make provision as regards the reconstruction, maintenance and improvement of privately maintained bridges which carry a highway over a railway, canal, river or other watercourse or depression. Section 93 enables the owner of a road bridge or the local authority where they consider the bridge to be dangerous or in need of improvement to apply to the Minister for an order making provision for the reconstruction or improvement of the bridge. Such an order can, for example, require the owner or the local highway authority to carry out works to the bridge or for responsibility for the bridge to be transferred to the local highway authority. Section 94 enables the highway authority and owner to enter into agreements relating to the bridge such as the payment by the authority of contributions towards the cost of works to the bridge or the transfer to the authority of responsibility for its improvement and maintenance.

    While it is clear that the powers in sections 93 and 94 are intended to be exercisable by the local highway authority concerned, section 94 states, without qualification, that the powers, in the case of a bridge in Greater London, are exercisable by the council of the borough in which it is situated or, if it is in the City of London, by the Common Council of the City of London. Section 95 is defective in that it does not make any provision for GLA roads for which TfL is the local highway authority.

    Clause 32 amends section 95 to provide that the powers of section 93 and 94 are exercisable by TfL in the case of bridges carrying GLA roads. This amendment merely reflects the fact that TfL is the local highway authority in the case of GLA roads.

    Clause 33 enables TfL to erect flag poles, pylons and other structures on GLA roads for the purposes of displaying decorations. Where the GLA road is carried, or forms part of the approaches of, a privately maintainable bridge the consent of the owner of the bridge must be obtained. That consent may be granted on terms, including terms enabling the owner to remove the flag poles etc, to reinstate the bridge and to recover the reasonable costs of doing so from TfL.

    Subsection (4) makes provision to secure the safety of road users by requiring TfL in the exercise of the powers, to ensure that the works do not obstruct the road, obscure traffic signs or interfere with the enjoyment of adjacent premises or the apparatus of utilities. The works must be properly maintained and, so far as is necessary, properly lit.

    Subsection (5) makes it a summary offence punishable by a fine not exceeding level 3 on the standard scale to interfere with or remove works provided under the clause.

    The powers in Clause 33 are similar to those of the relevant London local authorities under section 144 of the 1980 Act.

    Clause 34 enables TfL to serve a 28 day notice on the owner or occupier of land adjoining a GLA road requiring the owner or occupier to carry out works to prevent soil or refuse from the land falling on to and obstructing the GLA road or choking a sewer or gully. Failure to comply with the notice is made a summary offence punishable with a fine not exceeding level 3 on the standard scale. There is a daily penalty of £50 for each day on which the offence continues. Subsection (4) applies section 311 of the 1980 Act under which, if the offence in respect of which the person was convicted is continued after conviction, the court before whom the person is convicted of the original offence may fix a reasonable period from the date of conviction for compliance by the defendant with any directions given by the court. Where such a period is fixed, the defendant is not liable to a fine for any day before the end of the period.

    Provision is made by subsection (2) for a person aggrieved by a requirement under Clause 34 to appeal to a magistrates' court.

    Before serving a notice under Clause 34, TfL is required to serve not less than 7 days notice on the local authority, or each local authority, in whose area the GLA road is situated.

    The powers in Clause 34 are similar to those of the relevant London local authorities under section 151 of the 1980 Act but a notice under Clause 34 would not have effect in a case where an equivalent notice had been served by the London local authority under section 151. As provided by subsection (7) Clause 34 does not affect the exercise of the powers under section 151.

    Clause 35 enables TfL to serve a notice on the owner or occupier of land adjoining a GLA road on which there is a source of danger to persons using the road. The notice may require the owner or occupier to carry out fencing or other works within a specified period of time to prevent the danger.

    Under subsection (2) a person who is aggrieved by a requirement in a notice may appeal to a magistrates' court.

    Under subsection (3) if a person fails to comply with a requirement in the notice, TfL may carry out the necessary works and recover the reasonable expenses of doing so from the person concerned.

    Before serving a notice under Clause 35, TfL is required (except in a case of emergency) to serve not less than 7 days notice on the London local authority, or each local authority, in whose area the GLA road is situated. In an emergency TfL would be required to notify the local authority at the same time as, or as soon as reasonably practicable after, serving the notice.

    The powers in Clause 35 are similar to those of London local authorities under section 165 of the 1980 Act but a notice under Clause 35 would not have effect in a case where an equivalent notice had been served by a London local authority under section 165. Subsection (7) provides that powers exercised under this Clause by TfL will not affect the exercise by London local authorities of those powers.

