Strategic Consultation on Works on Scottish Roads Analysis of Consultation Responses
4. COMPLIANCE AND ENFORCEMENT
4.1 This chapter presents responses to the five questions that were asked specifically on compliance and enforcement. This was one of the larger sections of the consultation and focused on the scale and process of issuing fixed penalty notices and related issues.
Background
4.2 NRSWA allows roads authorities to seek prosecution resulting in fines of up to £5,000 where a utility company fails to meet its legislative duties. Offences can be committed for not complying with requirements in relation to safety of the works; timing of placement of notices on the SRWR, works taking longer than necessary; and reinstatements (backfilling the excavation) not meeting the correct specification. Summary offences have been in existence since the introduction of NRSWA and it is seen as reasonable to review them given the considerable time since their introduction.
4.3 The first proposal suggested an extension of the summary offences for which a penalty notice can be issued. Currently, on conviction, fines can be issued for those summary offences. Fixed penalty notices can currently be issued for offences relating to the timing of notices entered on the SRWR only. It was suggested to extend the fixed penalty notice regime to cover existing summary offences relating to unauthorised works, signing, lighting and guarding failures, and non-compliance with the reinstatement specification.
4.4 The second proposal was for further new summary offences to be created, and for these offences to be dischargeable by fixed penalty notices. Four new areas to which fixed penalties could be applied were put forward, these being: misclassification of 'emergency works'; failing to 'notice' actual start notices by the due time; failure to rectify defective reinstatements within a reasonable period; and failure to rectify utility company apparatus within a reasonable period.
4.5 The third and fourth proposals in this section covered the possibility of increasing both the overall value of the fixed penalty notice penalty through, for example, indexing it to an inflation measure. There was also a proposal to increase the maximum level of penalty imposed by the Commissioner to £200,000.
4.6 The fifth proposal was to clarify the technical definition of 'co-ordinate' and 'co-operate' for the purposes of the legislation.
Findings
Offences under NRSWA
Q.9. Should there be an extension of existing summary offences dischargeable by fixed penalty notice? 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. The majority of group one respondents felt that the current system was not working and an extension of existing summary offences dischargeable by fixed penalty notice would be a more efficient method, leading to better quality reinstatements, fewer unauthorised road works and improved performance in signing, lighting and guarding.
2. Group two respondents considered the proposed changes as unnecessary, stating that there are already suitable existing measures that road works authorities can use to address non-compliance.
3. Some roads authorities had concerns about Section 124 of NRSWA and several felt that Section 130 of NRSWA should either not be applied, or else be applied on a case-by-case basis.
4.7 Over half of respondents (29) agreed that there should be an extension to some or all of the three summary offences outlined in the consultation paper. Almost all of those respondents (23) agreed to all three offences being subject to FPNs. The main reasons given for supporting an extension of existing summary offences dischargeable by fixed penalty notice were:
- The current system is not effective - the current arrangements for roads authorities to take action to deal with these offences were seen by many as problematic, time consuming and costly to the roads authority (costs which were perceived not to be recovered). These barriers were seen as a deterrent by some to taking action and an ineffective use of the court's time.
- It would be an improved and more efficient method - some respondents considered it to be a simpler and clearer way of managing offences and ensuring that punitive measures were applied. It was also seen that it would encourage better communication and working practice. Some felt that this approach has been successful in improving the timeliness and accuracy of noticing and should improve performance in signing, lighting and guarding and the quality of reinstatement.
- It will improve outcomes - encouraging a positive increase in the quality of the reinstatement works as well as an improvement in the health, safety and wellbeing of workers. Allowing the discharge of other current offences by FPN was seen as a major step forward (particularly in relation to safety).
4.8 Specific reasons for supporting the introduction of each FPN outlined included:
- Section 110 - would reduce the number of unauthorised works on roads and assist with the co-ordination of works.
