5. REVIEW OF OTHER CURRENT AND PROPOSED LEGISLATION
5.1 This chapter covers a wide range of issues which have previously been considered by the Scottish Road Works Policy Development Group, and which would necessitate new legislation. This encompassed four main questions on safety, record keeping, permissions, and a new designation of 'major road manager' for access to the Scottish Road Works Register.
5.2 The creation of the Scottish Road Works Policy Development Group, which includes representatives both from roads authorities and utility companies, allowed close attention to be brought on the legislation surrounding road works. This group identified a series of areas in which, for improvement to be made, there would have to be primary legislation.
5.3 The consultation sought views on whether the Code of Practice for Safety at Street Works and Road Works should become mandatory for roads authorities. It is already mandatory for utility companies, and so this proposal would make it clear that roads authorities and utility companies would be required to work to the same standards.
5.4 The consultation also included two questions on the subject of record keeping. The first explored it being made mandatory for roads authorities and utility companies to keep digital records of their apparatus in the roads and to supply it for use on the SRWR. The second sought views on record-holding obligations in situations where companies which do not have statutory rights to place their apparatus in the road are given access for specific projects.
5.5 The final question focused on the creation of a new legal entity of 'major road managers,' each of which would be individually identifiable and from large organisations such as major airport and seaport operators which own significant lengths of road open to the public. It would require these organisations to place notices of their works on the SRWR and aid the overall co-ordination of works.
Safety at Road Works
Q.14. Do you agree that the Code of Practice for Safety at Street Works and Road Works should become mandatory for roads authorities? Please provide the reasons for your view.
* Of the five who did not respond to this question, four were from group three and one was from group one.
1. The majority of respondents agreed that the Code of Practice for Safety at Street Works and Road Works should become mandatory for roads authorities.
2. The main reasons for this 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.
3. Those who disagreed with this proposal reported that roads authorities are obliged to comply with Chapter 8 of the Traffic Signs Manual. It was their opinion that the Code of Practice is directed at/more suited to works of an isolated excavation nature, and is not detailed enough to cover the type of activities carried out by roads authorities.
5.6 The main reasons given for agreeing that the Code of Practice for Safety at Street Works and Road Works (CoP) should become mandatory for roads authorities were that it would:
- Improve safety at road works for both operatives and road users/public:
"The impact and risk to the road users, pedestrians and the workforce is the same irrespective of who is undertaking the work." (Energy Networks Association)
- Provide a consistent approach for all, particularly in terms of the same safety standards and consistency for contractors, thus reducing confusion. Some respondents mentioned that contractors may work for both parties, and adhering to two standards can undermine the correct behaviours that the code of practice is in place to guide:
"Whether the works are for road maintenance, street lighting, water or communications, we all use the same contractors and much the same equipment to complete our work. These works must be conducted safely through common standard to protect both the road users and the workforce implementing it." (Vodafone UK)
"Yes, Scottish Water agrees that the Code of Practice for Safety at Street Works should become mandatory for road works authorities. Contractors working for both parties are unclear on what applies and when. Customers are confused about what standards should be expected from any organisation working on the road." (Scottish Water)
- It would remove the anomaly of different prosecution levels:
"The Code of Practice for Safety at Street Works and Road Works is equally applicable to utility company works and roads authority works. Making it a statutory code for roads authority works would remove the current anomaly whereby utility companies can be prosecuted for a minor breach under the New Roads and Street Works Act whereas roads authorities can only be prosecuted under the much more draconian provisions of the Health and Safety at Work Act." (East Renfrewshire Council)
- Demonstrate fairness or 'parity of treatment'.
- Improve the safety, quality of works and reduce disruption:
"NJUG also believes that given that 27% of registered works in the road and overall around 50% of activities are completed by road works authorities, parity of treatment for all those undertaking works in the street would lead to a considerable improvement in the safety and quality of works, and reduced disruption." (NJUG)
5.7 Another less commonly stated view in support of this proposal was that roads authorities should lead by example.
5.8 The main reasons for placing a caveat to the support for making the CoP mandatory for roads authorities, was around Chapter 8 of the Traffic Signs Manual and concern that there should be a constant and uniform approach for anyone working on a road using the same legislation and safety directions.
