Consultation questions

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As mentioned previously, this consultation builds on the Department's consultation document entitled: Keeping Traffic Moving: Follow-up Consultation on Street Works. As such we are seeking to retain consistency wherever appropriate between Permits and NRSWA Notices in relation to matters such as:

  • Road Categorisation
  • Activity/Works Categorisation
  • Streets subject to special controls
  • National Street Gazetteer (NSG)/Associated Street Data (ASD)
  • Time periods relating to Notices/Permits
  • Early starts procedure
  • Error correction

It should be noted that NRSWA and regulations made under it continue to apply in areas where permit schemes are in operation, subject to the modifications which are provided for in Part 8 of the attached draft Regulations.

Please note that while below there are specific questions we welcome comments on other aspects of the draft Regulations, Statutory Guidance and Code of Practice, especially on the practicality of applying the Statutory Guidance and following the legislative framework of the TMA and the draft Regulations. Issues raised in the 2005 consultation responses have been considered when preparing the draft Regulations, Statutory Guidance and Code of Practice. You therefore need not repeat comments submitted to the earlier consultation, though you are of course free to do so if you wish. A report summarising the responses can be found at http://www.dft.gov.uk/consultations/open/tma/trafficmanagementactparts34a2005

Questions

1. The draft Regulations and Statutory Guidance and Chapter 7 of the draft Code of Practice explain the application process and requirements to be met by a local highway authority applying to run a Permit Scheme.

  1. Do you agree with the requirements placed on local highway authorities in the Regulations? If you answered no, what should the requirements be?
  2. Do you think that the Statutory Guidance we have produced for local authorities is clear and comprehensive? If you answered no, how could we improve it?
  3. Do you find Chapter 7 of the Code of Practice a useful overall guide?

2. In the case of permits for immediate works the draft Statutory Guidance provides that permit schemes should require that an application for a permit is made to the Permit Authority within two hours of work commencing. It is envisaged that such an application should include an accurate location of the works to enable the authority to carry out any co-ordination that may be necessary.

A question has been raised concerning how best to manage situations where it may not be possible to identify immediately the exact location of the problem. For example a gas leak could legitimately involve a number of different excavations in order to locate the source of the leak.

Currently the draft Statutory Guidance envisages that a permit should only be issued in relation to a particular street and that an accurate location is required. Section 9.14.3 states that: 'Even if they (the promoter) find that the location in which they have started digging is not where the leak (or other emergency) actually is, since they have broken open the street, a permit is required. If the location has to be changed later, a permit variation would need to be sought.'

It has been proposed that in relation to immediate works of this nature, a single permit should instead authorise all of the excavations made with a view to tackling the emergency, provided that all the following conditions are met

  • All excavations are within 100 metres of the original location;
  • The works remain only within the street in the original permit and, if there is more than one Unique Street Reference Number (USRN) for that street, within the same USRN;
  • The works are not within 100m of a junction on a category 0, 1, 2 or Traffic sensitive streets, or 50 m of a junction on a category 3 or 4 street; and
  • No additional traffic management arrangements are required in the view of the Permit Authority (though the arrangements themselves may alter to reflect the different position in the street, etc)

It is recognised that if this approach were to be adopted there would need to be a mechanism introduced to record each location where any excavation was carried out in order to register all the reinstatements. And once the source was located then a variation would be required giving the accurate location.

(a) Do you think that the approach in the preceding paragraph should be adopted for gas leaks (or similar emergencies which require searching for a source) - i.e. exempt from requiring a permit variation if all four conditions are satisfied, and with an alternative method of notifying the Permit Authority of the amended or additional locations?

(b) Or should the principle be accepted but with different conditions?

(c) Alternatively, do you think there should be a requirement for a permit to be obtained for each new excavation, as in the Code of Practice, but without a fee being charged? We welcome any views you may have.