- Section 124 - would encourage defective apparatus to be repaired without delay and improve safety for all road users and operatives. Some roads authorities felt that Section 124 should be used for failing to apply for a permit for traffic signals, rather than cases of blown over barriers[2]:
"Roads authorities can use a considerable amount of resource in the following up of defective apparatus. To encourage statutory undertakers to repair their apparatus timeously, the introduction of a Fixed Penalty Notice, when defective apparatus is not repaired within the agreed timescales, should be introduced." (West Lothian Council) - Section 130 - several respondents noted that when the provisions of NRSWA were first introduced, it was agreed by both roads authorities and utility companies that defect inspections should be charged at double the rate for other inspections. Subsequent reviews reduced this to the same rate as other inspections. The introduction of a FPN for not reinstating excavations in accordance with the specification would bring about the original intention as a FPN is roughly double the value of an inspection and therefore incentivise improved performance[3]:
"Statutory undertakers are not penalised effectively where works are not carried out to specification therefore the ability to issue an FPN under S130 would be welcomed." (Clackmannanshire Council.)
4.9 Two roads authorities supported the issuing of FPNs for S110 and S124 summary offences but not for S130. Reasons given were that this would put an additional burden on road works authorities to carry out material testing of utility reinstatements to ensure compliance with the SROR (the feeling being that the duty should be with utilities and not the road works authorities to ensure that their reinstatements comply with the specification and supplemented by the National Coring Exercise). The present system for monitoring and reporting reinstatement failures is considered to be workable and the new proposal may prove difficult to implement in practice:
"Currently, if a failure is recorded upon inspection then the undertaker is required to undertake remedial works to the reinstatement. This may be viewed as being sufficient penalty without the imposition of an FPN." (North Lanarkshire Council)
4.10 Those in group one, both supporting and opposing an extension of existing summary offences, also mentioned administrative costs, noting that penalties should be at a sufficient level to act as a deterrent and be able to cover administrative costs too.
4.11 A number of those supporting an extension stated that the current scope of the fixed penalty scheme leaves a gap in the enforcement regime. While they felt that an extension of the FPN system would help address this, they also felt that a "comprehensive review of possible extensions would be worthwhile". One respondent suggested that there are a number of anomalies and little incentive to improve and that the level and reasons for penalty should be reviewed. Comments also stated that the review could include, for example, other R(S)A offences and the continued failure to repair defective reinstatements.
4.12 Overall, 16 respondents disagreed with some or all of the three summary offences. The main reasons given for opposing an extension of existing summary offences dischargeable by fixed penalty notice were:
- No need or value - they are unnecessary and there are existing measures that road works authorities can use to address non-compliance.
- Section 110 - road works authorities are already able to prosecute utility companies who do not notify them of their works. These failures are currently covered by issuing S113 and/or S114 FPNs for starting works without a notice. As such there is no requirement to extend FPNs specifically for S110 failures.
- Section 124 - allows roads authorities to prosecute utility companies for signing, lighting and guarding non-compliance. NJUG stated that once the revised Safety Code of Practice is finalised, its launch could provide a catalyst for re-emphasising the importance of correct signing, lighting and guarding through RAUC(S).
- Section 130 - allows roads authorities to tackle non-compliant reinstatements. RAUC(S) already has a coring programme to deliver year on year improvements in the quality of reinstatement, with higher percentage targets set each year.
- Could devalue the culture in Scotland of working together for the community, and lead to a deterioration in relationships.
- Costs involved - where a reinstatement is not undertaken to specification in the first instance, this is known as a latent defect. Utility companies are required to undertake remedial works to put right such non-compliant reinstatements:
"To prove a latent defect, a road works authority must produce evidence of wrong doing. The cost associated with this is reimbursable and significant in magnitude, and therefore NJUG does not believe that an FPN is the right mechanism for such an issue." (NJUG) - Would increase the regulatory burden on businesses:
"Adding such an additional burden makes it more difficult in these present times of austerity to maintain a sustainable business that provides local employment." (Morrison Utility Services) - The need for evidence - many of those opposing any extension, stated that an analysis of the costs and benefits of extending FPNs to these offences should be undertaken before any decision can be taken.