5.9 Around half of those including a caveat to support felt that the CoP is primarily directed at works of an isolated excavation nature and therefore is not detailed enough to cover the full range of activities carried out by roads authorities. The CoP also refers heavily to Chapter 8 which roads authorities are already obliged to comply with. Over half of those stating caveats to support felt that this anomaly would have to be fully addressed prior to implementation, with any new version catering for works on all types of roads (and traffic volumes) and not placing unreasonable demands on those undertaking works:
"… any potential conflicts with Chapter 8 of the Traffic Signs Manual should be identified and rectified prior to any mandatory application of the code to roads authorities. Particularly in light of Health and Safety Executive use of the Traffic Signs Manual in prosecutions and the anticipated review of Traffic Signs Regulations and General Directions in the near future." (Dumfries and Galloway Council)
5.10 One respondent who had caveated support was concerned about the practical difficulties in the application of the CoP with regards to its interpretation on roads of sub-standard width. In particular, the concern was that strict application of the code would result in a far greater number of road closures where the specified safety zones are not achievable, with road closures and diversionary routes likely to be considerable in the Highlands. This respondent was concerned that roads authorities should be able to undertake a risk assessment to balance the danger to road workers with the dangers to traffic using diversionary routes.
5.11 The main reasons for disagreeing that the CoP should become mandatory for roads authorities, were similar to the reasons held by those who had caveated support i.e. the different type of works carried out by roads authorities compared to utilities and the perception that the CoP is directed at/more suited to works of an isolated excavation nature, and it is not detailed enough to cover the range of activities carried out by roads authorities (such as resurfacing/reconstruction of roads). Lastly, there were concerns from two respondents as to how this would be policed/who would be responsible for ensuring compliance.
Comparison of group responses
5.12 Of the 29 respondents agreeing that the CoP should become mandatory for roads authorities, 13 were from group one, 13 were from group two, two were from group three and one was from group four. All of the eight respondents expressing caveats for support were from group one and all of those disagreeing with this proposal were from group one. This question demonstrated a split of opinion amongst group one, but with a majority in agreement with this proposal.
Q.15. Do you agree 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 SRWR? Please provide the reasons for your view.
* Of the seven who did not respond to this question, four were from group three, two were from group one and one was from group two.
1. The main reasons for supporting this proposal were that it would improve the safety of operatives and the public over time and the planning of works. Planning and safety reasons overlapped, for example, around reducing the risk of damage.
2. The majority of respondents agreed to this in principle, but were aware of the significant scale of this exercise and the resource implications which were likely to be particularly onerous for roads authorities who do not currently have a complete digital record of all their existing assets. Some of those disagreeing with the proposal had concerns about security - particularly the implications of records ending up 'in the wrong hands'.
3. Those supporting this proposal all stated that any change to a mandatory system would have to be introduced over a reasonable period and many suggested this should be phased in. Many respondents stated that timescales would have to take account of the scale of the task for all involved and would have to be mutually agreed.
5.13 The main reasons given for agreeing 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 SRWR, were that it would:
- Bring added value and safety benefits to both utility companies and roads authorities with apparatus recorded on Vault. More specifically, with more remote access available, operatives would have up-to-date information on site for their safety and be able to avoid damage to other services.
- Assist in speeding up the planning of works, for asset management planning as well as general planning and design. Reasons given were that this could avoid conflict with other apparatus when planning a new connection, mains renewal or road construction, and/or would save time looking for water pipes and during emergencies, information on what infrastructure is in the area will be available in a more rapid and coherent manner:
"It is very important to try to get as much accurate information on plant records as possible from all involved and the digital format is undoubtedly the solution for the future…" (Shetland Islands Council)
"With Vault already in operation in Scotland, the road works sector should work together to use it to move towards digital records over an agreed period of time." (NJUG)
5.14 However, half of the respondents had reservations or caveats for their support. A major concern held by respondents (from groups one and two) was around whether this change would be retrospective or prospective. This was not made clear in the question and so may explain some of the reservations expressed by respondents.
