Arrangement of Clauses (Contents)

London Local Authorities and Transport for London (No. 2) Bill

 

EXPLANATORY MEMORANDUM

PART 1

PRELIMINARY

Clause 1 deals with citation and commencement. It provides that the majority of the operative provisions of the Bill should come into operation two months after Royal Assent. Other clauses would come into force on a day or on days to be appointed by the London borough council in question or Transport for London ("TfL"). The detailed procedure which must be followed by the councils and TfL when appointing a day for the commencement of the provisions of the Bill are contained in Clause 3. Clause 2 sets out definitions of certain expressions used in the Bill. It defines "London authority" as London borough council or TfL, and that expression will be used in this Explanatory Memorandum.

PART 2

ITEMS DEPOSITED ON THE HIGHWAY

Part 2 deals with items deposited on the highway, giving highway authorities in London new powers to remove and dispose of such items in certain cases.

Clause 4 provides that Part 2 shall apply in relation to a highway in London as from a day appointed under Clause 3 and Clauses 5 and 6 deal with interpretation of common terms used in the Part. Clause 5 provides a definition of authorised officer.

Clause 6 defines "specified items" which are the type of items that are subject to the removal and disposal powers in Part 2. Any item deposited on the highway is a "specified item" unless it falls within one of a number of exceptions, set out in paragraphs (a) to (d) of Clause 6. These include items that are deposited on the highway in pursuance of any statutory right, including in pursuance of any licence, consent or permission (so, for example, will include items that have the benefit of express or deemed planning permission or advertisement regulations consent) and items deposited on the highway by statutory undertakers.

Clause 7 enables an authorised officer of the highway authority to require the person who he believes to have deposited a specified item on the highway to remove it forthwith. He may only make such a requirement if he considers that the item should be removed for the good or safe management of the highway or for the purposes of performing any of the functions of the highway authority. If the person in question fails to remove the item, or the officer cannot, after reasonable inquiry, identify who deposited it, then the officer may remove it himself.

Clause 8 requires the service of a notice by the authorised officer or the highway authority when an item is removed under Clause 7. If the person who was required to remove the item failed to do so, then the notice must be served on the person who it is believed deposited the item on the highway. If the authorised officer was unable to identify that person, then the notice must be affixed to a conspicuous place in the vicinity of the place from where the item was removed.

The notice under Clause 8 must explain that unless it is completed and returned in accordance with subsections (4) and (5) of the clause, the highway authority may dispose of the item in accordance with Clause 9 and recover their costs. The notice is completed by writing the name and full address of the recipient (or if different the person who deposited the item) together with confirmation that that person requires the highway authority to seek a disposal order in relation to the item under Clause 11. It is returned by sending it to the return address that must be printed on the notice by the highway authority within the time limit stated on the notice (which must not be less than 14 days after the notice was served or affixed). If the notice is completed and returned correctly then the highway authority must make a complaint to a magistrates' court for a disposal order under Clause 11 or return the item to the person whose name appears on the returned notice.

Clause 9 entitles the highway authority to dispose of any item removed under Clause 7 if a notice was served or affixed under Clause 8 but the notice was not completed and returned in accordance with that clause. It also entitles the highway authority to recover their costs of disposing of the item.

Clause 10 makes provision about compensation in cases where the removal of the item under Clause 7 was unlawful. A claim for compensation can be made to the county court if an item is removed from the highway and the highway authority failed to issue or affix a notice under Clause 8 or if the notice did not contain all the necessary information required by that clause.

Clause 11 makes provision about disposal orders in relation to items removed under Clause 7. A highway authority must make a complaint to a magistrates' court for a disposal order if required to do so by a notice returned under Clause 8. If such a complaint is made, the magistrates' court can order that the highway authority may dispose of the item and keep any proceeds, the balance of which may be applied to the maintenance of highways. The court must not make a disposal order if a person claiming to be the owner or otherwise interested in the item applies to be heard by the court unless an opportunity has been given to him to show why the order should not be made. If a person does take that opportunity but the court makes the disposal order, the court may order that the person pay the balance of any expenses incurred by the highway authority in removing and storing the item.

Clause 12 makes provision about offences under Part 2. It is an offence (punishable on summary conviction by a level 5 fine) to furnish false information when completing a notice under Clause 8 or (punishable on summary conviction by a level 3 fine) to remove, damage or interfere with a notice that has been affixed to a place under that clause.

