Roadworks

Purpose of the policy 

This document sets out the Council’s policy for managing performance of statutory undertakers who carry out street works activities in the borough. The Council’s approach to enforcement is governed by existing legislation and supporting statutory and non-statutory codes of practice and notes for guidance. 

Introduction 

Section 59 of the New Roads and Street Works Act 1991 places a legal duty on highway authorities to co-ordinate street and road works. Statutory undertakers under Section 60 have a duty to co-operate with highway authorities.

The Traffic Management Act 2004 requires highway authorities to manage their road networks effectively with a view of delivering the following two objectives:

• to secure the expeditious movement of traffic on their own network, and
• to facilitate the expeditious movement of traffic on road networks which another authority is the traffic authority. 

To achieve these objectives, it is vital that the Royal Borough of Kensington and Chelsea are aware of all activities that take place on their network and that the information informing them of these activities is both timely and accurate. In addition, statutory undertakers must ensure that their works are carried out safely and reinstated correctly to the prescribed national standards is to ensure the structure of the street is protected along with the integrity of the apparatus in the street. 

This document sets out the mechanisms the Council uses to deal with the different contraventions which impact on their duty to co-ordinate works and to address unsafe working practices. 

Non-compliant Reinstatements 

Statutory undertakers are responsible for reinstating the highway following completion of their works in accordance with the Specification for the Reinstatement of Openings in Highways. This is to ensure the structure of the street is protected along with the integrity of the apparatus in the street. 

The Council operates a robust inspection regime of completed statutory undertaker works. Where sub-standard work is identified in contravention to the Specification for the Reinstatement of Openings in Highways a non-compliance notification is raised in accordance with the Code of Practice for Inspections. Inspection fees are applied to each non-compliance which is identified, and remedial works are required to be carried out to rectify the non-compliance.

Operating a robust inspection regime allows the Council to closely monitor statutory undertakers’ performance. Regular performance data is shared with all companies and is discussed in detail at regular performance meetings.
In situations where statutory undertakers continually fail in their duty to comply with the Specification for the Reinstatement of Openings in the Highway the Council may also consider taking legal action. 

Non compliant in-progress work sites

All work which is carried out by statutory undertakers on the public highway must comply to the Safety at Street and Road Works Code of Practice. This document sets out the standards of signing, lighting, guarding and other safety measures that are required to ensure work sites are safe for both the workforce and users of the highway. 

The Council inspects a high proportion of in-progress work sites to ensure safety standards are being met. Where non-compliances are identified, notifications are issued to statutory undertakers to rectify the issues identified. 
Operating a robust in-progress inspection regime allows the Council to closely monitor statutory undertakers’ performance. Regular performance data is shared with all companies and is discussed in detail at regular performance meetings.

In situations where statutory undertakers fail in their duty to comply with the Safety at Street and Road Works Code of Practice may also consider taking legal action. 

Fixed Penalty Notices 

The Council operates a Fixed Penalty Notice regime in accordance with the Street Works (Fixed Penalty) (England Regulations) 2007 and the Traffic Management Permit Scheme Regulations 2007. 

The Council operate the regime in accordance with industry guidance issued by the Department of Transport and HAUC UK. 

Issuing a fixed penalty notice provides the opportunity for statutory undertakers to discharge their liability for prosecution if they pay the penalty within a prescribed period. If the fixed penalty notice is not paid within this period, the Council can prosecute the statutory undertaker for the original offence that was committed through the Magistrates Court. 

The Council can issue fixed penalty notices for several different offences. These include the following: 

• failure to comply with duties under S.54
• beginning to execute works in contravention of S.55
• failure to give notice in accordance with S.57
• failure to comply with requirements to give notice of completion of reinstatement
• failure to give a notice required by regulations under S.74 A (Charge determined by reference to duration of works)
• failure to give a notice required by regulations under S.74 (charge for occupation of the highway where works unreasonably delayed)
• Regulation 19 working without a permit
• Regulation 20 breaching permit conditions 

Noticing fixed penalty notices (offences 1-6) are issued for not submitting the correct notices and/or within the correct period. It is imperative for the Council to receive accurate and timely information to effectively manage their road network. Issuing fixed penalty notices aims to drive the correct behaviour of statutory undertakers. 

Permitting fixed penalty notices (offences 7&8) can be issued when statutory undertakers carry out work without a valid permit being issued and where conditions attached to the permit are breached. 

Statutory undertakers have the right to appeal any fixed penalty notices that may be issued to them. They should notify the nominated Council officer in writing stating the reasons for the dispute. All appeals will be considered on their own merits with reference to evidence that the Council has in its possession. If the nominated officer cannot resolve the dispute, it will be escalated to the Council’s Traffic Manager for consideration. 

Simple Cautions 

The Council will consider issuing simple cautions for poor working practices and/or non-compliance with the legislation as an alternative to prosecution. The decision on whether to issue a simple caution or proceed to prosecution will be based on the seriousness of the offence and/or the history of previous offences committed by the relevant statutory undertaker. Any previous warnings the Council may have issued by way of emails/letters etc. for poor working practices may also be taken into consideration.

