8.1 The consultation included 33 separate questions across six different policy areas, these being:
- The road network as an asset;
- Time taken to complete works;
- Compliance and enforcement;
- Review of other current and proposed legislation;
- Co-ordination of works; and
- Issues not covered elsewhere in the consultation.
8.2 It is important to note that roads authorities and related bodies had a greater presence in the response pool overall, representing nearly two thirds (60%) of all responses received. This may, therefore, have influenced some of the findings from the work. That being said, questions were well answered overall and several suggestions for changes to existing arrangements, as well as views on potential new policies/practices were put forward.
The road network as an asset
8.3 Responses to the consultation reflect people's recognition of the vital role of roads in Scotland for economic prosperity and quality of life for its people. In the interests of ensuring quality and longevity of roads, there was general support among roads authorities for the introduction of contribution costs from utility companies to the costs of making good the long term damage to roads. A scheme which could be introduced gradually and include incentives for utility companies was seen as the way forward. Utility companies, on the other hand, were strongly opposed to such a scheme, citing cost burdens on customers and questioning the evidence base for the proposition.
8.4 In the interests of minimising disruption, and again to maintain the quality of the roads as an asset, there was widespread support for changing the period of restriction after re-surfacing to three years and adopting this into legislation (with some exemptions). Overall, there was agreement that the voluntary three year restriction period worked well, but that adoption into legislation would remove the current inconsistency between the legislation and the Code of Practice.
8.5 Increasing the number of chargeable inspections of utility companies' works was perceived among roads authorities as potentially improving the quality of reinstatements, but there is resistance to any such change among utility companies. Similarly, divergence in views around changes in inspection fees may be difficult to reconcile, although it was agreed that poorly performing utility companies should be penalised so as not to cause reputation damage to the utilities community as a whole.
8.6 Among roads authorities, there was a perception that increased guarantee periods would also drive up standards and lead to better quality and more durable reinstatements. The main objection to the proposals set out in the consultation, however, was a perceived lack of evidence to demonstrate that reinstatements that have not failed after two or three years would go on to fail in the longer term. This is perhaps another area where further research is required to ensure support from utility companies.
Time taken to complete works
8.7 In the interests of ensuring the timely completion of works, a range of possible initiatives for consideration were set out in the consultation.
8.8 There was very limited support for the introduction of a charge for occupation where work is unreasonably prolonged, and the only support that was given (mostly from roads authorities) was caveated. Most respondents viewed that charging was not necessary since most delays were genuine and it would be difficult to judge otherwise if delays were not legitimate. The introduction of charging was also seen as potentially being administratively burdensome for both roads authorities and utility companies alike.
8.9 Similarly, the introduction of permit schemes was seen as unnecessary since respondents considered that the current arrangements for coordinating works using the Scottish Road Works Register, along with the existing provisions available to roads authorities, work well. The main arguments offered against the introduction of permit schemes were likely high administration costs, bureaucracy and the potential for costs to be passed on to consumers.
8.10 Support for lane rental schemes was, again, very limited. The majority of respondents viewed lane rental schemes as unnecessary and lacking in evidence to support them. Further research and evidence was seen as being necessary to demonstrate their relative costs/benefits. Overall, therefore, while respondents seemed committed to ensuring that works are completed within reasonable periods, the proposals set out in the consultation gained, at best, limited support.
Compliance and enforcement
8.11 Both roads authorities and utility companies have clearly defined duties to fulfil in the interest of ensuring efficient and effective planning and delivery of works in roads. In reviewing the measures that are in place to ensure compliance with these duties and to enforce or penalise failures to comply, the consultation posed several questions which attracted quite disparate responses from different members of the road works community.
8.12 In particular, there was a clear split in views expressed by roads authorities and utility companies with regard to the extension of existing summary offences dischargeable by fixed penalty notices (FPNs). The majority of roads authority respondents felt that the current system was not working and an extension of existing summary offences would lead to better quality reinstatements, fewer unauthorised road works and improved performance in signing, lighting and guarding. In contrast, utility companies and their affiliates considered the proposed changes were unnecessary, stating that there were already suitable measures in place to address non-compliance.
8.13 Similarly, many roads authorities expressed that they were currently unable to manage utility company non-compliance within existing legislation and so proposals to introduce new offences dischargeable by fixed penalties were seen as potentially leading to the required improvement in behaviour (something not endorsed by utility companies). Comments were made that the current FPN amounts may be too low and should be increased so as to be an effective deterrent and there was general support (among roads authorities) for an increase in FPN amounts which, at a minimum, would be in line with inflation.