Clause 13 makes detailed provision about the method of service of notices under Clause 8.

Clause 14 has the effect of repealing provisions in the London Local Authorities and Transport for London Act 2003 that enable the London Authorities to deal with items persistently and unlawfully placed on the highway in the course of a business.

PART 3

HIGHWAYS: MISCELLANEOUS

Clause 15 deals with the attachment of street lamps and traffic signs to buildings. Section 45 of the Public Health Act 1961 enables street lighting authorities (who include London borough councils, but not TfL) to attach street lamps and associated equipment to buildings. Under subsections (2) to (4) and (8) of section 45, provisions are made about the requirement to obtain the consent of the owner of the building in question.

Similar provision is made in relation to traffic signs under section 74 of the Road Traffic Regulation Act 1984, and in that case the power to affix is also enjoyed by TfL. Under both provisions, the owner of the building is entitled, under certain circumstances, to claim compensation from the authority in question if the powers are exercised.

Different provisions apply in the City of London under section 53 of the City of London (Various Powers) Act 1900 and section 75 of the Road Traffic Regulation Act 1984. The consent of the owner of the building is not required in either case (except in the case of railway undertakers).

The main effect of Clause 15 is to bring London authorities' powers under sections 45 and 74 more into line with those enjoyed by the City Corporation. This is done by disapplying the consent provisions in sections 45 and 74 as they apply in London, except in the City. Unlike in the legislation applying to the City, Clause 15 would require the London authority to give 56 days written notice on the owner of the building before exercising their powers under sections 45 and 74, and the requirement to obtain consent is retained not just for railway undertakers but other statutory undertakers as well.

Clause 16 makes provision about the service of notices under Clause 15.

Clause 17 makes provision about damage to highways caused as a result of the carrying out of works on land adjacent to the highway.

Subsections (1) and (2) provide that where works are to be carried out on land that is adjacent to a highway, the highway authority may require payment, before the works are commenced, of a sum representing the costs which the highway authority reasonably consider will be incurred by them in rectifying any damage caused by the carrying out of the works or activities associated with the works.

Subsection (3) provides that payment of the sum may be secured by agreement, by the imposition of a planning condition, or as a condition of building regulations consent. Subsection (4) provides that any sum not required by the authority shall be returned by the authority and subsection (5) provides that if the sum is insufficient to cover any remedial highway works, the additional costs are recoverable by the authority as a civil debt.

Section 133 of the Highways Act 1980 provides for the recovery of expenses incurred by a highway authority incurred in remedying damage to a footway caused by or as a consequence of the carrying out of works on land adjoining it. Subsection (6) of Clause 17 would replace section 133 with provisions for London that would enable the highway authority to recover their expenses of remedying such damage to any part of the highway, not just the footway.

PART 4

BUILDERS' SKIPS

Part 4 makes provision about the depositing of builders' skips on the highway in London. The depositing of builders' skips is already controlled under sections 139 to 140A of the Highways Act 1980. Those sections provide that the permission of the highway authority is required before any builder's skip is placed on the highway. The highway authority can place conditions on the permission including conditions relating to the lighting and guarding of the skip. There are also provisions in the 1980 Act requiring the owner of a builder's skip to secure that the skip is properly lighted during the hours of darkness, and that any regulations made by the Secretary of State about the marking of the skip are properly complied with. Responsibility for ensuring compliance with the provisions of section 139 of the Highways Act lies with the "owner" of the builder's skip and that term is defined in section 139(11). It provides that the owner, in relation to a builder's skip which is the subject of a hiring agreement of not less than one month, or a hire purchase agreement, means the person in possession of the skip under the agreement.

Failure to comply with the provisions of section 139 (including failure to comply with conditions of a permission, and failing to obtain permission at all) is a criminal offence for which the owner is liable.

Clause 18 makes provision for the interpretation of terms in Part 4. Clause 18 enables a highway authority to require the "relevant person" to provide them with information about who the "owner" of the skip is, in order to determine who penalty charge notices should be served on in respect of decriminalised contraventions of the Highways Act 1980. The "relevant person" is defined as the person to whom permission was given under section 139 of the Highways Act, or the person from whom the skip was hired, or the bailor in a hire purchase agreement. It would be an offence to fail to comply with the authority's request for information within the specified compliance period, or to give false information.