4.13 Particular opposition to Section 124 from three respondents was shared by those supporting an extension of existing summary offences. In particular, that the introduction of a FPN could send out the wrong message and have unintended consequences:
"This is a health and safety issue so utilities should not be permitted to discharge their statutory rights through a single fine. This could encourage the wrong behaviours and impact on site safety." (Energy Networks Association)
"SGN feels that it would be inappropriate to allow a utility to discharge its responsibilities for correct signing, lighting and guarding by paying an FPN." (SGN)
4.14 Three roads authorities opposed an extension of existing summary offences dischargeable by FPN. These three authorities do not currently use FPNs because of the costs to administer, and so did not feel that an extension was relevant. They also felt that on the whole, a good working relationship with utilities can normally ensure compliance. However, two of the three said that if inspections were increased, they would see the issuing of FPNs under Section 130 of the Act as a positive option for improving reinstatement quality.
4.15 One group two respondent opposed changes to Sections 124 and 130 but was supportive of introducing FPN for Section 110.
Comparison of group responses
4.16 Of the 29 respondents who agreed that there should be an extension to some or all of the three summary offences outlined in the consultation paper, 26 were from group one, two were from group three and one was from group four. All 13 group two respondents disagreed with these proposals, as well as three from group one. However, the latter group from group one is discussed above.
New Offences Dischargeable by Fixed Penalties
Q.10. Should we create the proposed new summary offences with a view to introducing fixed penalty notices? Please state the reasons for your view.
* Of the five not responding to this question, four were from group three and one was from group one.
Key themes
1. As with Question 9, the majority of group one respondents felt that roads authorities are currently unable to manage utility company non-compliance within existing legislation and so the proposals were welcomed.
2. Amongst those supporting the proposal, there was most discussion about, and opposition to, the proposal on 'misclassification of works'.
3. Most group two respondents opposed all the proposals except "Not noticing 'actual start' notices by the due time", which the majority had no objection to.
4.17 Twenty nine respondents supported the creation of new summary offences with a view to introducing Fixed Penalty Notices, 16 respondents opposed the proposals and five did not answer this question. Those in support of these proposals felt that roads authorities were currently unable to manage utility company non-compliance with legislation and that proposals could lead to a change in behaviour. This proposal was considered to:
- Improve safety, including the health, safety and wellbeing of workers.
- Improve the quality of reinstatement works (and ensure that reinstatement and apparatus defects are dealt with quickly).
- Improve co-operation and co-ordination (through ensuring accurate information is placed in the SRWR).
4.18 However, of the 29 in support of this proposal, eight supported only some of the proposed new offences, but not others. The table below outlines which ones were supported by these eight and which were not, alongside reasons given for the support or otherwise.
|
New Offences Dischargeable by FPN |
Support |
Don't support |
Not Sure |
Reason(s) given for supporting |
Reasons for not supporting |
Reasons for being undecided/Caveats |
|---|---|---|---|---|---|---|
|
Misclassification of works |
6 |
2 |
This would already incur a Fixed Penalty under Section 114 so there would be little purpose in creating a new offence. (4) |
It may be difficult for roads authorities to prove that utility company works have been deliberately misclassified to circumvent longer noticing period. (3) |
||
|
Not noticing 'actual start' notices by the due time |
7 |
Making actual start notices a legal requirement would be consistent with comparable existing requirements. (6) |
The offence of 'actual start' notices would need more investigation and consideration before becoming an offence. |
|||
|
Failure to rectify a defective reinstatement within a reasonable period |
7 |
1 |
Stronger enforcement powers would assist roads authorities and encourage consistency - statistics show this is an area where improvement is required. (4) |
There would need to be clear definitions of the terms 'reasonable period and timescale' for both roads authorities and utility companies. (2) |
||
|
Failure to rectify defective utility company apparatus within a reasonable period |
7 |
Stronger enforcement powers would assist roads authorities and encourage consistency - statistics show this is an area where improvement is required. (4) |
There would need to be clear definitions of the terms 'reasonable period and timescale' for both roads authorities and utility companies. (2) |
4.19 A further eight respondents proposed additional summary offences that were not on the list proposed in the consultation document. These include FPNs for:
- Failing to provide reinstatement information - the reinstatement information is not always provided by utility companies and this can be seen by roads authorities as essential for co-ordination and location purposes (suggested by three respondents).