8.14 Those opposing any new offences and any increase in fines (mainly utility companies) suggested that they were not justified or needed, again stating that there was a lack of evidence to inform any such change as well as suggesting that the current penalty level was already acting as an effective deterrent to committing offences.
8.15 On the Commissioner penalty level, all respondents in group two opposed an increase in the maximum level of fine. This contrasted with mixed support among roads authorities. It was argued that the reputational damage to utility companies of having any penalty imposed was more likely to have an impact on compliance than increasing the level of penalty itself.
8.16 The one area of compliance where there was agreement between both roads authorities and utility companies was with regard to definitions of 'co-operate' and 'co-ordinate'. There was considerable opposition across the board towards revising legislation to state that penalties could be imposed for failure to comply 'such practice as appears by the Scottish Road Works Commissioner to be desirable'. Many respondents stated that the definition needed to be clearer so as not to be open to misinterpretation. Those who disagreed with all parts of the proposed revised definition stated that the existing definitions of 'co-operate' and 'co-ordinate', if used effectively, were already fit for purpose.
Review of other current and proposed legislation
8.17 Feedback on the various proposals for legislation which have previously been discussed by the Commissioner and the Policy Development Group was insightful, with many comments made in a supportive tone.
8.18 The majority of respondents agreed that the Code of Practice for Safety at Street Works and Road Works should become mandatory for roads authorities. The main reasons for 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. 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 was more suited to works of an isolated excavation nature, and thus not detailed enough to cover the full range of activities carried out by roads authorities.
8.19 The majority of respondents also agreed, in principle, that it should be made mandatory for all utility companies and roads authorities to hold digital apparatus records and to provide such digital records for use on the SRWR. That being said, most were aware of the significant scale of this exercise and the associated resource implications which were likely to result, particularly 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 information ending up 'in the wrong hands'.
8.20 Again, the vast majority of respondents agreed with proposals 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 (i.e. Section 109 permissions). Similarly, the majority of respondents agreed with proposals to create a new legal entity of 'major road manager' in the interests of assisting in the co-ordination of works. The only resistance to this proposal came from those who queried the robustness of evidence indicating the need for such a role. Other views included the perception that road managers would lack relevance in rural areas as well as some concerns around data security/access to information which would ordinarily be restricted.
Co-ordination of works
8.21 Co-ordination is one of the most important elements when undertaking road works, and there has been considerable previous work in this area. This section of the consultation produced some of the more lengthy and detailed responses, as well as highlighting some clear areas of divergence, again, between roads authorities and utility companies.
8.22 The majority of respondents thought that the three month advance notice period was necessary for good co-ordination, and provides the necessary flexibility required, and views were expressed that reducing this three month period would have negative consequences, in terms of co-ordination and in terms of the message it would send to utility companies. That being said, there was also some support for a reduction in the three month period, since it currently restricts flexibility, is excessive in rural areas and can have negative consequences in terms of increasing the number of early starts.
8.23 The majority of respondents from all groups thought that the requirement to provide advance notice for works on non-traffic sensitive roads should be maintained (i.e. early start procedure). Several respondents stated that they would recommend a return to one month of notice of major works on non-traffic sensitive roads. This was thought to still allow local co-ordination without being overly burdensome on utilities and roads authorities.
8.24 There was some confusion around the consultation question which asked if noon the following day should be made a statutory requirement for commencing urgent works, and few answered the question directly, i.e. should existing arrangements for commencing urgent works be given a statutory footing. Overall, responses were not supportive of any change to existing requirements, the main reasons being that the change would not fix the problem of misuse of the urgent works classification and that urgent works often cannot be started immediately in any case.
8.25 Just under half of respondents (24) expressed outright support for the introduction of legislation to ensure that roads authorities are required to provide the same information as utilities companies on the SRWR. The main reasons for supporting the change to roads authority noticing obligations were: ensuring that the fullest and most accurate information is available to the Commissioner; facilitating planning programming and co-ordination of works to the fullest; and achieving parity and equity between both roads authorities and utility companies, i.e. all abiding by the same rules. The main downside, it was perceived, was that it may be bureaucratically and administratively burdensome for roads authorities, and that the time required to place notices for all works may outweigh the benefits of doing so.
