This report analyses and summarises responses that were received to the 'Strategic Consultation on Works on Scottish Roads' which was launched in April 2013. This was the first major consultation on road works since 2003, and the first since the Scottish Road Works Commissioner was appointed in 2007.
The consultation sought views on a range of proposals that had been considered by the Scottish Road Works Policy Development Group, though it did not commit Scottish Ministers to abide by its findings.
The consultation included 33 separate questions across six different policy areas, these being:
- The road network as an asset;
- Time taken to complete works;
- Compliance and enforcement;
- Review of other current and proposed legislation;
- Co-ordination of works; and
- Issues not covered elsewhere in the consultation.
The consultation was distributed to 88 different organisations, including the 35 utility companies and 33 roads authorities that operate in Scotland, as well as being made available on the Transport Scotland website.
Analysis of Responses
A total of 50 responses were received. This included responses from 30 roads authorities and related bodies (60%), 13 utility companies and related organisations (26%), six 'other' organisations which had no affiliation with either of the two main groupings (12%), and one individual (2%).
All responses were read and logged into a database. Comments given at each question were examined and, where questions elicited a positive or negative response, they were categorised as such. For most of the questions, respondents were also asked to state the reasons for their views, or to explain their answers. The main reasons presented by respondents both for and against the various specific proposals were reviewed, alongside specific examples or explanations, alternative suggestions, caveats to support and other related comments. These are summarised here.
The Road Network as an Asset
Maintaining the condition of the roads and protecting the roads as an asset is vital for Scotland's economic prosperity. Thirty three respondents (29 of whom were roads authorities) supported the introduction of contribution costs from utility companies to the costs of making good the long term damage that is caused to roads by works. The level of contribution most commonly suggested amongst those supporting a contribution was 17%. Despite this, several respondents suggested that implementation of a contribution scheme could prove challenging and a scheme which would be introduced gradually and included incentives for utility companies was seen as preferable. Among those opposing any contribution, it was felt the proposal was based on poor evidence. The majority of those favouring the introduction of contribution costs were roads authorities. All utilities and one roads authority opposed the introduction of contribution costs.
While current legislation allows for a one year period after a road has been resurfaced before it can be excavated again by a utility company, there was widespread support for changing the period of restriction after re-surfacing to three years, and for adopting this into legislation. Overall, there was agreement that the voluntary three year restriction period had worked well, but that adoption into legislation would remove inconsistency between the legislation and the Code of Practice.
The majority of roads authority respondents also expressed that increased inspections would improve the quality of reinstatements. In contrast, those representing utility companies perceived any increase in inspections as unnecessary, and around half supported a reduction in inspections for high performing utility companies. Amongst those supporting an increase in the level of inspection, Category C inspections were considered most in need of an increase, followed by Category A inspections. There was also broad support across the groups for a change in inspection fees where a utility company is performing poorly, including a performance element. Over half of utility company respondents, however, stated that additional regulation was not necessary.
There was also disagreement between utility companies and others with regard to guarantee periods. Among roads authorities, there was a perception that increased guarantee periods would drive up standards and lead to better quality and more durable reinstatements. The main objection to the proposals was a perceived lack of evidence to demonstrate that reinstatements that have not failed after 2/3 years would go on to fail in the longer term.
Time taken to complete works
In the interests of ensuring the timely completion of works, a range of possible initiatives for consideration were set out in the consultation, namely, occupation charges, permit schemes and lane rental schemes.
There was very limited support for the introduction of occupation charges, since respondents felt that most delays were genuine and it would be difficult to judge otherwise if delays were not legitimate. The introduction of charging was also seen as being potentially administratively burdensome for both roads authorities and utility companies alike.
Similarly, the introduction of permit schemes was seen as unnecessary since respondents considered that the current arrangements for coordinating works using the Scottish Road Works Register, along with the existing provisions available to roads authorities, work well. The main arguments offered against the introduction of permit schemes were likely high administration costs, bureaucracy and the potential for costs to be passed on to consumers.
Support for lane rental schemes was also very limited. The majority of respondents viewed lane rental schemes as unnecessary and lacking in evidence to support them. Further research and evidence was seen as being necessary to demonstrate their relative costs/benefits. Overall, therefore, while respondents seemed committed to ensuring that works are completed within reasonable periods, the proposals set out in the consultation gained, at best, limited support.
Compliance and Enforcement
Both roads authorities and utility companies have duties in relation to the way in which works in roads are managed and undertaken. Failure to comply with such duties among utility companies can result in roads authority administered fines. The Commissioner can also impose penalties on both roads authorities and utility companies for neglect of duty in relation to road works.