- Extensions to notices, without any discussion or agreement with the roads authorities (suggested by four respondents).
- Major works notices starting without any traffic management arrangements being discussed or agreed with the roads authority (suggested by four respondents).
- Failing to respond to direction notices within a reasonable period (suggested by one respondent).
- Remaining on site after a proposed end date has passed (suggested by four respondents):
"Closure information is essential for co-ordination purposes. At this time it is required within 24 hours of physically leaving the site. If a notice expires without extension, as no specific offence has occurred, utilities cannot be given an FPN for the period between when the notice expires and the closure information being submitted. Even although an occupation of the road has no valid notice. Remaining on site after a notice expires, should be a specific FPN." (West Lothian Council) - Defective apparatus that fails two 17 day inspections (suggested by one respondent):
"The City of Edinburgh Council has a major problem with utilities apparatus that fail and are continually re-inspected without attempts to repair them, especially if designated low risk. The introduction of a new fixed penalty would, therefore, be welcomed." (The City of Edinburgh Council) - Failing to reinstate in accordance with the specification or rectify a defective reinstatement or apparatus within a reasonable timescale. These FPNs should also be repeatable if the utility company fails to attend the site within an appropriate period after the first FPN notice (suggested by one respondent).
4.20 Sixteen respondents opposed the proposals. The reasons given by the three group one respondents for this were around the administrative burden of issuing FPNs (which they currently do not issue) and the fact that, in the main, they have good working relationships with most utility companies. Nevertheless, one roads authority did support the actual start notice becoming a legal requirement and another supported the issuing of FPNs under Section 130.
4.21 All of the utility companies and related organisations opposed this proposal. The main reasons being that:
- Roads authorities already have regulatory tools under NRSWA:
"There are various powers and duties currently under NRSWA to curtail misclassification, the abuse of start notices and to rectify reinstatements and apparatus without the need for additional FPNs. The ultimate sanction rests, rightly so, with Commissioner for those poor performers where a roads authority is struggling to see improvement in standards." (Vodafone UK) - The role and support of RAUC(S) encourages co-operation, and these changes would devalue the culture of working together for the community that exists in Scotland.
- There is a lack of evidence to support the need for these new summary offences:
"In line with regulatory good practice, we would expect to see an analysis of possible options for tackling the issue identified that includes reforming the existing regulatory tools. Only once this has been complete can a view be reached on introducing new summary offences." (Scottish Water)
Not noticing 'actual start' notices by the due time
4.21 The overwhelming majority of group two respondents stated they had no objection to the addition of mandatory actual start notices, and that this is currently a legal requirement in England and Wales:
"SGN feel that issuing an actual start date notice is an important tool for effective co-ordination for road works and as such we would support an additional FPN for failing to do so. However, we would continue to suggest that the cut off for this notice remains at 12:00 the following day, to allow notices to be sent from remote areas". (SGN)
Misclassification of works
4.22 All but one of the group two respondents felt that this was not a significant issue, and so there would be no value in creating a further offence. Several respondents stated that they would like to see data/evidence to support this proposal:
"Not a substantial problem and would welcome sight of any data on whether this is a widely adopted approach by works promoters. (If there are individual cases with a particular works promoter, then the individual work promoter and authority should seek to resolve, if necessary, with support from the Commissioner)." (NJUG)
4.23 One group two respondent did not object in principle to the addition of misclassification of works, but in line with good practice would expect to see an analysis of the costs and benefits of taking this action.
