Section 26 Requirements as to undertakers’ works which are likely to affect other undertakers’ apparatus.C4C1E1C2C3
England and Wales
The following provisions of this section shall have effect as to obligations of undertakers executing works to which this section applies (in this section referred to as “operating undertakers”) in relation to apparatus to which this section applies of undertakers other than the operating undertakers (in this section referred to as “owning undertakers”).
The works to which this section applies are any undertakers’ works (other than works for purposes of a railway undertaking) executed in a street or in controlled land in exercise of a statutory power or of such a power together with an authorisation given under the First Schedule ot this Act, other than works which have been substantially begun before the expiration of six months from the passing of this Act; and the apparatus to which this section applies is any apparatus of undertakers (other than apparatus held or used for the purposes of a railway undertaking) in a street or in controlled land, being apparatus maintainable under a statutory power or under such a power together with an authorisation given under the First Schedule to this Act.
Operating undertakers shall not begin any works to which this section applies which are likely to affect apparatus to which this section applies of owning undertakers (other than works relating only to a service pipe or service line or F1overhead telecommunication apparatus, in this section referred to as “excepted works”) until they have given to the owning undertakers notice of their intention to execute undertakers’ works, indicating the nature of the works and the place where they intend to execute them, and three days have expired from the date on which the notice was given:
Provided that operating undertakers may begin any such works as aforesaid being emergency works without giving such notice as aforesaid, but as soon as is reasonably practicable after doing so they shall give notice to the owning undertakers stating the reason for their having done so.
Operating undertakers shall, during the execution of works to which this section applies which are likely to affect apparatus to which this section applies of owning undertakers (other than excepted works), give to the owning undertakers reasonable facilities for supervising the execution of the works.
Operating undertakers shall comply with the following requirements as to works to which this section applies, that is to say—
in the case of works other than excepted works, they shall comply with any requirement as to the nature of the works, or as to things to be done or avoided in the execution thereof, which is made by owning undertakers and compliance with which is reasonably necessary for the protection of apparatus to which this section applies of the owning undertakers or for securing access thereto and is reasonably practicable having regard to the time when the requirement is made;
without prejudice to the generality of the preceding paragraph, they shall where the works include tunnelling or boring under apparatus to which this section applies of owning undertakers, secure that there is proper temporary support for the apparatus during the execution of the works and that a proper permanent foundation is provided therefor;
without prejudice to the generality of paragraph (a) of this subsection, they shall, where the works include the laying of an electric line crossing or near apparatus to which this section applies of owning undertakers, secure that it is effectively insulated and is so laid as not to be capable of touching such apparatus, and shall secure that such apparatus is not used as a conductor for electric current transmitted by the line laid.
In the case of emergency works operating undertakers shall be treated as having complied with the requirements of the two last preceding subsections if they have taken all such steps towards satisfying those requirements as it was reasonably practicable for them to take consistently with meeting the circumstances for which those works were required.
Operating undertakers shall pay to owning undertakers compensation equal to the expense reasonably incurred by the owning undertakers of making good damage to apparatus of theirs to which this section applies which is caused by the execution lawfully of works to which this section applies of the operating undertakers, or by failure of the operating undertakers to comply with any requirement of subsection (4) of this section:
Provided that operating undertakers shall not be liable by virtue of this subsection in respect of any damage if it would not have been sustained but for misconduct or negligence on the part of the owning undertakers or their contractors or any person in the employ of the owning undertakers or their contractors.
Obligations and liabilities imposed on operating undertakers by the preceding provisions of this section shall be in addition to, and not in substitution for, obligations and liabilities to which they are subject apart from those provisions, but subject as regards the last preceding subsection to the provisions of section thirty-two of this Act.
Without prejudice to any liability under subsection (6) of this section, undertakers who fail to comply with any requirement of subsection (2), (3) or (4) of this section shall be liable in respect of each such failure on summary conviction to a fine not exceeding F2level 3 on the standard scale, unless they prove that the failure was attributable to their not knowing of the existence, or not knowing of the position, of the apparatus of the owning undertakers in question, and that their ignorance thereof was not due to any negligence on their part or to any failure to make some inquiry which they ought reasonably to have made.
Annotations
Textual amendments
- F1
Words substituted by Telecommunications Act 1984 (c. 12, SIF 96), s. 109, Sch. 4 para. 29(2), Sch. 5 para. 45
- F2
Words substituted (E.W.) (S.) by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) by Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G
Modifications
- C1
S. 26: applied by Heathrow Express Railway Act 1991 (c. vii), s. 37(4) (with s. 36(1))
- C2
S. 26 applied (13.2.1992) by British Railways Act 1992 (c. i), s. 32(4).
- C3
S. 26 applied (18.6.1992) by British Railways (No. 2) Act 1992 (c. xi), s. 39(4).
- C4
S. 26 extended by Local Government, Planning and Land Act 1980 (c. 65, SIF 123:2), s. 167(7) and Highways Act 1980 (c. 66, SIF 59), s. 290(8)
Extent
- E1
This version of this provision extends to England and Wales only; a separate version has been created for Scotland only.
Notes on the whole Act
Textual amendments
- F1
Act repealed (1.1.1993) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 168(2), Sch. 9 (with savings in ss. 103(5), 161(2), 162(5)); (E.W.) S.I. 1992/2984, art. 2(2), Sch.2; (S.) S.I. 1992/2990, art. 2(2), Sch.2.
- F2
Act repealed (1.1.1993) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 168(2), Sch.9 (with savings in ss. 103(5), 161(2), 162(5)); (E.W.) S.I. 1992/2984, art. 2(2), Sch.2; (S.) S.I. 1992/2990, art. 2(2), Sch.2.