    Clause 36 gives TfL powers as regards dangerous forecourts abutting on GLA roads. Section 166 of the 1980 Act confers power on a competent authority to serve a notice on the owner or occupier of a forecourt of premises adjoining a street if the forecourt or any steps or projection or goods on the forecourt is or are a source of danger, obstruction or inconvenience to the public. The notice may require the owner or occupier to fence the forecourt or to take other steps to prevent the danger, obstruction or inconvenience. A notice may also be served as respects a stall or erection on the forecourt of premises which is injurious to the amenities of the street.

    For the purposes of section 166, the competent authority, in the case of a highway outside Greater London, is the local authority and also the highway authority. But in the case of a highway within Greater London, the competent authority is only the local authority. In most cases in Greater London the local authority is also the highway authority so no additional mention is needed for the highway authority. However, that is not the case for GLA roads, where TfL is the highway authority.

    Clause 36 amends section 166 to provide that, in the case of a GLA road, the competent authority is the local authority and TfL, the highway authority. The effect is that the powers of section 166 are exercisable in relation to a GLA road both by TfL and by the relevant London local authority as is the case for a highway outside Greater London.

    Before serving a notice under Clause 36, TfL is required (except in the case of emergency) to serve not less than 7 days notice on the local authority, or each local authority, in whose area the GLA road is situated. In an emergency TfL would be required to notify the local authority at the same time as, or as soon as reasonably practicable after, serving the notice. A notice served under Clause 36 would not have effect in a case where an equivalent notice had been served by a London local authority under section 166.

    Clause 37 makes provision to secure the safety of users of GLA roads where a retaining wall is within 3.66 metres of a GLA road and is higher than 1.37 metres above the ground level of the road. Where such a retaining wall is in a condition which may endanger persons using the road, TfL may serve a notice on the owner or occupier of the land on which the retaining wall is situated requiring him to carry out the works necessary to make the wall safe.

    Subsections (3) and (4) apply provisions in the Public Health Act 1936 relating to appeals and enforcement. Under those provisions a person served with a notice requiring him to carry out works may appeal to a magistrates' court on certain specified grounds and there is a further right of appeal to the Crown Court. Subject to such appeals, if the person on whom the notice is served fails to carry out the works TfL may itself carry them out and recover the expenses reasonably incurred in doing so. Failure to comply is also a summary offence punishable with a fine not exceeding level 4 on the standard scale and with a fine not exceeding £2 for every day on which the default continues.

    Before serving a notice under Clause 37, TfL is required (except in a case of emergency) to serve not less than 7 days notice on the local authority, or each local authority, in whose area the GLA road is situated. In an emergency TfL would be required to notify the local authority at the same time as, or as soon as reasonably practicable after, serving the notice.

    The powers in Clause 37 are similar to those of London local authorities under section 167 of the 1980 Act but a notice under Clause 37 would not have effect in a case where an equivalent notice had been served by a London local authority under section 167. Subsection (9) provides that powers exercised under this Clause by TfL will not affect the exercise by London local authorities of their powers under section 167.

    Clause 38 amends the meaning of competent authorities for the purposes of section 287 of the 1980 Act where the street in question is a GLA road so as to make TfL a competent authority as well as the relevant London local authority.

    Section 287 of the 1980 Act makes provision as respects the erection of barriers in streets for the purpose of securing public order or public safety or preventing congestion of traffic. In the case of emergency or on any special occasion where it is likely that a street will be thronged or obstructed, a competent authority may cause barriers to be erected in the street and kept in position for so long as is necessary.

    The powers cannot be exercised in such a manner as to deprive pedestrians of reasonable access to any premises and Schedule 8 to the 1980 Act makes provision requiring a competent authority to obtain certain consents. The removal of a barrier provided under section 287 is an offence.

    Clause 39 amends the meaning of competent authorities for the purposes of section 300 of the 1980 Act so as to include TfL as well as the relevant local authorities.

    Section 300 of the 1980 Act enables competent authorities to use appliances or vehicles for cleansing, maintaining or improving footways or their verges and for certain other purposes notwithstanding any statutory provision prohibiting or restricting the use of footways. Regulations may be made by the Secretary of State prescribing the conditions under which those powers are exercisable.

Provision of amenities or services on certain GLA roads

    Clauses 40 to 46 confer on TfL powers relating to the provision of amenities or services on certain GLA roads.

    Clause 40 defines the categories of GLA roads in relation to which Clauses 41 to 46 apply ("relevant GLA roads").