3. It was previously proposed in the earlier consultation that there should be retrospective permits to deal with immediate activities. It is now proposed that permit schemes should deal with immediate activities differently. The draft Statutory Guidance envisages that emergency works should be works which are exempt from the requirement to be covered by a permit, but that there should be conditions which apply to such works set out by the Permit Authority, one of which should be a condition requiring the works to be regularised and covered by a permit within a short period. The practical effect of this change does not appear to the Department to be significant, but it removes the undesirable element of "retrospectivity" and the difficulties in enforcement which are often associated with it.

Do you agree with the changed approach to immediate activities?

4. The previous consultation and discussions proposed a "permit in principle" for major activities, broadly equivalent to an advance notice under NRSWA. This would allow provisional "booking" of road space while final details were worked out and allow early co-ordination of different activities. The draft Regulations now use the term "provisional advance authorisation" (PAA) in order to clarify that the application for a PAA (and the associated fee) is part of the process of applying for the final permit, and that the PAA is not itself a "permit" as that term is defined in regulation 2. As set out in the draft Statutory Guidance, this remains an essential pre-requisite to obtaining a permit for major activities; all the timings and requirements previously discussed in relation to permits in principle apply to PAAs. We consider that in practical terms the concept remains the same.

Do you have any comments on what is now proposed?

5. The draft Regulations require the Permit Authority to maintain a register for their permit scheme containing information about all registerable activities on those streets covered by the scheme. Highway authorities will still need to run a street works register required under s53 of NRSWA for any private streets and for any publicly maintained streets that are not included in the permit scheme. The draft Regulations require the permit register to contain the equivalent information regarding a permit street, and the registerable activities taking place on it, to that which would be required on the street works register under NRSWA. As set out in the Statutory Guidance this reflects our expectation that Permit Authorities should in practice operate a single electronic register which lists all of their streets to cover both permits and NRSWA notices.

Do local highway authorities anticipate any difficulty in operating a permit register alongside any street works register that may be needed? If yes, please state your reasons and suggest how we can achieve accurate information being placed on these registers.

6. The Act allows for regulations to enable fees to be charged for applying for and issuing permits and variations to permits. The proposed maximum fee levels are set out in the draft Regulations, and the draft Statutory Guidance indicates the proposed maximum fees for different types of activities. Each permit scheme must contain provisions as to the fees which may be charged under it, subject to these constraints.

What are your views on the fee levels and fee structure?

7. The draft Regulations allow Permit Authorities to give discounts on fees, and the draft Statutory Guidance describes instances where fees may be reduced or waived.

Do you agree with this approach to discounts? If not please could you state your reasons and provide alternative suggestions.

8. Regulation 31(4) currently provides that where two or more permit applications are submitted by utility companies at the same time in respect of works on the same or adjoining streets, the Permit Authority may charge the full fee for the first permit must allow a 50% discount to the second and subsequent permits.

  1. Do you agree with this approach?
  2. Regulation 31(4) only deals with circumstances where all of the applications are made by utility companies. If, when associated permit applications were submitted together, some of the applications were for works on behalf of the highway authority, should similar discounts be available for the utility companies' applications, bearing in mind that highway authorities do not pay permit fees? If so, are there any circumstances where the discounts should not apply?

9. In a permit regime, if the promoter does not apply for a permit, or if they apply late, or if they do not provide adequate information with the application, the authority may decide not to issue a permit for the work. The sanction if, in any of these circumstances, the promoter goes ahead and starts work, is that they will be committing an offence of working without a permit.

Do consultees consider that, in the absence of a criminal offence of failing to apply appropriately for a permit (as envisaged in the earlier consultation), the sanction of refusing a permit (combined with the offence of working without a permit for those who continue with works regardless - and the risk of prosecution or a Fixed Penalty Notice for that offence) will be effective? What are your views on this?

