From the middle of the 19th Century public utilities (statutory undertakers) were given powers to break open highways and streets in order to lay their apparatus under the highway and to gain access to it for subsequent maintenance. Without clear statutory authority such interference with the public right of passage would amount to a public nuisance at common law.
The 1950 Street Works Code established under the Public Utilities and Street Works Act 1950 was used for over 40 years to reconcile the competing claims of highway authorities and statutory undertakers. That Act has been replaced by Part III of the New Roads and Street Works Act 1991 (NRSWA 1991) which attempts to achieve a level of simplicity and flexibility by setting out only the legislative framework and leaving detailed regulation in specific cases to regulations and code of practice. Part III of NRSWA 1991 begins by establishing a definition of the term 'street' which is to apply not only for the purpose of NRSWA 1991 but also for the Highways Act 1980.
A 'street' is defined as:
- the whole or any part of the following irrespective of whether it is a thoroughfare;
- any highway and any road, lane, footway, alley or passage;
- any square or court; and
- any land laid out as a way whether it is for the time being formed as a way or not.
NRSWA 1991 brought all works that may involve the breaking open of a street (other than road works carried out by or on behalf of the highway authority) under the same area of control. As a result persons or bodies who may be granted licences to break open the street by a street authority are required to follow the same procedures as undertakers acting under statutory powers.
NRSWA 1991 places a duty on each street authority (which is generally the highway authority) to co-ordinate street works of all kinds on the highway. Statutory undertakers were also placed under a duty to co-operate in this process. However, NRSWA 1991 failed to achieve the intended level of co-ordination having regard to the multiplicity of utilities which now have the right to open up the road. The Traffic Management Act 2004 sought to deal with the problem of failures in co-ordination by introducing a new permit system for the carrying out of work in streets.
Undertakers are placed under a clear duty under NRSWA 1991 to operate safety measures when carrying out their duties, to avoid delay and obstruction, to ensure proper supervision and to provide adequate facilities for inspection by street authorities.
They are also required to reinstate the street to a permanent standard and to a nationally accepted specification. Fees are chargeable for inspections by the street authority and the costs associated with temporary traffic regulation and the use of alternative routes are recoverable by the street authority.
Executive functions of the Secretary of State under NRSWA 1991 now vest in the Welsh Ministers in relation to Wales with the exception of the function contained in section 167(3).