Statutory undertakers are required to sign and accept the caution which will clearly outline the offences committed within 7 days of receipt of the document. Failure to do so may result in the Council proceeding to prosecution. The Council also reserve the right to recharge officer time as part of the caution for the time they have spent in dealing with the issue. 

Cautions are kept on record for a period of five years and may be used by the Council to influence a decision to instigate proceedings should the statutory undertaker infringe the law again in future. The caution may also be cited where statutory undertakers are found guilty of an offence by a Court of Law. 

Prosecution

The Council will take a robust approach to serious breaches of the legislation and will consider prosecuting statutory undertakers when they believe it is in the public interest to do so. 

Officers in the Network Management team will compile detailed witness statements and supporting evidence in support of any cases that are brought against statutory undertakers. These documents will then be submitted to the Councils legal team to review for a decision to be made to proceed to prosecution.

The Council may prosecute for the following offences: 

Section of NRSWA	Description of Offence
Section 51(2)	Offences under s. 51(1) (prohibition of authorised street works)
Section 54(5)	Failure to comply with duties under s.54 (advance notice of certain works, etc.)
Section 55(5)	Beginning to execute works in contravention of s. 55 (notice of starting date of works)
Section 56(3)	Execution of works in contravention of direction under s. 56 (directions as to timing of street works)
Section 57(4)	Failure to give notice in accordance with s. 57 (notice of emergency works)
Section 58(6)(a)	Carrying out works in contravention of a restriction imposed under s. 58 (restriction on works following substantial road works)
Section 60(3)	Failure to comply with duty under s. 60(1) (general duty of undertakers to co-operate)
Section 65(4)	Failure to comply with s. 65(1) or (2) (safety measures)
Section 65(6)	Interference with safety measures taken by undertaker
Section 66(2)	Failure to comply with s. 66(1) (duty to carry on and complete certain street works with all reasonably practicable dispatch)
Section 67(3)	Failure to comply with s.67(1), (2) or (2C) (duties relating to the use of qualified supervisors and operatives)
Section 68(2)	Failure by undertaker to afford street authority with reasonable facilities for ascertaining whether he is complying with his duties under Part 3
Section 69(2)	Failure to comply with s. 69(1) (requirements relating to street works likely to affect another person’s apparatus in the street)
Section 71(5)	Failure to comply with duties under s. 71 (prescribed requirements as to materials and workmanship and performance standards for reinstatements)
Section 79(4)	Failure to comply with duties under s. 79(1) to (3) (records of location of apparatus)
Section 80(4)	Failure to comply with s. 80(1) (duty to inform other undertaker of location of certain apparatus) or requirements imposed under s.80(2) (duties applicable where ownership of certain apparatus cannot be ascertained)
Section 83(3)	Failure by authority to comply with s. 83(2) (requirements relating to certain road works likely to affect apparatus in the street)
Section 92(2)	Failure to comply with a special requirement as to the displaying of lights imposed by a transport authority under s. 92(1)
Schedule 3, paragraph 5(3)	Failure to comply with obligation under paragraph 5 (obligations to give notice to street authority)
Schedule 4, paragraph 6	Execution of works in street with special engineering difficulties in contravention of paragraph 2 (requirement for agreed plan and section before executing works) or paragraph 3 (requirement to furnish plan and section after emergency works)
Schedule 4, paragraph 12(5)	Failure to execute works in such a street in accordance with a direction under paragraph 12
Schedule 4, paragraph 13(2)	Failure to comply with paragraph 13(1) (requirement to execute works in such a street in accordance with plan or agreed modification
Permit Scheme Regulations	Description of Offence
Section 19	Undertaking works without a permit
Section 20	Breach of permit condition

The above list is not exhaustive and there may be other offences relating to street works legislation, or other relevant legislation such as the Highway Act 1980, which the Council may choose to act under. 

Each case will be considered on its own merits. This will include reviewing information and evidence gained from the various functions the Council carry out as part of their duty under the Traffic Management Act and New Roads and Street Works Act. 

The Council will only consider prosecution if they believe an offence has been committed. The decision to prosecute will be based on one, or a combination of the following things:

• whether it is in the public's interest 
• whether the offender has a previous record of poor performance and compliance with NRSWA provisions, including previous warnings issued by email/letter or simple cautions etc. 
• whether the offender has discharged its liability by paying a fixed penalty notice relating to the offence 
• whether the offence was avoidable or if any disregard to legislation or regulations has taken place 
• whether the offence has caused or could cause a health and safety issue to members of the pubic or site operative 
• whether the offence has caused or could cause avoidable traffic disruption on the Council’s road network
• whether the offence has caused or could cause damage to the Councils highway assets 

The Council will ensure they engage with all statutory undertakers closely throughout the decision-making process and will endeavour to keep them informed of their intended action. 

The Council will keep a database of all prosecutions they undertake, including the relevant outcome and level of fines where appropriate. 

HAUC dispute resolution 

The HAUC dispute resolution process is designed to remove the need and cost of resorting to a legal process and to find an amicable resolution of any issues that highway authorities or statutory undertakers may have with one another. Both sides need to agree to this process.

Although the Council may consider using this process, they reserve the right to refer any issues they have identified straight to prosecution. 

Permit scheme evaluation report 

The information to be displayed under the permit scheme evaluation report is contained in the following document. This is a document that has been designed to meet accessibility requirements.