Safety measures for the carrying out of works in roads
Works in roads: safety measures: section 115
495.Section 115 of the Act makes a number of changes to the 1984 Act concerning the safety of road users while works that involve the road being excavated or obstructed in some way are carried out.
496.Section 60 of the 1984 Act imposes a variety of requirements on anyone who obstructs or digs up a road. This includes such things as ensuring that there are adequate lighting measures in place for oncoming traffic to see the work and having sufficient fencing and signage in place. As matters stand, these requirements do not apply to roads authorities themselves when carrying out works in roads.
497.Subsection (2) of section 115 of the Act therefore imposes this duty on roads authorities, making such authorities subject to the same safety requirements as other people who may obstruct or dig up roads. Where a roads authority fail to comply with this duty, rather than commit an offence, they breach a statutory duty and may be forced to comply with the requirements under section 45(b) of the Court of Session Act 1988.
498.Subsection (3) of section 115 inserts section 60A into the 1984 Act. This new provision enables the Scottish Ministers to issue or approve(19) codes of practice in respect of the requirements of section 60 of the 1984 Act. This means that the Scottish Ministers will be able to provide much more detail about the kind of actions that a person who is obstructing or digging up a road must take. It also provides for the consequences where a person complies (or fails to comply) with a code. Following on from the changes made to section 60 of the 1984 Act outlined above, a code of practice will apply to anyone obstructing or excavating a road, including the roads authority for that road.
499.The power to issue or approve ‘codes’ (as opposed to a code) envisages that the Scottish Ministers may make or approve different codes and so provides a measure of flexibility. This could enable codes in respect of particular requirements (such as one focusing on lighting) or a code covering multiple aspects.
500.The new provision is similar to section 124 of the 1991 Act. That provision enables the Scottish Ministers to issue or approve codes of practice for undertakers in respect of certain kinds of road works. It is expected that the codes issued or approved under section 60A of the 1984 Act will follow a similar approach and, indeed, it is possible that a combined code may be issued or approved.
501.Provided that a person or a roads authority complies with the code of practice, the person will be treated as complying with the requirements of section 60(1) or, in the case of a roads authority, section 60(3A) of the 1984 Act. The significance of this is that it means that a person carrying out works can have confidence that if they meet the standards of the code then they will not be liable to prosecution under section 60(3) for failing to fulfil their duties (and similarly that a roads authority who complies will not face any enforcement proceedings). The converse is also true. If a person (or authority) fails to comply with the code, that will be evidence for the purposes of a prosecution or enforcement proceedings for a failure to meet the requirements of section 60.
502.Subsection (4) of section 115 increases the penalty for the offences in section 60 of the 1984 Act from level 3 to level 5 on the standard scale. At present, a level 3 fine is £1,000 and a level 5 fine is £5,000. This brings the penalties into line with those for similar offences under section 124 of the 1991 Act.
Qualifications for supervisors and operatives: section 116
503.Section 126 of the 1991 Act already requires the majority of road works(20) which involve breaking up the road (or any drains, sewers or tunnels under it) or tunnelling or boring under the road to be supervised by a suitably qualified person, and also requires a suitably qualified trained operative to be present on site whenever this kind of work is taking place. There is nothing to prevent a suitably qualified person from being both a supervisor and a trained operative (assuming that they are in a position to discharge both functions adequately).
504.Section 116 of the Act, which inserts section 61B into the 1984 Act, extends these requirements to when other types of ‘works in a road’ are taking place, including improvements to the road carried out by the roads authority which involve excavation of a road, and any non-excavation works which require obstructions to be placed on a road. Where excavation is carried out, the duty extends to the subsequent reinstatement of the road and associated activities, such as replacing road markings.
505.In order to ensure that the supervisory obligations are being complied with, the roads authority may serve a notice on the person responsible for the works which requires the person to provide the name of the supervisor of the works (and any or all previous supervisors). They may also require the name of any trained operative on the site at a particular time or the names of all the trained operatives who have worked the site. In addition, the notice can require the production of evidence as to the supervisor’s or operative’s credentials.
506.Notices may only be served either during the works or within such a period after the works have finished as the Scottish Ministers may set out in regulations. A roads authority may serve more than one notice in respect of the same works.
507.Failure to comply with the requirements of a notice is a criminal offence carrying a penalty of a fine of up to level 5 fine on the standard scale (currently £5,000) (see inserted section 61B(7) and (8)).
508.The Commissioner may also serve a notice in respect of any works in a road being carried out requiring the roads authority to provide details of the individuals who are (or have been) the supervisor and trained operatives for the works, including evidence of their credentials. This covers not only works in a road being carried out by the roads authority, but works by other persons too. Failure of the roads authority to comply with this notice may be dealt with through section 45(b) of the Court of Session Act 1988 or under the compliance notice regime being introduced under section 111 of the Act.
509.Inserted section 61B(9) provides the Scottish Ministers with the power to make regulations to prescribe the qualifications required of the supervisors and trained operatives as well as a range of other related matters. Importantly, these regulations may provide for exceptions when the supervisor and trained operative duties will not apply and circumstances in which more than one trained operative must be on site.
510.Subsection (2) of section 116 of the Act amends section 126 of the 1991 Act by adding three new subsections.
511.New subsections (1ZA) and (2ZA) confirm that road works being executed by undertakers must be supervised until the point that the road is reinstated, and that a trained operative must be on site at all times that works are ongoing (including the road’s reinstatement). This is already the case (see the broad definition of road works in section 107 of the 1991 Act). However, the new subsections are being added to avoid the risk of any confusion being caused by an explicit reference to reinstatement in the inserted section 61B.
512.New subsection (2ZB) adds to the regulation-making powers of section 126 of the 1991 Act to enable the Scottish Ministers to specify circumstances in which more than one trained operative needs to be on site (and how many trained operatives there should be). The regulations are subject to the negative procedure.(21)
As is currently the case for other codes of practice under the 1991 Act, codes are likely to be prepared initially by the Roads Authorities and Utilities Committee for Scotland and passed to the Scottish Ministers for approval through the Scottish Road Works Commissioner.
In this context, ‘road works’ has the technical meaning given in section 107(3) of the 1991 Act (see paragraph 434). The most common example is where utility companies and similar organisations carry out work to install, inspect or repair their pipes, cables or other apparatus under a road.
See section 28 of the Interpretation and Legislative Reform (Scotland) Act for a description of what constitutes negative procedure.