Failure to rectify a defective reinstatement within a reasonable period
4.24 All group two responses which referred to this proposal stated that there are already adequate measures under NRSWA to address this:
"SGN occasionally experiences periods of very high workload due to rapid increases in the number of reported gas escapes, for example, during very cold weather. At these times, our priority will always be to divert available resources to meet these demands and the repair of minor reinstatement defects may be delayed until we can release the necessary resource. We are of the opinion therefore that the issuing of FPNs for failure to repair defective reinstatements within a reasonable period would serve little purpose save to add to the cost and administrative burden associated with FPNs generally. Roads authorities already have measures to which they have recourse, including rectifying the defective reinstatement themselves and charging the utility." (SGN)
Failure to rectify defective utility company apparatus within a reasonable time
4.25 As above, all group two responses which referred to this proposal stated that roads authorities already have measures to which they have recourse to encourage utility companies to rectify defective apparatus. NJUG stated that any persistent problems can be dealt with by RAUC(S) under the Code of Practice for Inspections. Many group two respondents also pointed out that it is not in a utility companies' interest to leave its apparatus defective for any length of time:
"RUAC (Scotland) is currently considering the issue of an Advice Note detailing an agreed process for the management of defective apparatus which will provide a clear guide regarding timescales for repairing defects on utility apparatus to utilities and roads authorities and should preclude the need for additional legislation." (SGN)
" ...NJUG believes the emphasis should be on road works authorities and utilities communicating with each other and working together to drive up standards, and rectify any quality issues or non-compliances as effectively and quickly as possible." (NJUG)
Comparison of group responses
4.26 Overall, 29 respondents supported the creation of new summary offences with a view to introducing FPNs and almost all of these were from group one (two were from group three and one was from group four). One third of respondents (16) opposed the proposals and almost all of these were from group two (in addition to three from group one).
Fixed Penalty Amounts
Q.11. Do you agree that the current fixed penalty notice amounts should be increased in line with inflation e.g. consumer price index?
*Of the six who did not respond to this question, five were from group three and one was from group one.
Key themes
1. There was support for an increase which, at a minimum, would be in line with inflation. Those in support thought the level of penalty should be sufficient to act as a deterrent, and to recover the costs of administering a scheme.
2. Those opposing any increase suggested felt it was not justified or needed, again stating that there is a lack of evidence to change the amount and that the current penalty level was acting as an effective deterrent to committing offences.
3. An alternative view on the level of increase was that it should be linked to the minimum fine for a summary offence.
4.27 The main reasons for supporting the proposal were:
- The level of penalty should be sufficient to act as a deterrent - i.e. should exceed the cost of obtaining the appropriate permit or consent for Roads (Scotland) Act offences:
"For a penalty to be a sufficient deterrent it needs to be severe to make any sort of impact on a utility undertaker. Possibly 'stepped' fines for persistent offenders could be considered as well as an initial inflationary increase… " (Scottish Borders Council) - Amounts should be increased substantially so that the costs of administration should be recovered (at least £250 and be index linked thereafter).
- Fixed Penalty Notices, as for all penalties, should be subject to an annual review and increases to cover inflation and on-going, ever increasing costs.
"Scottish Water has no issue with the increase in penalty amounts. There should also be a consistent approach relative to the levels of fines in other areas of road management e.g. parking tickets, bus lane offences etc." (Scottish Water)
4.28 Alternative views supporting the proposal were:
- The amount should be reviewed every five years to ensure that the financial penalty is having the desired effect of improving the performance and quality of work. Given the on-going reductions in local authority funding, where large parts of expenditure are ring-fenced to key government priorities, Ministers need to recognise that many authorities are now reliant on this income to pay for inspectors and officers who carry out this work.
- Fixed Penalty Notice levels should be linked to construction inflation in line with other community costs. They should be rounded up to the nearest £10 to make administration easier. The possibility of different levels of fine for different types of offence should also be considered. For instance, someone who is late with a notice should not be considered as equivalent to someone who works without a notice.
- Other respondents stated that consideration should be given to penalties being set at a level comparable to that of summary offences.
