Strategic Consultation on Works on Scottish Roads Analysis of Consultation Responses

2. THE ROAD NETWORK AS AN ASSET

2.1 This chapter presents responses regarding whether utility companies should contribute to the perceived long term damage that can be caused by road works. It covers questions around whether the period of restriction following resurfacing should be changed, what an appropriate level of inspection is by roads authorities and the fees to be charged for this, and whether the guarantee period for deeper evacuations should be increased.

Background

2.2 The value of the Scottish road network has been estimated at more than £38 billion and the importance of keeping it in an appropriate condition has long been recognised. Concerns have been raised at Ministerial level about the damage to roads which utility company work might cause. A literature review carried out on behalf of the Commissioner in 2011 by the consultants URS-Scott Wilson, suggested that a section of NRSWA (New Roads and Street Works Act 1991) could be used to require contributions from utility companies for the damage caused by road works.

2.3 Currently, legislation states that a utility company cannot excavate a road again for one year following resurfacing although it has been agreed through RAUC(S), on a voluntary basis, that this period be increased to 3 years.

2.4 Regulations allow for roads authorities to charge a fee for inspections on utility company road works. Such inspections can be carried out during the works, within 6 months of reinstatement, and within three months of the end of the guarantee period (two years for standard works and three years for deeper evacuations). It has been suggested by some that the percentage of inspections where the roads authority can recover its costs should be increased.

Findings

Contributions to costs of making good long term damage

Q.1. What contribution do you consider should be introduced? What are your reasons for coming to this view?

* All three of those not responding to this question were from group three.

Key themes

1. The level of contribution most commonly suggested amongst those supporting a contribution was 17%, with most citing the 'evidence' as the reason for this level.

2. The implementation of a scheme could prove challenging. A scheme which would be introduced gradually and included incentives would be preferable.

3. Those opposing any contribution felt the proposal was based on poor evidence, and warned of the economic impact of a contribution.

2.5 Of the 33 respondents supporting the proposal, 29 proposed a figure. The levels of contribution suggested varied, as can be seen in Table 2.1. All the group two respondents opposed a contribution, alongside one respondent in group four.

Table 2.1 Suggested levels of contributions

Level of contribution	Number
25% or greater	1
17%* or £76 per square metre of carriageway	13
10%** or £45 per square metre of carriageway	6
8.5% or £38 per square metre of carriageway	3
7.5% or less	1
Starting at 5% and rising annually to 10% by 1% per year (5 year plan)	4
5% or £22 per square metre of carriageway	1
Total	29

* One of the 17% refers to the Trunk Road Network only
** In one case, consideration for a 17% contribution for works on more heavily trafficked roads with a higher design specification.

2.6 The main reasons given for supporting a contribution to the costs of making good long term damage were:

• The evidence - various independent investigations demonstrate that even good reinstatements shorten the design life of a road. The current practice and specification used to excavate and reinstate roads lead to long term damage. It was therefore perceived as reasonable and fair for utility companies to contribute to making good long term damage to roads.
• It would incentivise companies to improve the quality of their works.
• It would be a revenue stream.
• It would encourage behaviour change and innovation to improve work practice.

2.7 The evidence was also the main reason given for supporting a 17% contribution to the costs of making good long term damage, consistent with the TRL report figure of a 17% reduction in the service life of roads.

2.8 Several issues, concerns and warnings were also raised by those supporting a contribution, including:

• A gradual approach would be required to reduce the risk of unintended side effects.
• Further research would be required to establish suitable contribution rates for long term damage caused by excavations in the footway and in the verge (mentioned by five respondents):
  "We are disappointed that the analysis of Contributions to Costs of Making Good Long Term Damage has only considered the impact on carriageways. Damage from works carried out on the footway creates major hazards for vulnerable pedestrians and the consequences of a trip can be severe, particularly for older people. We would strongly argue that such a scheme must be widened to encompass footways, where around 180,000 square metres of reinstatement is undertaken each year." (Living Streets Scotland)
• The implementation and supervision of such a scheme may prove challenging.
• There would need to be investigation into the impact on council resources, what financial systems would be required for audit purposes, a charge per surface area/type (frequency of revision), and what management processes would be required to deal with organisations that fail to pay the charge.
• The proposals make no provisions for encouraging good performance/practice.
• Problems with using a standard fee based on the areas of reinstatement obtained from the SRWR. There is currently no statutory requirement for utility companies to enter reinstatement information on completion of works, and so reinstatements are not always entered correctly and the process is open to abuse. There is no fixed penalty for failing to enter the information or any escalation through RAUC(S) for individual cases. Fines for not reporting reinstatement areas need to be greater than Fixed Penalty Notices otherwise there is no deterrent and utility companies would just endure the fines:
  