    Clause 41 confers powers on TfL to carry out works on, in or over a relevant GLA road or to place objects or structures on a relevant GLA road to enhance the amenity of the road and its immediate surroundings (such as, for example, by providing lawns, trees, shrubs or plants) or to provide a service to the public. The powers to place objects or structures on the road are subject to obtaining the consent of the frontagers with an interest both to the works and to the purposes for which they will be used. The powers in Clause 41 are similar to those of London local authorities under section 115B of the 1980 Act.

    Clause 42 confers power on TfL to provide, maintain and operate facilities for recreation or refreshment on a relevant GLA road. Where the facilities are to be provided on a footway in relation to which no traffic order is in force, the consent of frontagers with an interest must be obtained. The powers in Clause 42 are similar to those of London local authorities under section 115C of the 1980 Act.

    Clause 43 provides that TfL may, in the exercise of the powers of Clause 41 or 42, restrict the access of the public to any part of a relevant GLA road. However, this power is subject to various limitations. TfL may not prevent non-vehicular traffic from entering or passing along the road or having normal access to adjoining premises. The use of the road by vehicles which is not prohibited by a traffic order cannot be prevented and access to the apparatus of statutory undertakers or electronic communications apparatus must be preserved.

    Clause 44 makes provision for notices to be published before the exercise of any power conferred by Clause 41 or 42. The notice must be displayed at or near a place where the proposal relates and a copy must be served on the owner and occupier of any premises appearing to TfL to be likely to be materially affected. The notice must give not less than 28 days within which representations regarding the proposal may be made to TfL. Any such representations must be taken into consideration by TfL before the exercise of the power.

    A notice is not required where TfL proposes to exercise a power regarding a road in relation to which a traffic order has been made.

    Clause 45 provides that TfL must obtain the consent of any local authority for the area in which TfL proposes to exercise a power under Clause 41 or 42 before exercising that power.

    Clause 46 provides that any consent required under Clauses 41, 42 or 45 may not be unreasonably withheld but may be given subject to any reasonable conditions. Consent is deemed to have been given if TfL has served a notice asking for consent on a person and he fails within 28 days to give notice of his consent or his refusal to give it. Any question whether consent is unreasonably withheld or is given subject to reasonable conditions may be referred to arbitration.

    Subsections (4) to (7) make provision as to arbitration under this clause.

PART 6

MISCELLANEOUS

    Clause 47 confers power on TfL to enter into derivative investments for the purpose of limiting the extent to which TfL, a subsidiary or a connected undertaking of TfL will be affected by changes in the interest rates or exchange rates. This will enable TfL to enter into certain swaps transactions.

    Subsection (3)(c) defines a derivative investment for the purposes of Clause 47 as including an instrument giving entitlements to investments, an option, a future or a contract for differences. These expressions are, in turn, defined in subsection (3). The various permitted transactions all provide, by different means, ways in which arrangements can be made to mitigate risk by changes in interest rates or exchange rates.

    Clause 48 clarifies section 215(1) of the 1999 Act. Where a PPP agreement is or has been entered into under the 1999 Act, TfL has power under section 215(1) of that Act to enter into and carry out other agreements in connection with the PPP agreement. Clause 48 makes it clear that TfL may enter into and carry out such agreements even if TfL has not been party to the PPP agreement and that such agreements need not relate to the provision of property or rights relating to the PPP agreement or support or be consequential upon entering into the PPP agreement.

    Clause 49 gives TfL power to carry out certain insurance related activities. Section 19 of the Financial Services and Markets Act 2000 ("the 2000 Act") prohibits a person who is not an authorised person or an exempt person from carrying out any regulated activity. The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ("the Regulated Activities Order") made by the Treasury under section 22 of the 2000 Act specifies the kinds of activities that are regulated activities for this purpose. The Financial Services and Markets Act 2000 (Exemption) Order 2001 ("the Exemption Order") made under section 38 of the 2000 Act provides for various exemptions from the general prohibition. Under article 47 of the Exemption Order a local authority is exempt from the general prohibition in section 19 of the 2000 Act in respect of certain regulated activities.

    Clause 49 provides that TfL shall be exempt from the general prohibition in section 19 of the 2000 Act in respect of the activities relating to non-qualifying contracts of insurance (as defined in the Exemption Order) set out in paragraphs (a) to (e) of subsection (1). These are the activities specified in articles 21, 25(1), 25(2), 39A and 53 of the Regulated Activities Order and are all activities in respect of which local authorities are exempt under article 47(a) of the Exemption Order.