10. In all cases for the offence of working without a permit, and in those cases for breaching permit conditions which were clear cut (probably most), it should be a matter of fact whether a valid permit exists and what its conditions are. We consider that Fixed Penalty Notices (FPNs) may be particularly appropriate to deal with such "cut and dried" cases of non-compliance. This would not preclude bringing prosecutions in the courts where, if convicted, the fine could be higher than the FPN, but would be likely in practice to mean the courts were only required to deal with more serious cases involving for example persistent offenders or serious safety issues. We consider that it is appropriate for Permit Authorities to have the flexibility to choose between FPNs and bringing prosecutions when dealing with utility companies in breach.

Do you consider that it would be appropriate to provide the option of dealing with these offences by means of FPNs? Are there any disadvantages?

11. In the draft Regulations, working without a permit and working outside conditions are level 5 offences. If FPNs are issued in relation to those offences, the penalty payable is £250, reduced to £160 for prompt payment. The level of these penalties has been set in consultation with the Home Office.

Do you agree with the proposed fine and penalty levels?

12. The system of Fixed Penalty Notices in respect of permit schemes has generally been designed to follow closely the equivalent provisions in relation to NRSWA notices (including the draft Regulations which were recently consulted on 1 ). That does not allow a FPN to be withdrawn other than as an acknowledgement that no offence was committed, i.e. if the FPN were withdrawn it would not be possible to take the offence to the magistrates court. We feel this could be constraining on the Permit Authority in dealing with, for example, persistent offenders. Giving the Permit Authority the flexibility of withdrawing a FPN and taking the offender to court instead (repaying any FPN already paid) could encourage better compliance by poorly performing utility companies. Permit Authorities are likely to use such a power sparingly because of the costs involved in going to court and because any fines go to the Consolidated Fund rather than to the authority (as is the case with FPNs). On balance this seems a useful provision to add to the Regulations to encourage better performance.

Do you agree with the proposal that Permit Authorities should be able to withdraw a FPN and take the offender to court instead, where they consider it appropriate?

13. Part 8 of the draft Regulations provides for the modification and disapplication of certain sections of NRSWA in areas where permit schemes are in operation. This is to ensure that utility companies are not subject to overlapping requirements under both NRSWA and permit schemes (e.g. to provide a notice under s55 of NRSWA and a permit application in relation to the same set of works) and that other parts of NRSWA work effectively alongside permits.

Do you agree with the way that the draft Regulations would disapply or modify sections of NRSWA for streets operating a permit scheme? If not please state your reasons.

In particular, the proposed modifications to the draft s74 Regulations (Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) Regulations 2007) are limited. An alternative approach could involve more extensive alterations to the s74 Regulations so as to align timings more closely with those associated with permit schemes, or perhaps to provide that the duration of a permit shall automatically represent an agreed "reasonable period" for the works for the purposes of the s74 Regulations. We would welcome detailed views on what the appropriate approach should be.

14. There may be circumstances when a permit (or the attached conditions), which has been previously issued by the Permit Authority, needs to be changed. For example, a road might be closed by floods, burst mains, a dangerous building, or an unexploded bomb where significant traffic disruption ensues, leading to traffic being diverted onto the road where an activity was underway or about to start. If the consequent disruption cannot be mitigated in a better way, it may be necessary to vary the permit for the activity e.g. by changing the time or manner of working. As set out in regulation 31(2), it is proposed that where the authority initiates the permit variation, no fee will be payable by the promoter.

Do you agree? If not please state your reasons and provide alternative suggestions

15. It is important for works to be carried out as quickly and efficiently as possible, taking account of safety and environmental requirements. A permit will allow an activity to be carried out for a specific duration (in days) between the start and end date of the permit. As set out in the draft Statutory Guidance it is envisaged that in category 0-2 and Traffic Sensitive streets the duration of the activity should exactly match the time from the start date to the end date: e.g. start date Wednesday 1st June; end date Friday 10th June; duration 8 (working) days. The permit start date would be the proposed start date of the activity. Where the promoter is unable to start on the date specified in the permit or unable to complete the activity before the permit end date it would need to apply for a permit variation. A Permit Authority may or may not agree to an extension, depending on the circumstances, and the promoter may be subject to over-run charges under s74 of NRSWA.