  "Until reinstatement details are a statutory requirement or there is some penalty for not entering accurate details on a site by site basis, an automated contribution couldn't work and would unfairly penalise those organisations who faithfully record accurate details." (Stirling Council)
• One respondent reported that while in agreement that utilities' excavations reduce the life of the roads in which they take place, the proportion of the network affected has not been established with sufficient accuracy and more research is required before it would be appropriate to suggest a figure.

2.9 Recommendations made by those supporting a contribution to the costs of making good long term damage were:

• Incentives - there was support amongst a number of roads authorities for a measure which would give a discount or remove the charge altogether for utility companies with a high performance rate. This would focus the incentive to get it right first time, produce quality reinstatements and reduce the need to revisit openings:
  
  "Statutory undertakers regularly exceeding a 90% reinstatement pass rate in the sample regime should pay less than a statutory undertaker regularly performing poorly. Poor performers should pay the maximum 17% per m². This incentive for good performance would ensure reinstatements causing problems are targeted." (West Lothian Council)
  
  "…the potential financial benefits could encourage undertakers to make use of modern innovative methods to reduce the areas affected and the time kept with the road openings to a minimum." (Stirling Council)
• The contribution should be made on a cost per square metre basis. This would be a fairer method for utilities to contribute as it is based on the amount of work carried out on the roads.
• One respondent stated that the contribution should include the lateral zone of influence around the reinstated area, which includes damage to the reinstatement surround. Given that utility reinstatements are generally trench or patch formation, the damage should be tied into the running lane affected.
• One respondent suggested that given a number of openings are minor/limited in scope, the contribution should be restricted to openings greater than 2m² (previously the threshold considered as defining minor works).

2.10 A lower contribution or a contribution on a rising scale was also suggested as this would enable the utility companies to adapt to a contribution scheme.

2.11 Group two respondents represented 13 of the 14 who opposed a contribution. Eleven of these stated explicitly that no contribution should be introduced. The main reasons given for opposing a contribution to the costs of making good long term damage were:

• Distrust of the evidence - nearly all respondents opposing a contribution had reservations about the evidence, questioning the validity of the URS Scott Wilson and TRL reports which were used as the basis for some of the proposals in the consultation. The URS Scott Wilson report was not considered to have presented any new evidence or conclusions. Many respondents also felt that some of the reports reviewed in the URS Scott Wilson Report and specifically the evidence on long-term damage were fundamentally flawed:
  
  "NJUG … does not feel that assumptions can be made on the impact of utility reinstatements on Scottish roads based on the existing evidence, and does not accept many of the findings laid out in the URS Scott Wilson report. In particular, the TRL PPR386 Report made recommendations on long-term damage based on a sample of only 38 sites across the UK, which NJUG robustly challenged at the time, and continues to challenge. NJUG seeks greater clarity and understanding of all the reasons for road degradation, and would welcome sight of the data used by the Scottish Government in devising its proposals." (NJUG)
• The Impact on Consumers - the introduction of a utility contribution to long term damage would have a 'direct and unavoidable' impact on consumer costs:
  
  "Enacting Section 137 of NRSWA would add to the costs of service for Vodafone customers by approximately 90-100% uplift in civils' costs. Our network is funded by Vodafone itself and therefore assessing the costs of improving its ability to serve and give the right service and connectivity will be more of a challenge in future years and may contradict with Scottish Government's aim of economic growth." (Vodafone)

2.12 NJUG also commented on Scottish Water and the impact on consumers. A considerable portion of works on Scottish roads are completed by Scottish Water and, therefore, any charge incurred by Scottish Water would ultimately be a cost incurred by the Scottish taxpayer, given that Scottish Water is a statutory corporation and accountable to the public through the Scottish Government, rather than a privatised utility.