4.29 The main reasons for opposing the proposal were:
- There is a lack of evidence on the costs of administering a fixed penalty notice scheme or benefits coming from the imposition of penalties.
- Penalties are already too high.
- NJUG's own performance figures indicate that only 2% of the total number of notices attract a fixed penalty notice. The current level of charges acts as an effective deterrent with a compliance rate of 98%. Therefore, there is no justification for increasing the fixed penalty notice level, as the current level is driving a high level of performance.
4.30 Other views expressed in response to this proposal were:
- Fixed penalty notice levels should be increased to reflect the value of the road as it relates to the travelling public. The penalty level should take into account the lane rental value if these are enacted.
- There should be an increased emphasis on the quality of fixed penalty notice assessment carried out by roads authorities prior to issuing penalties, thereby reducing time wasted "arguing over spurious penalties".
- If a fixed penalty notice is to have the same deterrent effect, it would be logical for the fixed penalty level to be linked to the maximum fine for a summary offence. One respondent suggested that whenever the scale of maximum penalties for summary offences is reviewed, fixed penalty levels should be increased or reduced by a comparable proportion.
- Increases in fixed penalty notice levels need to offset any increased costs of the roads authority in operating the system. If CPI of inflation is the best mechanism for this, then it should be used. However, there may be merit in a system based directly on actual costs.
- It is commonplace for promoters to accept penalties which they then pass on to their contractor. The current level of penalty should therefore be reviewed and a mechanism put in place to allow the levels to be reviewed on a bi-annual basis.
- As fixed penalty notices are a financial deterrent, there is no reason why inflation should decrease that deterrent. The amount of a penalty should be linked to inflation. There should be a rounding up increase to the nearest £5 and there should be no increase of less than £5. If the inflationary increase is less than £5, it should be deferred to the following year, adding both years together. Also, different levels of penalty should be levied for different types of offence.
Comparison of group responses
4.31 Just under half of respondents (24) supported the proposal to increase fixed penalty notice levels in line with inflation and, of these, 21 were from group one, two were from group two and one was from group three. Ten respondents - all from group two - opposed the proposal; and 11 respondents offered an alternative view.
Commissioner Penalty Limit
Q.12. What maximum level of penalty do you consider is required to ensure that it can influence the behaviour of utility companies and roads authorities which do not comply with their duties? Should this be increased in line with inflation e.g. consumer price index?
Key themes
1. Around half of respondents did not state a figure in response to this question. Twenty-one respondents thought the level of penalty should be increased, while 18 thought it should remain at the same level.
2. Many respondents (20) did not answer the part of the question that asked whether this should be increased in line with inflation. Amongst those who did, it was agreed that it should be increased in line with inflation.
3. There was some concern amongst group one respondents about how an increase would impact on roads authorities. It was argued by many that the reputational damage to utility companies is likely to have more impact than increasing the level of penalty.
4.32 Although this question asked respondents to state a figure, only 26 of the 43 responding provided a figure. Those in group two opposed any increase but did not state a figure, so these responses have been categorised as support for the existing £50,000 as the maximum level of penalty. Table 4.2 summarises responses.
|
Level of penalty proposed |
Number of respondents |
Reasons given/ Comments |
|---|---|---|
|
£200,000 |
11 |
"…increasing to £200k would certainly keep the Road Works Community focused on the year on year Improvements sought by the Commissioner." (Argyll and Bute Council) |
|
£100,000 |
1 |
None given. |
|
£50,000 |
18 (13 from group two) |
Group two reasons - The existing level of penalty is sufficient to influence the behaviour of utility companies and roads authorities, and there is no evidence provided to support a change: |
|
In support of increasing the penalty but no figure given. |
9 |
"The Commissioner should have the power to impose a penalty as considered reasonable in the circumstances of the offence." (North Ayrshire Council) |
|
No figure provided or indication of support/opposition for an increase. |
4 |
* Seven respondents did not answer this question. Five were from group three and two were from group one.