5.15 There was a stark difference in opinion in support for this going forward for organisations already holding digital records, for whom the additional cost incurred in providing this to the SRWR through the Vault system was considered likely to be manageable (and could therefore be made mandatory in the short term). However, the task of creating digital records where they do not currently exist was considered likely to be an extremely onerous task, (identifying and surveying all assets then developing digitalised records), and one which would require a significant transition period.
- Cost - The main concern for roads authorities was the financial burden, particularly the time and resources required in a financial context of on-going budgetary and resourcing cuts and that consideration of this would need to be taken into account. Many roads authorities stressed the scale and the cost of this task, in terms of the quantity of apparatus for which there is no record at all and for which extensive site survey work would be required to form a complete record, and in terms of the cost of creating digital records, (ensuring asset data is captured, recorded, checked for accuracy and maintained), which was thought to be potentially prohibitive for some organisations. This was felt particularly strongly by the roads authorities who do not currently have a complete digital record of all their assets:
"It would be desirable. However, it should be noted that Dumfries and Galloway Council only has readily available records for apparatus in new roads built with construction consents. Gathering/making available other data would be an expensive and time consuming task and a risk managed approach to gathering data for apparatus likely to cause harm or damage may be more cost effective." (Dumfries and Galloway Council)
- Timescales - Because of the perceived scale of this task, respondents in both group one and two stated that, if this were to be made mandatory, there would need to be sufficient time allowed to comply i.e. a long term and phased lead in period, in order to minimise additional costs for both utilities and roads authorities. Respondents stated that implementation of this would need to be over a reasonable and agreeable timeframe and suggestions of between three to ten years were given as an indication of how long this process might take. Others did not state a length of time, but noted that consideration would have to be given of the time and financial costs that the collection or preparation of this vast amount of information would involve before any timescale is set:
"Extra time must be given with regards to the collating and surveying of the apparatus details that are, at present, not held by the roads authorities and utilities." (East Renfrewshire Council)
5.16 Several respondents also wrote that safeguards would need to be in place, with reference to drainage works. They stated that it would be unreasonable to expect third parties to be responsible for providing plans for apparatus that was placed by unknown third parties or for apparatus where the owner is no longer in business. They also stated that additional funding would be required by each roads authority if they were to be required to submit electronic plans of drainage networks.
5.17 Lastly, one respondent from group two had reserved support for the proposal because of concerns over confidentiality to protect sensitive apparatus. This respondent stated that they would want to work with the SRWR team to mitigate the risk to their business. Security concerns were also held by those disagreeing with this proposal.
5.18 Interestingly, those disagreeing with this proposal did agree in principle with the purpose of Vault and that it would be desirable/best practice 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 SRWR. However, they did not agree that this should be made mandatory. The main reasons given for disagreeing with this proposal were:
- Financial Costs - for roads authorities, this view was held particularly by those who do not currently hold all records of all their apparatus (particularly drainage) and so could not provide digitalised records without considerable financial resources. One group two respondent also raised the resource implications and timings for utilities of updating electronic records and stated that mandatory digital records could result in additional costs for the utility companies and these would most likely be passed on to the consumer.
- Security concerns - particularly around the implications of records ending up 'in the wrong hands':
"Further development of the SRWR would be required to ensure that there is adequate security of undertakers and road works authority data, that this is held separately from information that may be publicly available under S112 of NRSWA and that there are appropriate controls of access permissions to ensure that that data is only accessed by authorised persons under S138 of NRSWA. In this respect, a Code of Practice on Security and access to Plant Information would be required." (Scottish Water)
- Existing apparatus - several respondents noted that much of the apparatus has no known owner/is historic and no electronic records exist for the apparatus. Respondents felt that in the current financial climate it was not reasonable to expect a large scale asset management information gathering exercise to be carried out to provide this information. Indeed, it was felt that some apparatus types are a low health and safety risk in any case (such a verge drainage) and so there is no immediate need to provide details of those types of networks electronically.