2.13 Other issues included:

• Impact on utilities' capital investment programmes - the introduction of a long term damage contribution will negatively impact on measures to drive economic growth.
• The need to consider other reasons for the state of the roads - multiple reasons for the poor state of Scotland's roads and all factors impacting the degradation of roads should be considered. NJUG called on the Scottish Government to undertake a full investigation into all the reasons for road degradation, similar to the Highways Maintenance Efficiency Programme.
• The main issue regarding the condition of Scottish roads is the continued lack of investment in roads and particularly in maintenance of the existing road network.
• It would undermine the existing expected performance requirements contained in the RAUC(S) Specification for the Reinstatement of Openings in Roads (SROR).
• Long term damage contributions could put the quality of the reinstatement at risk:
  
  "…Undertakers would be paying per metre of trench rather than for quality reinstatement as there would less incentive to build in quality, so in essence the action to raise a charge may have the reverse result." (Vodafone)

2.14 Recommendations made by those opposing the proposal included:

• Any introduction of a levy for damage to roads from reinstatements should not be considered in isolation from the other costs associated with maintaining roads:
  
  "In particular we note that while road drainage is a road works authority responsibility in most built up areas, the majority of road drainage flows are conveyed and treated by Scottish Water - a service that Scottish Water does not charge road works authorities for. In 2008, the Scottish Government estimated that the costs of providing this service were £100m a year. Scottish Water's view is that any steps to take a more cost reflective approach for road openings should also encompass the costs of managing roads drainage." (Scottish Water)
• The best way to reduce the impact of utility and authority works on the long term performance of the road structure may be through innovation in methodology, techniques and materials:
  
  "The impact of reinstatements on road structure is influenced by many varied factors… The specification used to prescribe the methods of reinstatement required may no longer be fit for purpose given the increased traffic loading and volumes now being experienced in many urban environments… As part of a way forward the specification must be reviewed regularly to consider developments in materials and techniques which may address these changes. It may also be prudent to consider moving away from a 'method specification' and re-write it as a 'performance specification'. SGN has already started using this methodology by employing deflectometers to ensure reinstatement compaction is consistent with the surrounding structure." (SGN)
• Continue with voluntary initiatives that have been agreed through RAUC(S) with higher targets each year, which have delivered a real improvement in reinstatement quality, with Improvement Plans in place to deliver further improvements.
• If a contribution to long-term damage is introduced, then a targeted approach should be introduced, focusing on those areas that widely deviate from the national average and those utilities whose reinstatement record is not as good as the average.

Comparison of group responses

2.15 Responses to this question showed a clear split in support for a contribution, and a suggested level, by respondents in group one and opposition to any contribution from group two. However, in both groups one and two, the issue of unintended consequences, in terms of quality, was raised.

2.16 It is also worth mentioning that several of the responses stressed that they appreciated the effect this would have on utility companies, and others stated that any figure would have to be acceptable to both roads authorities and utility companies, whilst also recognising the damage to the network.

Road Restrictions

Q.2. Do you think the period of restriction following resurfacing should be changed? Please can you explain your answer?

* Of the five not responding to this question, four were from group three and one was from group one.

2.17 The vast majority of respondents (39), from both groups one and two stated that the period of restriction following resurfacing should be three years and that this should be adopted into legislation. However, other respondents answered that the period should be five years, with some stating this should be the case for deep excavations or for footway and carriageway.

Key themes

1. There was widespread support for changing the period of restriction after re-surfacing to three years and adopting this into legislation.

2. There was agreement that the voluntary three year restriction period had worked well. Adoption into legislation would remove the current inconsistency between the legislation and the Code of Practice.

3. Group two support was conditional on any new restriction period being subject to certain exemptions.

2.18 The main reasons given for supporting an increase in the period of restriction following resurfacing and adoption into legislation were:

• The three year restriction period is presently in operation on a voluntary basis and has worked well in practice.
• It may improve current negative public perceptions of roads being dug up and show that utility companies and councils communicate with each other.
• It may encourage and promote better forward planning of large scale works and lead to a more co-ordinated approach between organisations.
• It would help to protect new surfaces (and any disincentive to excavate a new surface is to be supported).
• Adoption into legislation would remove inconsistency between legislation and the Code of Practice.