Clause 20 makes provision for the decriminalisation of offences under section 139 of the Highways Act 1980 as it applies in London. Under Part 4 of the London Local Authorities Act 2007, a regime for the administration of decriminalised offences is set out in some detail.Clause 20 would have the effect of applying those detailed provisions to decriminalised offences under section 139. Clause 20 provides that the owner of the builder's skip (see above in relation to Clause 19) would be liable to pay any penalty charge arising from a contravention of a decriminalised offence. If the skip is hired out to another person, then the owner would be able to recover penalty charges from the hirer.

The provisions of the Act of 2007 will allow representations to be made against the imposition of penalty charge, and appeals to be made to an adjudicator. The grounds for making such representations and appeals are set out in subsection (6) of Clause 20.

Clause 21 alters the powers of the highway authority to place conditions on the giving of a permission for placing a skip on the highway. It will enable the authority to include a condition that the skip has lights or a guard or system of guarding that is an integral part of the skip.

Clause 22 provides highway authorities with powers to light and cover skips in cases where requirements as to lighting and covering have not been complied with. The clause enables the highway authority to recover any expenses reasonably incurred in lighting or covering the skip.

Clause 23 would enable a highway authority to fix an immobilisation device to a skip in cases where they have also served a penalty charge notice (see Clause 20). The clause also makes requirements of the authority to affix a notice to the skip providing information about how to secure its removal and there are offences for unlawfully removing the skip or the notice.

Clause 24 sets out the circumstances under which a skip will be released from an immobilisation device. It will be removed when the penalty charge and a release fee are paid.

Clause 25 makes additional provision about appeals against penalty charges in cases where a skip has been immobilised under Clause 23. It provides that where representations or an appeal have been made successfully, the highway authority must refund any charges made for the release of the skip as well as the penalty charge for the contravention.

PART 5

ROAD TRAFFIC

Part 5 contains various provisions relating to road traffic.

Clause 26 deals with the recovery of traffic management and street cleansing costs incurred by the traffic authority or borough council as a result of the holding of certain events and the carrying out of filming on the street. Subsection (1) defines the types of event to which the clause applies as any sporting event or entertainment that is put on for commercial gain in Greater London (including an event that is one of a number of similar events put on at the same location at different times) and also the making of a film. Subsection (3) lists certain types of event that are exempt from the effect of the clause, including performances of plays at theatres and the showing of films at cinemas (unless a special showing, which is defined in subsection (4)).

Under Clause 26, a traffic authority may reclaim expenditure incurred in implementing traffic management measures and a borough council can recover expenditure incurred in complying with their duty to keep land and highways clear of litter. Only expenditure that is reasonably incurred as a result of the particular event in question may be recovered and it is recovered from the occupier of the premises at which the event takes place (or the owner if there is no occupier).

Clause 27 enables a person on whom a demand for costs recoverable under Clause 26 to appeal to the magistrates' court on a number of grounds, including that the demand should have been made on another person, that no expenditure was recoverable under Clause 26 or that the demand is unfair or unduly onerous.

Clauses 28 to 30 deal with advanced stopping areas for cyclists and the cycle lanes that feed into them. These areas are marked on the road at many traffic lights in London. Their purpose is to provide a safe area in which cyclists can wait when traffic lights are red. It is an offence for a motorist to cross into one when the traffic light is red. The offence is technically a failure to stop the vehicle at the stop line at the traffic lights.

Clause 28 deals with two general issues relating to advanced stopping areas for cyclists. The first is that technically it is an offence for a cyclist to enter the stopping area if there is no cycle lane marked on the highway that feeds into the stopping area. The clause would have the effect of clarifying that where there is an advanced stopping area but no feeder lane, then no offence is committed by cyclists who enter the stopping area at a red light signal.

The second issue dealt with by Clause 28 is related. It provides that in cases where there is a feeder lane, a cyclist would not commit an offence if he had to enter the stopping area by crossing the first stop line, if the feeder lane is obstructed.

Clause 28 also sets out some definitions of terms used in Clauses 28 to 30.

Clause 29 and Clause 30 make provision for the partial decriminalisation of offences relating to advanced stopping areas for cyclists at traffic lights. It is a criminal offence to disobey a red light signal by advancing over the relevant stop line at the traffic lights. In London there are a great deal of cases where there are two stop lines, the first of which is to be obeyed by all vehicles (including cyclists) and the second of which is to be obeyed by cyclists who have entered the area between the two stop lines by using a cycle lane.