4.33 Many of the responses from group one showed a concern for how an increase in penalty would impact on roads authorities. Comments repeated by those in group one, regardless of the level of penalty they proposed, were that there needs to be a link between the size of the organisation and the maximum penalty that can be levied upon them. Another theme that was mentioned, mostly by group one respondents, was that fines should be relevant to the offence. One respondent in group one pointed out that there will be a difference in how these penalties will impact on roads authorities and utility companies:
"…an increase in the level of fines that could be imposed on a roads authority is possibly inconsistent with the third aim of this consultation, to protect the structure of roads, as fines are likely to be funded from roads maintenance budgets rather than from increased customer charges, in the case of a utility company." (Dumfries and Galloway Council)
4.34 A theme that was expressed mostly by respondents in group one, but also by some in group two, was that the reputational damage to utility companies was likely to be greater than the impact of fines.
4.35 Just under half of respondents (20) across the groups did not answer the second part of the question, which asked whether the level of penalty suggested should be increased in line with inflation. Eighteen respondents thought that it should (or be 'reviewed periodically' - two of this 18). Five respondents stated that it should not be increased in line with inflation.
Comparison of group responses
4.36 All respondents in group two opposed an increase in the maximum level of penalty. The majority of group one respondents supported an increase. Those supporting an increase in line with inflation were from groups one and three, and one respondent from group two stated they held no objection to this. All those opposing an increase in line with inflation were from group two.
Definitions of Co-operate and Co-ordinate
Q.13. Do you agree that the definitions of co-operate and co-ordinate in Sections 118 and 119 be revised as proposed? Please provide the reasons for your view.
* Five people did not respond. Four were from group three and one was from group one. One respondent provided an unclear response.
Key themes
1. There was considerable opposition from both main groups 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'.
2. Many respondents stated that the definitions needed to be clearer and not open to misinterpretation.
3. Those who disagreed with all parts of the proposed revised definitions, stated that the existing definitions of 'co-operate' and 'co-ordinate', if used effectively, are right and appropriate and so amendment was unnecessary.
4.37 The consultation document set out the Commissioner's recommendation that, for clarity, legislation be revised to state that:
""Failure to comply with
- any duty under the NRSWA and supporting regulations; or
- any requirement in a statutory code of practice; or
- such practice as appears to the Scottish Road Works Commissioner to be desirable
shall be deemed to be a failure to comply with Sections 118 and 119 of the NRSWA."
4.38 Of the six respondents who agreed that the definitions of co-operate and co-ordinate in Sections 118 and 119 be revised as proposed, only two provided reasons for this view. The reasons were that it would provide greater clarity and understanding.
4.39 A total of 14 respondents agreed with the first two bullet points, but did not agree with the third. The main reasons given for supporting the first two provisions were that these would remove any doubt about the extent of the Commissioner's powers to deal with failures to comply with statutory requirements, and that these would reduce disagreements between organisations.
4.40 However, there was strong feeling amongst many respondents that the third proposal should not be included in the legislation. These criticisms related to the subjective nature of the term, which was considered discretionary and not to add clarity to the legislation. This proposal was considered to give the Commissioner unreasonable/excessive powers, with some viewing this as leading to an autocratic approach to the co-ordination of works on roads in Scotland. Some pointed out that this could lead to disagreements/disputes as to what is 'desirable', or that it could be open to abuse by organisations that cover the whole of the UK rather than just Scotland:
"The existing two criteria used to assess failure to comply have a clear statutory basis. However, the potential for subjectivity by any Commissioner decision in exercising the proposed third criteria does not appear to COSLA to provide the outcome of greater certainty and clarity to all parties within the process without further guidance to outline what would be broadly deemed desirable." (COSLA)
4.41 It was also felt that where there are problems associated with failure to comply with the current arrangements which are related to co-operation, it would be better to deal with these using current legislation, rather than using a 'catch all' phrase:
"There are certainly occasions where problems are caused by organisations refusing to comply with voluntary arrangements agreed by both sides of RAUC(S). However, these could be argued to fall within the everyday meaning of co-operation and so it should be possible for the Commissioner to deal with them within the existing legislation." (Aberdeenshire Council)
4.42 Many respondents from groups one and two argued that the definitions should be clear and not open to misinterpretation, and that any changes should be agreed through RAUC(S) to ensure commitment and understanding by all:
"Both roads authorities and utilities have a right to be able to interpret from the legislation itself the standard of conduct which is expected of them." (Highland Council)
4.43 Seven of the 17 respondents who opposed this proposal stated that this was specifically because of the third bullet point. Two respondents, both from group one, stated that they could not support the legislative revisions unless point three was removed or clearly defined.