2.19 However, many of those supporting an increase in the period of restriction following resurfacing said that their support was dependent on caveats, namely:

• Any new restriction period should be subject to certain exemptions - agreed by RAUC(S) - like new service connections, urgent and emergency works.
• A review should consider the exemptions as they could be open to abuse to negate a restriction period.
• Thought should be given to full or half width surface reinstatement so as to be in line with the Design Manual.

2.20 Scottish Water proposed two specific caveats, as follows:

"… would require that the current exemptions agreed in the Chapter 6 of the Code of Practice for the Co-ordination of Works for Roads, March 2013 should remain in place and that Scottish Water is not prevented from meeting its statutory duties in any way ... Should the three year restriction become a statutory requirement, the advance notice period required prior to substantial works for road purposes should be increased to six months and that early starts should not be applicable to these works. This will ensure that sufficient time is available to all utilities to investigate any apparatus and adequately assess its condition. Where work is identified at this stage, time is also required to plan, fund and complete any required works." (Scottish Water)

Comparison of group responses

2.21 There was general consensus across the groups that the period should be changed to three years and adopted into legislation.

Road Works Inspections

Q.3. What is an appropriate level of inspection for utility company road works where a fee can be charged by the roads authority? Please can you explain your answer?

* Of the five who did not respond to this question, four were from group three and one was from group one.

Key themes

1. 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.

2. The majority of group one respondents felt that increased inspections would improve the quality of reinstatements.

3. Group two respondents saw any increase in inspections as unnecessary, and around half supported a reduction in inspections, for high performing utility companies.

2.22 Amongst those supporting an increase in inspection levels, the proposed levels varied. Some respondents referred to only one of the categories of inspections, whilst others referred to two or all three. Around half of those supporting an increase in levels of inspection noted that 10% of inspections during the works is insufficient:

• Various increases in levels of Category A inspections were suggested, with the majority of respondents suggesting an increase from 10 to 30%.
• Category B inspections were much more likely to be considered satisfactory and not in need of change, compared to A and C inspections. Two respondents noted that Category B inspections could be removed altogether if Category C inspections were increased to 100%.
• Thirteen of those supporting a rise in levels expressed that the Category C inspections (those carried out within three months of the end of the guarantee period) were the most important, and 11 respondents supported an increase in the percentage of sample C inspections from 10% to 100%.

2.23 The main reasons given for supporting an increase in the level of inspection for utility company road works where a fee can be charged by the roads authority were:

• There is an unacceptable level of reinstatements being passed on to the roads authorities in a defective state.
• Increased inspections would focus utility companies on the impact of their works and lead to improved compliance with codes of practice and the reinstatement specification.
• This would be in line with that applicable under the road construction consent legislation, whereby a developer is required to pay the cost of an inspection prior to adoption of maintenance responsibility by the roads authority.

2.24 Other points made by those supporting an increase in the level of inspection for utility company road works where a fee can be charged by the roads authority were:

• Inspections should be carried out by the utilities' own inspectors and they should, through supervision and monitoring, be responsible for ensuring better performance from their contractors and sub-contractors.
• One roads authority mentioned sample size issues - that there has been a steady and significant decline in the amount of agreed chargeable inspections for what is a similar scale of works per year, due wholly to the change in the way inspection units are calculated.

"The methodology of calculating the number of inspection units requires to be reviewed to better reflect a true sample size." (Stirling Council)

2.25 Amongst those opposing any increase in inspection levels, nearly all of the group two responses included some, if not all of the reasons outlined in the NJUG response. The main reasons given for opposing any increase in the level of inspection for utility company road works where a fee can be charged by the roads were:

• The current 30% inspection level is a high sample and gives an extremely strong indication of the quality of utility companies' works and performance:
  "Scottish Power believe that the existing level of 30% is an acceptable sample size of works undertaken which provides a good indication against overall performance. There is no evidence to justify the rationale behind an increase so the level should remain at 30%." (Scottish Power Energy Networks)
• Roads authorities already have the ability to inspect all parts of road works if they feel it necessary (but can only charge for those detailed), through The Inspections Code of Practice (which was agreed by RAUC (Scotland)) and Advice Note 4. (NJUG state these proposals ignore this fact).
• Effective voluntary measures are already in place and accepted by the RAUC(S) community.
• Regional variations would be better tackled through a more focused and targeted approach tailored to the needs of each individual case.
• Around half of those opposing an increase in inspections echoed NJUG in supporting a reduction in inspections for high performing utilities:

"Current practice should be improved such that where any inspections are chargeable, evidence should be provided in all cases that a physical inspection of the site has taken place, i.e. photos and site report. This should prevent inspections being recorded where it is clear from systems that remedial works have not been carried out and it is unclear that a further site inspection has been carried out by the road works authority." (Scottish Water)

Comparison of group responses

2.26 Responses to this question were broadly divided between support for increasing various types of inspection levels amongst roads authority respondents and opposition to any increase amongst utility companies. Twenty two of the twenty three respondents supporting some increase in levels of inspection for utility company road works where a fee can be charged by the roads authority were from group one and the other was from group three. Of the 18 respondents stating that they perceived the current level for inspection was appropriate, and that no change was required, four were from group one, 13 from group two and one was from group four.

Road Works Inspections

Q.4. Should the arrangements for inspection fees be changed, and could this include a performance element?

* Of the seven who did not respond to this question, five were from group three and two were from group one.

Key themes

1. There was broad support across the groups for a change in inspection fees, where a utility company is performing poorly, including a performance element.

2. Over half of group two respondents supported this proposal, but stated that additional regulation was unnecessary.

2.27 Amongst those supporting a change in the arrangements for inspection fees, including a performance element, several included some caveats to their support. Many of those in group two followed NJUG's position that "additional regulation is unnecessary", particularly, they argued, when voluntary measures already in place were proving effective. However, a change to the existing regulation, with inspection fees being changed to incorporate a targeted approach, with a reduction in the number of inspections and fees for high performers, but with additional inspections for those identified as poor performers, could deliver even greater improvements, further incentivising good performance:

"It would seem more than reasonable that those that pay most are those who fail to comply. A targeted inspection regime on failing utilities could be a faster mechanism to achieve a higher standard of reinstatements on our roads. Yes, we think it should be changed and include a performance element." (Shetland Islands Council)

Comparison of group responses

2.28 There was general consensus across groups with 26 respondents agreeing that inspection fees should be changed and include a performance element (eight from group two, and 18 from group one).

Guarantee Periods

Q.5. Do you agree that such increased periods be introduced? What are your reasons for coming to this view?

* Of the six not responding to this question, five were from group three and one was from group one.

Key themes

1. There was a perception that increased guarantee periods would drive up standards and lead to better quality and more durable reinstatements.

2. There was concern that there was not sufficient evidence to demonstrate that reinstatements that have not failed after two or three years would go on to fail after five years.

3. An improved records system was seen as being required to ensure correct identification after long periods.

2.29 The current guarantee period after utility company works are completed is two years, and three years for deeper excavations. Given that road reinstatements are expected to have a service life of 20 years or more, it was proposed that the guarantee periods could be increased from two years and three years up to five years and six years for deeper excavations.

2.30 Among those who supported these proposals, the main reasons for agreeing that such increased periods be introduced were:

• That the current guarantee periods are inadequate.
• Evidence shows that a large number of reinstatements fail outwith the guarantee period but within the residual life of the carriageway, thus requiring public money to be used to carry out often significant repairs.
• Having extended guarantee periods will drive up standards amongst utilities and contractors and help focus on ensuring quality and durable reinstatements.

2.31 Caveats to support amongst those endorsing increased periods, and other issues raised included:

• Steps need to be taken to improve records sufficiently to permit identification after these long periods:
  "A longer guarantee period should encourage better backfill and higher quality but there are practical difficulties in identifying reinstatements after a long period, particularly in the busiest urban areas where there are numerous excavations. In order to enforce longer guarantee periods, consideration should be given to mandatory permanent on-site marking of reinstatements so that there can be no doubt as to who is responsible for a particular reinstatement, years after the event." (Highland Council)
• There is limited evidence that many reinstatements fail during the three years following the end of the current guarantee period. This was also the argument put forward by the majority of group two respondents.