Comparison of group responses
5.19 Responses to this question were more spread across groups than in other questions. Those in group two were more likely to raise concerns about security which was not something raised by respondents in group one. Respondents in group one were more likely to express concerns about the scale of the task and the cost and resource implications of making this mandatory. However, respondents from both groups one and two stated that if this were to be made mandatory, there would need to be sufficient time allowed to comply in order to minimise additional costs for utilities and roads authorities.
Section 109 Permissions
Q.16. Do you agree 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? Please provide the reasons for your view.
* Of the seven who did not respond to this question, four were from group three, two were from group one and one was from group two.
1. The vast majority of respondents agreed with this proposal. The main reasons for support were that it would reduce confusion and uncertainty, bring consistency and clarity, and be a more efficient way of undertaking works.
2. Many respondents stated that responsibilities for record keeping would need to be clarified.
3. Two of the three respondents who disagreed with this proposal, stated that responsibility for maintaining record keeping lies with the owner of the apparatus and not with the roads authorities.
5.20 The main reasons given for agreeing that Section 61 of the Roads (Scotland) Act 1984 be repealed and Section 109(2) of NRSWA revised were that:
- The two pieces of legislation duplicate each other and this would reduce confusion between the two sections of legislation.
- Section 109 is superior because it requires record keeping and gives clearer direction. This move would provide consistency and would help clarify and standardise approaches between different authorities, creating less room for errors or problems, and improving efficiency and performance.
- Section 109 gives road works authorities more protection and control over works being carried out by non-statutory utilities and allows for the inspection regime to be applied to these works.
- Respondents from group two stated that it is vital to have as much relevant data as possible on utility and authority apparatus held on a central register that the road works community has access to, irrespective of who has carried out the works:
"Record keeping is of vital importance to both utilities and road works authorities, in particular in respect of safety, effective planning and efficient undertaking of works." (NJUG)
"Section 109(2) of NRSWA should be revised to give clarity as to record keeping because it is clearly pointless in gathering and updating digital records unless there is an integrated and coherent manner." (Transform Scotland)
5.21 Eight of those in support of this proposal specifically mentioned responsibilities for record keeping in their response and, in particular, that responsibilities for record keeping would need to be clarified.
5.22 One respondent stated that their support for this proposal was only given if the permission does not place an administrative burden on roads authorities to record and advise other parties of this apparatus. This respondent added that an appropriate method of maintaining records of this apparatus must be in place prior to repealing Section 61 of the R(S)A.
5.23 Three respondents stated that NRSWA should be revised in respect to clarifying responsibilities for record keeping. Four respondents stated that while they support this proposal, responsibility for maintaining the records of apparatus should lie with the owner of the apparatus (the roads authority may not know whether apparatus is redundant or changed). Another respondent stated that the responsibility for record keeping should lie with the utility company in cases where they plan to adopt the apparatus on completion of the works. This respondent argued that in the majority of cases the utility company are consulted at works planning stage and are aware of what they will be adopting, but that roads authorities should be responsible for record keeping in other cases.
5.24 A number of further points were made by those agreeing that Section 61 of the Roads (Scotland) Act 1984 be repealed and Section 109(2) of NRSWA revised. These were as follows:
- Three respondents noted that Section 61 should be repealed with respect to new permissions but that it should remain in force for existing permissions.
- Two respondents stated that the issue regarding the ability to request a bond from developers under Section 109 would have to be resolved prior to Section 61 being repealed.
- Any revisions should take into account the need to record Sustainable Urban Drainage features such as swales, as well as more traditional apparatus (one respondent).
- Any part of Section 61 that defines or clarifies matters should be transferred to Section 109 (one respondent).
- It should be investigated to see if there are any other circumstances where Section 61 needs to be used and therefore not repealed but clarified as to its use apparatus (one respondent).
- It should also be a requirement to upload relevant information to Vault (one respondent).
