Strategic Consultation on Works on Scottish Roads - April 2013

3. COMPLIANCE AND ENFORCEMENT

Introduction

3.1 The NRSWA places duties on both roads authorities and utility companies on a wide range of issues relating to how works in roads are managed and undertaken. Failure by utility companies to comply with some of these duties is an offence and roads authorities can seek prosecution which can lead to fines. In some cases roads authorities can issue fixed penalties which discharge the liabilities for the offences. Furthermore, the Commissioner can also impose penalties on roads authorities and utility companies which fail to comply with their duties under sections 118 and 119 of the NRSWA.

3.2 Given that Commissioner penalties and roads authority fixed penalties have been in place since 2007 and 2008 respectively, this is an appropriate time to review how they have been operated and to consider whether or not extending the scope of the provisions or revising them might act a driver to further improve performance.

Offences under NRSWA

3.3 There are a number of situations within the NRSWA where a utility company which fails to meet its obligations commits an offence and on summary conviction can be fined up to £5,000. The main areas where offences can be committed relate to:

  • the safety of the works;
  • the timing of placing notices on the SRWR;
  • works taking longer than necessary to complete; and
  • reinstatements not meeting the specification.

3.4 Should a roads authority decide to seek a prosecution, it requires to collect evidence to present to a Procurator Fiscal who would then have to agree to proceed with a prosecution. This can be a time consuming and costly process for a roads authority which, if the case is successful, may recover its costs. Although offences are being committed, the first Commissioner was not aware of any prosecutions having been sought or undertaken in Scotland since he took up post in July 2007.

3.5 Discussions with roads authorities suggest that in a bid to retain good relationships with the utility companies, they explore all other avenues and are reluctant to pursue court action. Going to court is perceived as being a disproportionate response and very much as being a sledgehammer to crack a nut. Now that the Commissioner is in place there is also a perception that the role of enforcement is his responsibility alone.

3.6 Some roads authorities have suggested that some of these offences could perhaps become fixed penalty notice offences, with the Commissioner settling any disputes between the parties and with a final appeal to a Sheriff. There would have to be clear guidelines produced as to what would be deemed to constitute an offence. The clear advantage would be that these specific local issues would be dealt with at a local level, that the process would be straightforward, they would not take up valuable court time, would not incur legal expenses and that the issues could be dealt with quickly.

3.7 The use of fixed penalty notices for offences relating to the timing of the placing of information on to the SRWR and reinstatements not being made permanent within 6 months have been in place since 1 April 2008 and the process for their use in now well understood within the road works community. The extension of fixed penalties to discharge other offences directly related to work being undertaken on the road should therefore be relatively simple to introduce.

3.8 The levels of the current maximum fines for each offence are given at Schedule 3 of the Transport (Scotland) Act 2005. The current values of fine levels are level 4 - £2,500 and level 5 - £5,000.

3.9 The following have been suggested as areas where roads authorities should be able to issue fixed penalty notices for current summary offences under the NRSWA:

  • Section 110 -prohibition of unauthorised road works ;
  • Section 124 - signing, lighting and guarding failure;
  • Section 130 - not reinstating excavations in accordance with the specification.

Views Sought

09 Should there be an extension of existing summary offences dischargeable by fixed penalty notice? Please can you explain your answer?

New Offences Dischargeable by Fixed Penalties

3.10 With a view to improving road works management some roads authorities have suggested that the legislation should be strengthened by the introduction of the following as new offences under NRSWA. These could be discharged by the giving of a fixed penalty:

  • misclassification of works as urgent or emergency to circumvent longer planned work notice periods;
  • not noticing "actual start" notices by the due time (should actual start notices become a legal requirement);
  • failure to rectify a defective reinstatement within a reasonable period; and,
  • failure to rectify defective utility company apparatus within a reasonable timescale.

Views Sought

10 Should we create the proposed new summary offences with a view to introducing fixed penalty notices? Please state the reasons for your view.

Fixed Penalty Amounts

3.11 The current fixed penalty amount of £120 with a discounted amount of £80 for early payment came into force on 1 October 2008. These are the amounts for offences under both the NRSWA and the Roads (Scotland) Act 1984. In some roads authority areas the cost of the fixed penalty can be less than the cost of obtaining the appropriate permit or consent e.g. the placing of a skip or scaffolding on a road. In some council areas a culture of non-compliance has developed.

3.12 Given that the current amounts of fixed penalty have been in place for almost 4 years, it is appropriate that the levels be reviewed to determine if they continue to drive the correct behaviour.

3.13 The Commissioner considers that fixed penalty notices continue to be an appropriate mechanism to encourage the noticing of works to carried out to a higher standard and that they have contributed to the improved standard we now see. The Commissioner considers that the original values were set at an appropriate level, but that to maintain their effectiveness they should be increased in line with inflation over the period.

3.14 Annex D provides details of the numbers of fixed penalty notices issued to utility companies over the last 3 years for offences under the NRSWA together with an indication of the likely revenues collected by roads authorities. Also shown are details of the numbers of noticing offences which have been recorded on the SRWR over the same period.

Views Sought

11 Do you agree that the current fixed penalty notice amounts should be increased in line with inflation e.g. consumer price index?

Commissioner Penalty Limit

3.15 The current level of penalty which the Commissioner can impose on roads authorities and utility companies who fail to comply with their duties is £50,000. This was established on 1 October 2007. Whilst this is a significant sum of money, for organisations with large turnovers this may not be enough to encourage them to continue to improve their performance in complying with their statutory duties and the value should be increased.

3.16 The Commissioner issued his first penalties in January 2012. The highest penalty was for £38,500. Given the size and turnover of some of the utility companies operating in Scotland and the value of penalties which can levied by other regulators in the utility sector, the Commissioner recommends that the maximum level of penalty be increased to £200,000. Annex F provides details as to the penalties which can be imposed by other regulatory monitoring bodies.

Views Sought

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?

Definitions of Co-operate and Co-ordinate

3.17 The Commissioner can only impose penalties on roads authorities which fail to carry out their duty to co-ordinate works in the road, under section 118 of the NRSWA and utility companies which fail to fulfil their duty to co-operate in this process, under section 119 of the NRSWA. This could lead to an interpretation that focuses very narrowly on the definitions of the words co-ordinate and co-operate. The first Commissioner was of the view that the policy intent underpinning the creation of his role under the Transport (Scotland) Act 2005 was to have the power to penalise utility companies and roads authorities which were failing to suitably undertake any of their duties under the NRSWA.

3.18 The Commissioner therefore recommends that for clarity, the legislation should 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. "

3.19 This would provide the Commissioner and the roads authorities and utility companies with much greater certainty and clarity as to the extent of Commissioner powers and the scope for issuing penalties in appropriate circumstances across a wide range of issues.

Views Sought

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.