8.26 There was considerable support for the introduction of regulations to allow roads authorities flexibility around placing notices for minor works involving no or minimal excavation on non-traffic sensitive roads. It was felt that this would formalise practice that is already widely used. There was also unanimous support for regulations to be introduced to require roads authorities and utility companies to enter actual start notices on to the Scottish Road Works Register. In conclusion, responses were mixed with regard to the current requirement for actual start notices to be lodged by noon the following day for all works in roads, including traffic sensitive roads. Respondents tended either to support the current requirements, or suggested that notices could/should be lodged sooner, where possible. The consensus was for the most up-to-date information to be available.
8.27 The majority of respondents also felt that the current requirement for works closed notices to be lodged by the end of the next working day was a reasonable period. Many of the reasons cited in support of the current requirement were similar to those offered for start notices (i.e. existing arrangements are perceived to work well and are realistic and achievable for all). The consensus was that works closed notices are less critical than starts, because they effectively reduce potential delays and problems rather than increasing them.
8.28 Also on co-ordination of works, the question around potentially reducing validity periods produced some relatively lengthy and detailed responses compared to other sections of the consultation. Most people were in favour of leaving the validity periods as they are at present, the main reason being that they afford flexibility in the case of unanticipated delays to start of works. The main reasons given in support of the reduction of the validity period to a maximum of two days were to assist in co-ordination of works with more accuracy in relation to actual start dates. Respondents generally also supported the idea that utilities and roads works authorities should be treated the same with regards to validity periods.
8.29 There was a clear split in responses to the consultation question around duration of works. Most of those supporting statutory powers to impose maximum durations for works on utility companies were roads authorities, although those against the proposals were split evenly between groups. Strong views were expressed by utility companies that only they possessed the requisite technical skills, knowledge and experience to be able to appropriately gauge durations required for works. Several respondents felt that New Roads and Street Works Act (NRSWA) Section 115 already adequately covered this issue. Therefore, it was proposed that greater penalties should exist for ignoring NRSWA Section 115 directions, rather than allowing roads authorities to dictate the duration of utilities' works.
8.30 The question on embargoes also provided a clear split in responses with none of the utility companies and related organisations who responded supporting the introduction of statutory powers to impose embargoes on works for reasons other than traffic disruption. Those who supported the introduction of statutory powers in this regard (mostly roads authorities) felt that it would formalise a voluntary system that was already working well. Most of those against the introduction of statutory powers in this regard also felt that the present voluntary system was working well and so did not need a statutory footing. Finally, on co-ordination of works, more than half of respondents supported the definition of 'working day' given in the consultation document on the basis that it was clear, relevant and locally appropriate.
Issues not covered elsewhere in the consultation
8.31 A large number of disparate comments were made in response to the final three consultation questions, with considerable feedback from both roads authorities and utility companies. Most of the closing comments made by respondents reflected the views already set out earlier in the consultation around the consequences of sharing costs for making good roads, and sharing responsibilities for ensuring that works are closed timeously and in good order. The need for parity between the two groups in terms of accountability was again stressed.
8.32 Several ideas for innovations were put forward and comments reflect a general commitment to learn from best practice wherever possible. It seems it was not possible within the scope of the current consultation for respondents to provide accurate cost implication feedback from the proposals, but there was consensus that careful planning would be required, including detailed cost analysis, before any of the consultation proposals were implemented.
8.33 The consultation produced an encouraging response from the Scottish road works community and others. Responses provided a clear steer on those proposals that would and would not receive support from the community, and have shown the main areas where there is divergence in opinion between roads authorities and utility companies. Several suggestions for changes to existing guidelines and policy were put forward to improve the planning and co-ordination of works, and there seems a general commitment between all parties to achieving the safe, effective and efficient completion of works that minimise disruption and costs to road users and consumers.
8.34 Across several areas of the consultation, it seems that utility companies in particular would like to see the presentation of more research evidence before supporting the introduction of new proposals or legislation. Indeed, the consultation has been useful in highlighting areas where respondents felt that further research may be needed, not least the need for full cost-benefit analyses for several of the proposals put forward.
8.35 What is clear from the consultation responses is that there is already a great deal of good working practice and strong relationships in the Scottish road works community and most are keen to support parity between roads authorities and utility companies, and to be transparent in their operation.
8.36 In conclusion, continued regular and ongoing communication between roads authorities, utility companies and the Commissioner to share and encourage evidence based best practice seems to be key to the future successful planning and delivery of works on Scottish roads.