    Clause 50 confers an exemption on TfL from section 21(1) of the 2000 Act which imposes a general restriction on financial promotion. An exemption for certain bodies from that restriction is provided in article 34 of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005. Clause 50 will extend to TfL the same exemption as is currently enjoyed by the bodies specified in that Order.

    Clause 51 clarifies paragraph 18(1) of Schedule 11 to the 1999 Act which enables TfL to acquire land for the purposes of discharging any of its functions and expressly includes the rehousing of the occupiers of dwellings acquired or to be acquired by TfL. Clause 51 makes it clear that TfL may acquire land for the purpose of relocating the occupiers of properties acquired or to be acquired by TfL such as commercial premises.

    Clause 52 enables TfL to grant interests in certain land. The Transport for London (Specified Activities) Order 2000 made under section 157(1) of the 1999 Act specifies activities which TfL may not carry out other than through a company which is limited by shares and registered under the Companies Act 1985 and which is either a subsidiary of TfL or a company which TfL has formed, or joined with others in forming, by virtue of section 156(1) of the 1999 Act. One of the activities, specified under paragraph 22 of the 2000 Order, is the granting of an interest in land which is used for the purposes of discharging any of TfL's functions under paragraph 16 of Schedule 11 to the 1999 Act.

    The operation of paragraph 22 is impracticable in cases where TfL must itself hold land for the purposes of the discharge of its functions, for example where it holds land as highway authority. In such a case the effect of paragraph 22 is to preclude interests in the land being granted altogether.

    Clause 52 enables TfL to grant an interest in such land notwithstanding paragraph 22 of the 2000 Order.

    Clause 53 clarifies the status of certain residential tenancies. Under the GLA Roads and Side Roads (Transfer of Property etc.) Order 2000 ("the Transfer of Property Order") TfL inherited certain properties from the Secretary of State which were transferred to TfL under that Order. Under article 5A of the Transfer of Property Order, where inherited properties were subject to a residential tenancy on the date of transfer (3 July 2000), the interest of the landlord under the tenancy continues to be treated as if it belonged to the Secretary of State and not TfL for the purposes of the Housing Act 1988. The effect of this provision is that the tenancies to which it applies do not acquire security of tenure merely because the properties in question have been transferred to TfL.

    Clause 53 provides clarification in relation to properties which before the operative date were let by the Secretary of State to intermediate landlords who took over the day to day management of the properties, letting them to residential occupiers and being responsible for repairs. In these situations, Clause 53 for the avoidance of doubt provides that where TfL becomes the owner of the reversion immediately expectant upon the residential tenancy TfL's interest as landlord under the residential tenancy shall be treated for the purposes of the Housing Act 1988 as if it belonged to the Secretary of State. The effect of this provision is that the tenancies to which it applied do not acquire security of tenure merely because the properties in question have been transferred to TfL.

    Clause 54 makes provision as respects the amendment or revocation of certain orders.

    Section 326(2) of the 1980 Act provides that an order under section 14B of that Act which has been confirmed by the Secretary of State may be revoked or varied by subsequent order made or confirmed in the like manner and subject to the like provisions. However, this provision does not apply to an order made under section 14B of the 1980 Act which did not require to be confirmed by the Secretary of State because it was made with the consent of the relevant highway authorities. Subsection (1) provides that an order made under section 14B may be revoked or varied by subsequent order made under that section. The provisions in section 14B(5) requiring the consent of the relevant London boroughs or, where that consent is not obtained, the confirmation of the Secretary of State will apply as regards the subsequent order.

    Under the GLA Roads (Continuity of Orders etc.) Order 2000 TfL inherited a number of Secretary of State proposals for major road schemes. The Order makes provision for the continuity of relevant line orders, relevant side roads orders and relevant compulsory purchase orders. However, the Order did not contain any provision enabling TfL to revoke those orders if the proposed road schemes for which they were made do not proceed.

    Subsection (2) provides that TfL may revoke relevant line orders, relevant side roads orders and relevant compulsory purchase orders. Such a revocation will not take effect unless it is made with the consent of each London local authority in whose area the relevant GLA road (or proposed relevant GLA road) or land to be compulsorily purchased is situated. If that consent is refused, the revocation may only take effect if it is confirmed by the Secretary of State.

EUROPEAN CONVENTION ON HUMAN RIGHTS

    In the view of Transport for London the provisions of the Transport for London Bill are compatible with the Convention rights.


 
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