When asked whether there should be an extension of existing summary offences dischargeable by fixed penalty notice (FPN) under the New Roads and Street Works Act (NRSWA), there was a clear split in views expressed by roads authorities and utility companies. The majority of roads authority respondents felt that the current system was not working and an extension of existing summary offences dischargeable by a FPN would lead to better quality reinstatements, fewer unauthorised road works and improved performance in signing, lighting and guarding. In contrast, utility companies and their affiliates considered the proposed changes were unnecessary, stating that there were already suitable measures in place to address non-compliance. There was moderate support for the creation of new summary offences dischargeable by FPNs and, again, those in support felt that roads authorities were currently unable to manage utility company non-compliance within existing legislation.
There was general support for an increase in FPN amounts which, at a minimum, would be in line with inflation. Views on the Commissioner Penalty Limits required to influence the behaviour of utility companies and roads authorities to comply with their current duties were more varied. In broad terms, 21 respondents (42%) thought the level of penalty should be increased (and most agreed this should be in line with inflation), while 18 (36%) thought it should remain at the same level. All utility company respondents opposed an increase in the maximum level of penalty.
Finally on compliance and enforcement, there was considerable opposition across the board towards revising legislation to state that penalties could be imposed for failure to comply 'such practice as appears by the Scottish Road Works Commissioner to be desirable'. Many respondents stated that the definition needed to be clearer and not open to misinterpretation. Those who disagreed with all parts of the proposed revised definition stated that the existing definitions of 'co-operate' and 'co-ordinate', if used effectively, were already fit for purpose.
Review of Other Current and Proposed Legislation
The consultation provided a valuable opportunity to open up for discussion several issues in relation to the way in which road works are undertaken, which could be improved by revisions to legislation.
On the issue of safety at road works, the majority of respondents agreed that the Code of Practice for Safety at Street Works and Road Works should become mandatory for roads authorities. The main reasons for support were; consistency, parity of treatment and the removal of the anomaly of different prosecution levels, improved safety at road works for both operatives and road users/public, and improved quality of works and reduced disruption. Those who disagreed with this proposal reported that roads authorities are obliged to comply with Chapter 8 of the Traffic Signs Manual. It was also their opinion that the Code of Practice was more suited to works of an isolated excavation nature, and thus may not be detailed enough to cover the full range of activities carried out by roads authorities.
The majority of respondents also agreed, in principle, that it should be made mandatory for all utility companies and roads authorities to hold digital records of their apparatus in roads and to provide such digital records for use on the Scottish Road Works Register (SRWR). That being said, most were aware of the significant scale of this exercise and the associated resource implications which were likely to result.
The vast majority of respondents also agreed with the proposal that Section 61 of the Roads (Scotland) Act 1984 be repealed and Section 109(2) of NRSWA revised to provide more clarity as to where responsibility for record keeping of apparatus should lie. This would reduce confusion and uncertainty, bring consistency and clarity (to roles and responsibilities and record keeping per se) and be a more efficient way of undertaking works, it was perceived.
Similarly, the majority of respondents agreed with proposals to create a new legal entity of 'major road manager' in the interests of assisting in the co-ordination of works. The only resistance to this proposal came from those who queried the robustness of evidence indicating the need for such a role. Others perceived that road managers would lack relevance in rural areas and some had concerns around data security/access to information which would ordinarily be restricted.
Co-ordination of works
Roads authorities have responsibility for co-ordinating all road works by utility companies as well as works for road purposes. The aim is to balance the statutory rights of roads authorities and utility companies, with the expectation that disruption from works shall be kept to a minimum.
Views on changing the three month advance notice period for major works to remove a potential barrier to good co-ordination of works were mixed. The majority of respondents thought that the three month period was necessary for good co-ordination, and provided the necessary flexibility required. That being said, there was also some support for a reduction in the noticing period, which was perceived as excessive in rural areas and can have negative consequences in terms of increasing the number of early starts. The majority of respondents from all groups, however, thought that the requirement to provide advance notice for works on non-traffic sensitive roads should be maintained.
To assist with better co-ordination of works, the majority of respondents agreed that the early start procedure to allow works to start without providing the statutory minimum notice period in some cases should be placed on a statutory footing. Where this was opposed, the main reasons was that the voluntary use of non-statutory advice was already seen as adequate, and as a good example of the way in which roads authorities and utility companies co-operate to co-ordinate road works. Overall, responses were not supportive of any change to existing requirements in relation to urgent works, however, the main reasons being that the change would not fix the problem of misuse of the urgent works classification and that urgent works often cannot be started immediately in any case.
On the issue of roads authority noticing obligations, just under half of respondents expressed outright support for the introduction of legislation to ensure that roads authorities are required to provide the same information as utilities companies on the SRWR. The main reasons for supporting the proposals were: ensuring that the fullest and most accurate information is available to the Commissioner; facilitating planning programming and co-ordination of works to the fullest; and achieving parity and equity between both roads authorities and utility companies, i.e. all abiding by the same rules. The main drawback was perceived to be that the time required to place notices for all works may outweigh the benefits of doing so.