The London Local Authorities and Transport for London Act 2003 (by virtue of Part 2) decriminalised fully a number of moving traffic offences and the use of those provisions has become widespread in London. Clause 29 would add to the list of decriminalised offences under the 2003 Act, the offence of failing to obey a stop line at a traffic light in cases where there is an advanced stopping area for cyclists. The partial decriminalisation would only apply in relation to motor vehicles, and it would remain an offence to disobey the relevant stop lines (subject to what is mentioned below in relation to certain cases).

Unlike all except for one of the offences which were decriminalised under the 2003 Act, failure to stop at a red traffic light is an endorseable offence and therefore the Bill provides that it should remain an offence, as well as becoming a contravention in respect of which a penalty charge notice can be served under the Act of 2003. Provision is included in Clause 29 to ensure that if criminal proceedings are taken out in respect of an offence, then the owner of the motor vehicle in question should not also face the prospect of paying a penalty charge in respect of the same offence.

Clause 30 deals with the same subject matter as Clause 29 but in the context of the Traffic Management Act 2004. Schedule 7 to that Act sets out a national regime for the decriminalisation of certain moving traffic offences and will, once implemented, have the affect of repealing Part 2 of the London Local Authorities and Transport for London Act 2003. Under Schedule 7, the Secretary of State is able, by making regulations, to add further offences to be decriminalised to the list which is already contained in that schedule. However, he is prohibited from making such regulations in respect of endorseable offences. Given that failure to stop at a red traffic light is an endorseable offence, and that the situation can only be changed by primary legislation, in order to enable the partial decriminalisation of the offence in relation to advanced stopping areas, it is necessary for Clause 30 to add the offence to the list of offences in respect of which the Secretary of State can partially decriminalise. That is what Clause 30 does.

Clause 31 deals with cases where the local traffic authority has made a road traffic regulation order under the Road Traffic Regulation Act 1984 so as to prevent the passage of vehicles or any class of vehicles into out of or along a highway, and has also placed a gate or other barrier on the highway to ensure that the order is complied with. Sometimes the barriers are authorised to be opened, for example, by the emergency services. Whilst it is an offence to drive along the road in breach of the road traffic regulation order, it is not an offence to interfere with the barrier unless criminal damage is caused. Clause 31 makes it an offence to open, close or otherwise interfere with a barrier without lawful excuse.

Clause 32 makes provision about fixed penalties which may be payable by a cyclist who cycles on the footway. It is an offence under section 72 of the Highway Act 1835 to ride a bicycle on the footway. Under Part 3 of the Road Traffic Offenders Act 1988, the offence of riding a cycle on a footway is a fixed penalty offence, and that in turn entitles the offender to discharge any criminal liability by the payment of a fixed penalty. Fixed penalties can be issued by a police constable, a police community support officer and, where a community safety accreditation scheme is in place under section 41 of the Police Reform Act 2002, fixed penalties for cycling on the footway could also be issued by employees of the person with whom the Chief Officer of Police has made arrangements for the implementation of the scheme. Such a person could include a London authority.

Where a community safety accreditation scheme is in place with the participation of a London authority, and the scheme enables employees of the authority to serve fixed penalty notices in relation to offences of cycling on the footway, Clause 32 will operate so as to enable the London authority to set the levels of fixed penalty in its area. It will specifically enable the authority to set different levels of fixed penalty for different cases or classes of case and for different areas. There is provision in the clause relating to publicity for the setting of fixed penalties and the provisions of Clause 33 will apply in relation to the coming into force of new levels of fixed penalties.

Clause 33 provides the Secretary of State with some control over the levels of fixed penalties that may be set under Clause 32. The London authority must notify the Secretary of State of the levels of any fixed penalties set under Clause 32 and those levels shall not come into force until one month after the notification or such shorter period as may be allowed by the Secretary of State. If before the end of that period the Secretary of State notifies the London authority that he objects to the levels of fixed penalties set because he thinks they are too high, then the levels shall not come into force until his objection has been withdrawn. In default, the Secretary of State can make regulations himself setting the levels of fixed penalties.