5.25 Lastly, three respondents disagreed with this proposal. All three were from group one, and two of the respondents stated that responsibility for maintaining the records of apparatus and providing a record of the apparatus in a suitable digital format for uploading to the SRWR lies with the owner of the apparatus and not with the roads authorities. The other respondents stated that, where the plant is installed or maintained by a utility company, Section 61 of R(S)A should be used, and it is only where the plant remains the responsibility of the installer should Section 109 of NRSWA be used.
Comparison of group responses
5.26 All but one of the group two respondents agreed with this proposal, as did the vast majority of group one respondents. However, group one respondents were more likely to mention the issue of responsibilities for record keeping in their response, or to make additional comments.
Q.17. Do you agree that the designation of 'major road managers' be created? Please provide the reasons for your view.
* Of the 14 not responding to this question, eight were from group one, five were from group three and one was from group two.
1. The majority of respondents agreed with this proposal, the main reason being that it would assist in the co-ordination of works.
2. The main reason for disagreeing with this proposal was that there is not enough evidence to justify a change.
3. Eight respondents did not offer their agreement or disagreement but stated an opinion. These included; lack of relevance to rural areas and security concerns.
5.27 The main reasons for agreeing that the designation of 'major road managers' be created were:
- It would assist in the co-ordination of works.
- It would assist utility companies identify the owners of roads that are not trunk/local roads.
- It would assist in general traffic management with the public, as they would be required to adhere to the same regulations as others.
5.28 However, comments made by those supporting the proposal included:
- This should only relate to roads where a minimum number of works are undertaken.
- Where bodies manage significant roads infrastructure they should be subject to the same regulations of the SRWR.
- There should be a definition as to what it refers to e.g. minimum road length, number of works etc.
- All works and records should be on the SRWR.
- This should only apply to seaport, airport and bridge authorities.
5.29 The main reasons for opposing the proposal were that it is not required and there is not enough evidence to justify a change.
5.30 Alternative views expressed were that:
- It is not relevant to rural areas but seems sensible in theory.
- It would only benefit roads authorities and there may be potential security concerns:
"This would only benefit road works authorities who would not have to enter S109 permissions on to the Scottish Road Works Register. We would also be concerned that this would potentially provide access to our plant information where this would otherwise have been restricted." (Scottish Water)
Comparison of group responses
5.31 Support for this proposal was shared by respondents in groups one and two. Of the 26 respondents who supported the proposal to create the designation "major road managers", 15 were from group one and ten were from group two. Two respondents opposed the proposal, one from group one and the other from group four. A further eight respondents offered an alternative view on the proposal - six of those were from group one and two were from group two.
Summary of Review of Other Current and Proposed Legislation
5.32 The questions in this chapter showed agreement towards the proposals and greater consensus across the groups than the previous chapter. The majority of respondents agreed that the CoP for Safety and Street works and Road Works should become mandatory for roads authorities. This was supported as it would remove the anomaly of different prosecution levels and would introduce consistency in terms of the same safety standards. Those disagreeing with this proposal reported that roads authorities are obliged to comply with Chapter 8 of the Traffic Signs Manual which, they perceived, conflicts with the Code of Practice for Safety at Street Works. All of the group two respondents agreed with this, but there was a split of opinion amongst group one, with the majority in favour.
5.33 The vast majority of respondents agreed in principle with the proposal in Question 15 but many had caveats, perhaps because the question did not clearly state if the proposal was retrospective or prospective. All supporting this made clear the sheer scale of the task and argued that any introduction would be costly and would need to be introduced over a reasonable and agreed period of time. Security concerns were expressed by some of those disagreeing with the proposal.
5.34 Forty out of the forty three respondents answering question 16 on Section 109 permissions agreed with this proposal. This was considered to reduce confusion and uncertainty, bring consistency to roles and responsibilities and record keeping and be a more efficient way of undertaking works.
5.35 A large number of respondents did not answer the last question in this section on major road managers. The majority of those who did respond supported the proposal, agreeing that it would assist in co-ordination of works. Half of group one and over two thirds of group two supported the proposal. Overall, this section of the consultation saw more of a split within groups.