Special Committee on the Roads Bill, 1991 debate -
Wednesday, 29 Jul 1992

SECTION 51.

Mr. Smith

I move amendment No. 139:

In page 45, lines 12 to 14, to delete subsection (3).

On the advice of the Attorney General's office I propose this amendment. The subsection had provided that works along motorways, busways or protective roads to which a consent was given under this section would be exempt from development for the purposes of the Local Government (Planning and Development) Act, 1963 and, therefore would not require planning permission.

It was originally included in the Bill as a result of a High Court judgment on 18 July 1989 — in the case of Kevin Nolan and Others versus the Minister for the Environment and the ESB, which indicated that planning permission was required for works which were subject to similar consent procedures under section 8 (2) of the Local Government (Planning and Development) Act, 1974, unless the works in question were exempt from development under planning Acts. That decision provided a classic “catch 22” situation since the 1974 Roads and Motorways Act expressly forbade the granting of planning permission for development along a motorway. The issue was resolved, on appeal to the Supreme Court, following publication of the Bill. The Supreme Court ruled on 10 July 1991 that planning permission could not be granted in respect of any land to which a motorway scheme related. Consequently, there could be no exemption from planning permission. In other words, it would be illogical to speak of a development being exempt from something to which it could not be subject in the first instance. The effect of that decision was to remove the need for subsection 3.

Amendment agreed to.

Mr. Yates

I move amendment No. 140:

In page 45, between lines 14 and 15, to insert the following subsection.

"(4) The responsibilities, including the responsibilities to maintain roads and to take out adequate policies of insurance in relation thereto, which would normally attach to the relevant local authority, shall, for the duration of any work under this section, attach to the contractor (if any) involved.".

This amendment proposes that the cost of insurance should fall on the contractor rather than on local authorities. This is one of the amendments recommended to me by the Institute of Engineers. It is a small point but it could be quite a costly one. I ask the Minister to accept this amendment.

Mr. Smith

This section relates exclusively to works on motorways, busways and protects roads. It is the practice and intention that public utilities do not interfere with these high capacity roads at all if such can be avoided. Any services provided by them — pipelines, wires, etc. — will usually be laid down away from the roads in question, at the side of these roads, where there can be access provided without interfering with traffic. The provisions of this section relate only to cases where it is absolutely necessary to interfere with the motorway, protected road or busway to carry out works on pipes, cables and so on.

On the specific point of responsibility and liability involved during the course of roadworks it has always been the case that if damage or injury is caused, through negligence, during such works, the body carrying out the relevant works are liable — whether it be Telecom Éireann, Bord Gáis, the ESB, or whoever, who are all responsible for the work carried out by them on public roads. The reinstatement position can vary from local authority to local authority. Some road authorities themselves may carry out the reinstatement on behalf of the public utility on payment of a fee. Alternatively, the statutory undertaking may carry out the work themselves. Arrangements are made by the transfer of responsibility to the local authority once they are satisfied that reinstatement has been satisfactorily carried out.

Section 101 D of the Road Traffic Act, 1961 — as inserted in the Dublin Transport Authority Dissolution Act, 1987 — enables prescribed local authorities to issue directions to statutory undertakers and others for the purposes of co-ordinating road openings and minimising traffic disruption. In September 1988 the Minister made regulations prescribing Dublin Corporation, Dublin County Council and Dún Laoghaire Corporation as authorities who could exercise these directive powers. My Department wrote to local authorities recently asking if any more of them wish to avail of these powers.

Mr. Yates

What I had in mind here was the situation when there are major roadworks going on, and the little orange and red markers are erected. I do know of one case where roadworks were going on and a young cyclist was killed. In such circumstances whose insurance would cover the accident? Would it be that of the local authority or of the local contractor? Usually it is the contractor who organises the road manoeuvres.

Mr. Smith

My understanding is that if a contractor is awarded a contract and is in the process of carrying out the work, until such time as he hands over that work completed to the local authority, the contractor stands liable.

Amendment, by leave, withdrawn.

Section 51, as amended, agreed to.