Do you agree with this proposed mechanism? If not please state the reasons why.

16. For category 3 and 4 streets that are not Traffic Sensitive streets the draft Statutory Guidance envisages that the permit will be issued with a proposed start and end date and a duration period. It is proposed that there will be flexibility on the starting of the activity i.e. a "starting window" equivalent to the validity period on a NRSWA notice. Assuming that the example in the preceding paragraph relates to a standard activity (but on a minor, non traffic sensitive street) for which the starting window is 5 days, the activity may begin on any day between Wednesday 1st June and Tuesday 7th June without further notification to the Permit Authority. The promoter would, however, have to submit a s74 start of works notice, or equivalent, when they did start. On those occasions when the activity starts after the 1st June but on or before 7th June the permit end date moves back by an equivalent amount so that the duration remains constant, even though the start is flexible. Once the activity has started the end date is fixed. Again with the above example the activity could start on Friday 3rd June and the permit end date would move back two working days to Tuesday 14th June. The latest the activity could start would be Tuesday 7th June, in which case the end date would be Thursday 16th June. It is proposed that once the end of the starting window is reached the end date cannot be moved and the situation becomes as for the category 0-2 and traffic sensitive streets (as in paragraph 15 above).

Do you agree with this proposed mechanism? If not please state your reasons why.

17. Each permit application must relate to only one street - and as explained in the draft Statutory Guidance, we consider that where a street has more than one Unique Street Reference Number (USRN), there should be a separate permit application and permit for each USRN. Similarly, where there are phases of works - a phase is considered to be continuous activity or occupation on a named street - we envisage that there should be one permit per phase. The Permit Authority would be able to allow discounts to fees in these circumstances (and would be required to do so where regulation 31(4) applied).

Do you consider this a sensible approach? If not please let us know of your views.

18. One aim of permit schemes is to ensure a consistent approach to all activities by the Permit Authority when managing the road network. It is therefore vital that authorities demonstrate parity of treatment between types of promoters, in particular between statutory undertakers and highway authorities' own activities. One way of demonstrating this is by use of Key Performance Indicators (KPIs).

Do you consider that those indicated in chapter 20 of the CoP are appropriate for Permits? If not, can you suggest alternative KPI measurements?

19. At present, the draft Regulations do not provide for any alternative dispute mechanism in relation to permit schemes. It would follow that any disputes would fall to be dealt with by the courts. NRSWA provides that certain disputes must be dealt with by arbitration. For example, section 61(6) of NRSWA (protected streets) provides that disputes as to the withholding of consent, the imposition of conditions, or the making of contributions must be settled by arbitration.

Do you consider that it would be appropriate for disputes in relation to certain aspects of permit schemes to be dealt with through alternative dispute resolution rather than through the courts?

If so, please indicate

- what aspects of permit schemes should be covered; and

- which form of alternative dispute resolution should be used (i.e. arbitration or another form of ADR?)

20. Cancellation of permits (previous consultation envisaged a variation to cancel) - It is proposed that it would be simpler and more practical to send a cancellation which would incur no additional fee).

Do you consider this a sensible approach? If not please let us know of your views

Partial Regulatory Impact Assessment

21. Do you have any comment on the analysis of the costs and benefits in the RIA? Please provide supporting evidence where possible.

Monitoring/Evaluating permit schemes

Please note that we intend to evaluate permit schemes after their first year of operation. The evaluation will aim to determine the effectiveness of the new legislation, to learn more about causes of congestion and to see if benefits envisaged have been realised. This monitoring and evaluation will include analysis of the initial fee levels and the costs of operating permit schemes.