Clause 34 deals with pedicabs. Pedicabs are defined in subsection (8) as cycles constructed or adapted to seat one or more passengers and for the purpose of being made available with a driver in the course of a business for the purpose of carrying passengers. Pedicabs are now frequently seen in the streets of central London and have risen in popularity since the current London Local Authorities and Transport for London Bill was deposited in November 2004. That Bill originally contained provisions relating to the regulation of pedicabs. Amongst other things, it would have required the registration of pedicabs with TfL and it also contained other provisions enabling the effective enforcement of road traffic regulation against pedicab owners. Clause 34 does not contain the registration requirements in the previous Bill, but does contain the enforcement provisions. The reason for this is that the question of whether a pedicab should be classed as a Hackney carriage is the subject of ongoing proceedings in the Administrative Court. TfL, who have brought the proceedings, have sought a declaration that pedicabs are indeed to be treated as Hackney carriages. If the court finds favour with TfL's argument, then pedicabs will have to be licensed, and the difficulties which are faced by the London authorities in identifying who the owner of a pedicab is for the purposes of road traffic enforcement would be alleviated and there would be no requirement for registration.

There would remain a requirement to extend some existing primary road traffic legislation so that it covers the activities of pedicab drivers.

The first thing that Clause 34 does is to set out a presumption, for the purposes of a number of pieces of road traffic legislation, that the owner of a pedicab at any time, if the pedicab is licensed (for example under a Hackney carriage regime), is the person in whose name the pedicab was licensed at the time. This would enable London authorities to serve penalty charge notices on the licensee where there have been contraventions of road traffic legislation, for example relating to parking, the use of bus lanes and other moving traffic contraventions.

The second thing that Clause 34 does is to enable the authority responsible for licensing pedicabs to share with London authorities details of the licensee of pedicabs so as to enable enforcement action to be taken by those London authorities.

The third thing that Clause 34 does is to extend the application of section 15 of the Greater London Council (General Powers) Act 1974 to cover pedicabs. Section 15 makes provision for a prohibition of the parking of motor vehicles on the footway throughout Greater London unless specifically authorised.

Fourthly, the clause also extends the moving traffic contravention provisions of the London Local Authorities and Transport for London Act 2003 so as to cover pedicabs. Those provisions only cover motor vehicles.

PART 6

CHARGING POINTS FOR ELECTRIC VEHICLES

Part 6 enables London authorities to provide and operate charging apparatus for electrically powered motor vehicles on highways.

Clause 35 provides the principal power for London authorities to provide charging apparatus on highways for which they are responsible as highway authority. Under the clause the London authority may also grant other persons permission to provide or operate charging apparatus. The clause applies section 115D of the Highways Act 1980 which provides restrictions on the exercise of similar powers under that Act. It ensures that in exercising the powers, the London authorities would not be able to exercise them so as to prevent traffic, other than vehicular traffic, entering the highway at any place where it could enter before, or passing along the highway, having normal access to premises adjoining the highway; or to prevent any use of vehicles which is not prohibited by a traffic order; or to prevent statutory undertakers and telecommunications code system operators having access to apparatus. Detailed provision is made in relation to cases where the London authority has given permission for someone else to provide charging points, namely that the permission can be subject to such conditions as the London authority think fit and requiring the payment of reasonable charges. There are also provisions about liability in respect of injury, damage or loss arising from the presence of charging apparatus on the highway.

Clause 36 sets out a procedure for giving notice before a London authority can exercise its powers under Clause 35 to provide charging apparatus or grant permission to others to do so. A notice must be posted near to the place where the apparatus is intended to be installed and owners and occupiers of the premises appearing to be affected must also be served.

Clause 37 places London authorities under a requirement to consult other highway authorities who are the highway authority for the highway in question, and the local planning authority before exercising any powers under Clause 35. There are also special provisions relating to highways maintained by railway undertakers.

Clause 38 makes provision for cases where a person to whom permission is granted to install charging apparatus fails to comply with the conditions of the permission. The London authority can serve a notice on that person requiring him to remedy the breach, and if he does not then the London authority can remedy it themselves and recover their expenses in doing so.

Clause 39 makes provision about the unlawful use of charging points provided under Part 6. It provides that charging points may only be used for charging vehicles unless the London authority specifies otherwise (in the case of charging points provided by them) or if a permission given to another person so specifies. It then provides that the London authority or person to whom the permission was given may provide an indication on the charging point as to whether it is permissible, in accordance with such a specification, to use the charging point for purposes other than charging a vehicle. A person would commit an offence, liable to a level 3 fine, if he used the charging point for purposes other than charging a vehicle, but no offence would be committed if he used it for a specified purpose and there was an indication of the specification on the charging point.

EUROPEAN CONVENTION ON HUMAN RIGHTS

In the view of the Westminster City Council and Transport for London the provisions of the London Local Authorities and Transport for London Bill are compatible with the Convention Rights.


 
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