2.32 The main reasons for opposing the introduction of increased periods were:

• A lack of evidence, i.e. no evidence has been provided that suggests that any reinstatement that has not failed after two or three years is likely to fail after five years or beyond.
• Transport Scotland's inspection policy requires that inspections are carried out on a bi-annual basis and they have stated that the majority of structural work defects will manifest themselves within the first two years of the work being undertaken.
• Commercial and financial impacts - any increase in the guarantee period will lead to increased contractor prices and consumer prices going up:
  
  "There is no empirical evidence to suggest that a trench reinstatement which has not failed after either 2 or 3 years is likely to fail thereafter. Transport Scotland's own inspections regime is bi-annual and they have stated that the majority of structural defects will manifest themselves within the first two years of the work being completed. This emulates the findings from the research undertaken across the UK… consideration should also be given to the commercial and financial impact this would have on both utilities and contractors. Extending the guarantee period could increase contractual rates as liability for works could extend beyond contractual terms." (Energy Networks Association)
• Liability and accountability - the extra duration of the guarantee period would lead to disputes on the history and ownership of reinstatement failure.

2.33 Scottish Water proposed that there was a misunderstanding of the cause of failure and types of defects:

"Scottish Water believes that there is a misunderstanding of the cause of failure and types of defects. Defects can be either performance defects or latent defects. Latent defects being where the reinstatement has not been completed in accordance with the Specification for the Reinstatement of Openings in Roads (SROR) in force at the time the reinstatement was completed and performance defects being related to the performance of the materials used in completion of the reinstatement.

If a defect is a performance defect there is an element of usage and wear and tear in the cause of these defects. Extending the guarantee period would require that products such as surface marking materials are required to last for the whole guarantee period. However, these products themselves have guarantee periods of two years.

If defects reported are latent defects, where the reinstatement has not been carried out in accordance with the SROR in place at that time, the guarantee period is deemed never to have started. As such, there is no requirement to increase the guarantee period to ensure that these defects are repaired." (Scottish Water)

Comparison of group responses

2.34 Responses to this question showed a clear split between groups, with 29 responses agreeing that such increased periods be introduced (27 of whom were from group one) 13 disagreeing (all from group two) and two respondents undecided (both from group one).

Summary of 'The Road Network As An Asset'

2.35 As might be expected, the questions on contributions to costs of making good long term damage, inspection levels and increasing guarantee periods showed a dichotomy in opinion between groups one and two. There was a good response to question one, with only three respondents not answering this question. There was more variation in responses in favour to the proposal than against, with the latter tending to follow the official response from NJUG with a few exceptions.

2.36 Question one showed a clear split between those in favour (all group one and some group three) and those opposing the introduction of contributions to the costs of making good long term damage to roads, who included all group two and one from group one. Group two respondents questioned the validity and robustness of the evidence used to underpin the proposal, and they raised the issue of the effect on consumers, on the economy and capital investment programmes amongst other reasons. Group one respondents, in contrast, pointed to the evidence as demonstrating what has long been felt by roads authorities, that the roads service life is being reduced by the actions of third parties, and so it is reasonable to expect these third parties to make a contribution to the upkeep of the opening and the area surrounding their reinstatement.

2.37 The responses to question two showed overwhelming support for the introduction of a three year restriction following road surfacing being brought into legislation. The main reasons for this were around public perceptions, the three year voluntary period already having worked well, encouraging better co-ordination and planning of major works and preserving new surfaces for longer. A number of caveats were given to supporting this, however, most of which focused on exemptions.

2.38 Question three showed a clear split, with support for increasing various types of inspection level amongst group one and opposition to any increase from group two. Those supporting an increase considered Category C inspections as most in need of an increase, followed by Category A.

2.39 There was greater consensus to question four, with more respondents across the groups agreeing that inspection fees should be changed and include a performance element. However, many group two respondents supporting this proposal stated that additional regulation is unnecessary.

2.40 Lastly, question five showed a split in group responses, with group one in favour of increasing guarantee periods and group two against. Those in favour of this proposal stated that it would drive up standards, lead to better quality reinstatements, and that evidence shows that a large number of reinstatements fail out with the guarantee period, which is therefore inadequate. Group two however, challenged this argument and stated that no evidence has been produced to show that reinstatements go on to fail outwith the guarantee period. It was also argued that this would have a financial and commercial impact.