4.44 The other ten respondents, who opposed this proposal, stated that the existing definitions of 'co-operate' and 'co-ordinate', if used effectively, are right and appropriate and so the changes were not necessary. These respondents also reported that the suggested amendment was open-ended and could be used inappropriately without suitable safeguards. The majority of these ten respondents stated that any proposed change should be agreed with and through RAUC(S), and ideally discussed within HAUC (UK). NJUG and those following their response proposed an alternative, as ways in which the Scottish Road Works Commissioner and RAUC(S) could deliver even greater results through raising the level of proactive co-ordination and co-operation by:
- Incentivising roads authority managers to reduce disruption through each authority agreeing individual targets for reducing the number of days overall occupation of the road; and
- Continuing to promote earlier advance planning, through the sharing of utility company and roads authority plans up to two years in advance, thereby allowing easier flexing of works to facilitate joint occupation or sequential working.
4.45 Lastly, seven respondents reported that 'greater clarity' was required. Four of these respondents simply stated that 'greater clarity would be beneficial', which most likely refers to greater clarity being required in all parts of the proposed revised legislation, but this was not made clear. The other three respondents offered more detail and suggested that there needed to be greater clarity of definitions as to what is meant by 'co-operate' and 'co-ordinate' as it is open to interpretation at present, and greater clarity would be required to enable enforcement:
"JAG (UK) believes that the definitions of the respective duties do need clarification with more emphasis on those parts that can be clearly identified as failure to carry out the duty." (JAG(UK))
Comparison of group responses
4.46 Of the six respondents agreeing that the definitions be revised as proposed, five were from group one, and one was from group four. Of the 17 who did not agree that the definitions be revised as proposed, ten were from group two, and seven were from group one. Of the 14 respondents who agree with the first two bullet points but not the third, 11 were from group one, and three were from group two. Lastly, six of the seven stating that more clarity is required were from group one, and one was from group three.
Summary of Compliance and Enforcement
4.47 In all but the last question in this chapter (Question 13) there was a clear split between support for proposals from group one and opposition to the proposals from group two. Whilst group one respondents noted concerns and caveats to their support in some questions, overall they were supportive of the proposals in questions 9-12. In the main, the feeling among this group was that these changes would improve the effectiveness of the current system, making it more efficient and would improve co-operation. Increasing fixed penalty amounts were thought to increase the deterrent and increasing the Commissioner penalty limit was supported in order to encourage the road works community to continue to improve their performance in complying with their statutory duties (although group one also had particular concerns about what the impact of an increase in penalty would be on them).
4.48 In the main, in Questions 9-12, group two respondents considered the proposals as unnecessary, considering there to be suitable existing measures/regulatory tools to deal with such issues; that often times there was no evidence to support these proposals, that they could increase the regulatory burden on businesses and potentially devalue working relationships in the road works community in Scotland. Group three respondents were more likely to be in agreement with the proposals or else to not have answered the questions.
4.49 Question 13 brought respondents from across the groups together in their opposition to the third bullet point, on 'such practice as appears by the Scottish Road Works Commissioner to be desirable'. There was strong feeling amongst many respondents that this should not be included in the legislation, because of what was considered to be the subjective nature of the term. The first two proposals in this question, however, were broadly supported by group one respondents.