There was considerable support for the introduction of regulations to allow roads authorities flexibility around placing notices for minor works involving no or minimal excavation on non-traffic sensitive roads. It was felt that this would formalise practice that is already widely used. Support for flexibility was backed up by feelings that such works are minimally disruptive, have little impact on the public, and would be administratively burdensome to manage otherwise. While people supported the introduction of flexibility, clear guidance is needed, it seems, on the circumstances in which it can be used.
There was unanimous support for regulations to be introduced to require roads authorities and utility companies to enter actual start notices on to the SRWR. The main reasons offered in support were improved co-ordination of works, provision of an audit trail and improved knowledge about who else was working in the vicinity (or was planning to). There was also support for penalising non-compliance with such regulations, if it was introduced.
Responses were mixed with regard to the current requirement for actual start notices to be lodged by noon the following day for all works in roads, including traffic sensitive roads. Respondents tended either to support the current requirements, or suggested that notices could/should be lodged sooner, where possible. The consensus was for the most up-to-date information to be available.
The majority of respondents also felt that the current requirement for works closed notices to be lodged by the end of the next working day was a reasonable period. Existing arrangements are perceived to work well and are realistic and achievable for all. The consensus was that works closed notices are less critical than starts, because they effectively reduce potential delays and problems rather than increasing them.
The question around potentially reducing the validity period between intended and actual start dates of works produced some relatively lengthy and detailed responses compared to other sections of the consultation. Most people were in favour of leaving the validity periods as they are at present, the main reason being that they afford flexibility in the case of unanticipated delays to start of works. The main reasons given in support of the reduction of the validity period to a maximum of two days were to assist in co-ordination of works with more accuracy in relation to actual start dates. Respondents generally also supported the idea that utilities and road works authorities should be treated the same with regards to validity periods.
Most of those supporting statutory powers to impose maximum durations for works on utility companies were roads authorities, although those against the proposals were split evenly between groups. Strong views were expressed by utility companies that only they possessed the requisite technical skills, knowledge and experience to be able to appropriately gauge durations required for works. Several respondents felt that New Roads and Street Works Act (NRSWA) Section 115 already adequately covered this issue. Therefore, it was proposed that greater penalties should exist for ignoring NRSWA Section 115 directions, rather than allowing roads authorities to dictate the duration of utilities' works.
The consultation sought views on whether roads authorities should be given statutory powers to impose embargoes on works for reasons other than traffic disruption and the issue again provided a clear split in responses between groups. Almost all of those who supported the proposal represented roads authorities and related bodies and none of the utility companies and related organisations who responded supported the introduction of such powers. Those who supported the introduction of statutory powers in this regard felt that it would formalise a voluntary system that was already working well. Most of those against the introduction of statutory powers in this regard also felt that the present voluntary system was working well and so did not need a statutory footing.
Also in the interests of improving co-ordination, the consultation included a revised definition of 'working day', as agreed by the Scottish road works community. More than half of respondents supported the definition of 'working day' given in the consultation document on the basis that it was clear, relevant and locally appropriate. The main reason for not agreeing with the definition was that the definition of working day in Section 157(2) of NRSWA was already satisfactory, with a definition of bank holiday exclusions. The large majority of those who agreed with the definition represented roads authorities (24 out of 29 who agreed) and the majority of those who did not agree represented utilities (eight out of the 11 who did not agree).
A large number of disparate comments were made in response to the final three consultation questions, with considerable feedback from both roads authorities and utility companies on issues not covered elsewhere in the consultation. Most of the closing comments made by respondents reflected the views already set out earlier in the consultation around the consequences of sharing costs for making good roads, and sharing responsibilities for ensuring that works are closed timeously and in good order. The need for parity between the two groups in terms of accountability was again stressed.
Several ideas for innovations were put forward and comments reflect a general commitment to learn from best practice wherever possible. It seems it was not possible within the scope of the current consultation for respondents to provide accurate cost implication feedback from the proposals, but there was consensus that careful planning would be required, including detailed cost analysis, before any of the consultation proposals were implemented.
The consultation produced an encouraging response from the Scottish road works community and others. Responses have provided a clear steer on those proposals that would and would not receive support from the community, and have shown the main areas where there is divergence in opinion between roads authorities and utility companies. Several suggestions for changes to existing guidelines and policy were put forward to improve the planning and co-ordination of works, and there seems a general commitment between all parties to achieving the safe, effective and efficient completion of works that minimise disruption and costs to road users and consumers. Regular and ongoing communication between roads authorities, utility companies and the Commissioner seems to be key to the future successful planning and delivery of works on Scottish roads.
Given the wide-ranging nature of the consultation, the Scottish Ministers will need to carefully consider this analysis of responses received in relation to next steps and policy options. These are likely to take the form of separate workstreams which may in themselves require further consultation particularly where legislation is required.