Transport (Scotland) Act 2019 Explanatory Notes

Reinstatement of roads following works

Reinstatement quality plans: section 118Background

519.Section 129 of the 1991 Act contains the general requirement on an undertaker carrying out road works to reinstate the road. In addition, there is a range of other provision relating to the timing of the reinstatement, the speed at which it should be completed, the notice of completion that is required, etc. Failure to comply with the requirements of section 129 is an offence.

520.Section 130 of the 1991 Act imposes duties on undertakers to comply with requirements as to the materials used to reinstate a road after completing road works and the performance standards to be observed for the reinstatement. These requirements are prescribed in detail by regulations,(22) which, in turn, hook into a code of practice approved by the Scottish Ministers under section 130(4). Failure to comply with a duty under section 130 is also an offence.

521.Road works authorities have an inspection power under section 131(1) of the 1991 Act to allow them to determine whether an undertaker’s duties in relation to reinstatements have been met. Authorities may issue notices requiring undertakers to take remedial action in cases where those undertakers have failed to comply with any of their Part IV duties in relation to reinstatement. The authorities may also in certain circumstances carry out the remedial works themselves and recover the costs of doing so from the undertakers.

Overview of section 118 of the Act

522.In section 118, the Act adds to the suite of duties by inserting new sections 130A to 130C into the 1991 Act.

523.Inserted section 130A requires anyone (other than a roads authority) who is proposing to carry out works that will involve reinstatement of the road to enter a plan detailing the intended approach to reinstating the road after the work is complete in the SRWR. This plan will cover reinstatement following most types of work involving a road, from road works to install or repair utilities through to improvement works. A plan may only be entered in the SRWR after it has been approved by the Commissioner. In the case of a roads authority, however, section 130B(2) provides that the obligation to enter an approved plan in the SRWR arises only if the Commissioner requires it.

524.Both inserted section 130A and 130B are supplemented by inserted section 130C, which allows the Scottish Ministers to issue or approve codes of practice for these plans and to make regulations about the form and content of the plans and any associated procedural matters they consider necessary. As with any regulations made under Part IV of the 1991 Act, prior consultation on the making of any such code will be required by virtue of section 163A of the 1991 Act.

Inserted section 130A

525.Generally, it is open to the person who is proposing the works to prepare either a plan which is specific to reinstating the road after the works in question or to put in place a plan covering their operations involving reinstatement of the road in a variety of situations which can cover multiple works. It would also be possible to have a combination of approaches in certain cases. Where the proposer of the works intends to rely on a general plan in relation to a given piece of work, a notice must be entered into the SRWR to confirm that there is a plan in place and enable the Commissioner to identify that plan.

526.The Commissioner may, in certain circumstances, require a person proposing to do works to prepare a new plan for approval and entry into the SRWR. This might, for example, be required if there has been a change in regulatory standards since the plan was approved or a change in what constitutes good practice for the type of work in question. The Scottish Ministers may, in regulations made under section 130C (on which, more below) set out specific circumstances in which the Commissioner must do this. Otherwise it will be at the Commissioner’s discretion.

527.Inserted section 130A(4) provides that, to approve a plan, the Commissioner must be satisfied that the plan demonstrates the person is competent to safely and effectively execute the reinstatement of the road, and has in place quality control procedures sufficient to ensure that the reinstatement of the road is to a sufficient standard and in compliance with the statutory obligations applicable to the works. If the Commissioner is not so satisfied, the plan cannot be entered in the register and the works cannot proceed. Failure to enter an approved plan on the SRWR when required to do so is an offence, subject to a fine not exceeding level 5 on the standard scale.

528.It will generally be for the Commissioner to set out the process that is to be followed for obtaining approval of a plan. Given the detailed nature of the material and the specific requirements of different types of work, there may be a degree of discussion and refinement required. However, to assist with the process, under new section 130C, the Scottish Ministers can issue or approve codes of practice setting out practical guidance for the content of plans and are also given power to make regulations on a range of matters to do with reinstatement plans, including information that the plans must contain. This will therefore influence how the Commissioner approaches the task of approving plans.

Inserted section 130B

529.New section 130B of the 1991 Act deals with the situation where the works in question are to be carried out by a roads authority. As noted in the overview, the obligation here is that the roads authority are under a duty to enter an approved reinstatement plan in the SRWR only when one has been requested by the Commissioner in relation to specific proposed works. It is envisaged that this kind of request may arise in relation to complicated works or where there has previously been an issue about the quality of reinstatement in relation to particular works.

530.Subsection (5), however, confirms that it is open to a roads authority to ask for a plan to be approved for entry into the SRWR in circumstances where they think it is appropriate to do so.

531.The matters that the Commissioner must be satisfied about before approving the plan are similar to those for other persons executing works in the road under section 130A. The differences reflect the status of a roads authority as having general responsibility for the state of the roads – ultimately if the reinstatement isn’t up to standard, it will fall to the roads authority to address any defects. Further, the question of whether a roads authority is generally competent to execute reinstatement works should not arise in the same way as it may for an undertaker. However, it is possible in given situations that the authority may not have put in place appropriate arrangements to ensure the safety and effectiveness of the reinstatement works and the test in subsection 130B(3)(a) therefore reflects that.

Inserted section 130C

532.This section confers two powers on the Scottish Ministers, both of which are designed to bolster the operation of the preceding sections.

533.Subsection (1) provides the Scottish Ministers with the ability to issue or approve(23) codes of practice relating to the new duties about reinstatement plans imposed by sections 130A and 130B (and any regulations made under section 130C). The code (or codes) will give guidance to anyone who needs to prepare a reinstatement plan as to how best to comply with the duties.

534.Subsection (2) gives power to the Scottish Ministers to make regulations about reinstatement plans. Subsection (2) is general in its terms while subsection (3) elaborates on the power in subsection (2) and provides a non-exhaustive list of the types of provision that are expected to be made. As set out in the subsection, it includes regulations about the form and content of reinstatement plans and the notices that can be given under section 130A(2)(b)(ii), regulations about the procedure and process, and the ability of Ministers to require the review of existing plans in certain circumstances. This latter ability is primarily aimed at ensuring those general plans which deal with reinstatement works in a range of situations are kept up to date and in line with current standards.

535.Of particular note is that the regulations under subsection (2) may make provision about the consequences of complying or failing to comply with a code of practice issued or approved under the section. As with other codes of practice under the 1991 Act, it is expected that the regulations will provide for a person who complies with the code to be deemed to have met the obligations imposed under section 130A or 130B (at least in so far as they comply) whereas a failure to comply with the code will be evidence of a failure to comply with the duties under those sections.

536.Subsections (4) and (5) make it clear that the regulations may create criminal offences with a maximum penalty of a fine on level 5 of the standard scale (currently £5,000). For example, a failure to comply with any requirement of periodic review of plans imposed under the regulations is likely to be a criminal offence. Regulations under subsection (2) which create criminal offences are subject to the affirmative procedure in accordance with subsection (6).

22

The Road Works (Reinstatement) (Scotland) Regulations 1992 (SI 1992/1674).

23

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.

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