The following Regulatory Impact Assessments (RIAs) assess the impact of the proposals within the Traffic Management Bill, on business, other identifiable groups to be affected, and wider society.
The Bill contains four main parts: (A) Traffic management on trunk roads, (B) Network management by local authorities, (C) Measures relating to street and highway works, and (D) Traffic and parking enforcement.
Separate RIAs have been produced for each of these, together with an overarching RIA for the Bill.
It should be noted that it is not possible to complete some of the RIAs at this stage. The detailed arrangements for the regulatory regime for street works, and for civil enforcement of parking and moving traffic offences, exist at present in secondary legislation, and will continue to do so. Secondary legislation will be prepared in consultation with the key stakeholders.
Measures presented in this Bill aim to tackle urban and inter-urban congestion. They focus on a number of areas on which the Government believes that legislation can deliver a swift and significant impact on congestion and disruption on the roads.
With 1.5 million more people in work now than in 1997, car ownership, mobility and the desire to travel have increased sharply. Congestion as a phenomenon is a consequence of economic prosperity, and has therefore grown constantly over recent decades. The Government is increasing road capacity with projects such as the widening of the M1, M6, M25 and A1, but often, in urban areas for example, increasing capacity may not be an option. There is simply not the space to build more roads in many of those areas most prone to congestion. It is for this reason that effective traffic management is vital to our efforts.
Traffic management affects the economy, environment, and people's health and safety. The tools available to authorities to manage the problem rarely rest in just one part of the organisation. Some authorities have had real success in bringing these functions together in a way that allows a co-ordinated, evidence -based approach.
Demand from the more proactive authorities has led the Government to review existing powers and determine where changes are needed. Ministers' desire to manage our road network more efficiently has also lead to extensive consideration of how to encourage all local authorities to rise to the standard of the best.
This Bill therefore aims to ensure that the Highways Agency and local authorities are properly equipped with the powers that will enable them to tackle congestion, and properly focused on the task in hand. Its contents can be usefully divided into four parts, although those parts are by no means entirely separate. They can be outlined as follows:
Tackling congestion is a key objective for the Government. Transport 2010: The 10 Year Plan, set out policy aims for transport. The Traffic Management Bill will make a vital contribution to progress against important 10 Year Plan targets:
The Department for Transport also has a Public Service Agreement target to reduce congestion on the inter-urban trunk road network and in large urban areas.
The Department's document - "Managing Our Roads" - published in July this year, emphasised the effective management of the existing road network as a key element in the Government's policy for roads, and trailed some of the contents of the Bill.
This Bill can also help progress against other key government targets, including:
The provisions in the Bill aim to provide highway authorities and the Highways Agency with a stronger focus on tackling congestion, and greater powers to pursue that aim.
Existing legislation under which highway authorities attempt to control the disruption caused by utility companies' street works dates back to 1991, at which time only a handful of utilities were permitted to dig up the road. However, there are now over 150 utilities able to conduct street works. The need for those utilities to build and maintain networks of apparatus beneath the street has led to a significant growth in the levels of disruption caused by street works over the last decade. A 1985 report for the Department of Transport estimated that disruption caused by utilities' street works in the whole of Great Britain cost the economy £35 million at 1983 prices. By 1992, a TRL report was estimating the cost of disruption caused by utilities' street works at £2.4 billion. More recently, ongoing work commissioned by the Department for Transport estimates that the cost to the economy of the disruption caused by utilities' works has grown further still.
This Bill will give highway authorities much greater powers to minimise unnecessary disruption caused by poorly planned works. Amongst other examples, authorities will be given more control over where and when works can and cannot take place, provisions allow for the placing of longer embargoes to protect streets which are dug up again and again, and will provide a more effective enforcement regime for these works.
The Bill also requires that each local traffic authority appoint a Traffic Manager, so that there is a co-ordinated approach to network management, towards the end of minimising congestion. There are many different strands of work within local authorities, which need to be co-ordinated properly if their collective impact is to be one that delivers visible benefits to the public. These strands of work include not only co-ordination of utility companies' street works and the authority's own road works, but also activities such as managing parking provision, managing provision of public transport, ensuring that accurate information and advice is passed on to road users, that incidents are cleared up as quickly as possible, and more. If an authority proves unable to manage its network effectively, the Bill provides for the Government to take proportionate steps - if necessary - to ensure that road users and residents in any authority get the most out of their roads.
The Bill aims to provide a more effective enforcement regime too for parking offences, and for a number of moving traffic offences, such as ignoring banned turns or the rules at a box junction. These are powers that exist already in London, but are being extended to authorities in the rest of England and Wales. These powers are being given to local authorities so that they can enforce offences which, when committed, can cause congestion.
Those parts of the Bill which provide new powers for the Highways Agency are designed to empower the Agency as a network manager. They aim to ensure that the Agency will be better placed to manage planned and unplanned events on the strategic road network, reducing congestion and disruption for motorists.
The key risk of not legislating in this area is that over time, unmanaged growth in traffic levels could lead to greater pressure on our roads. The impact of this consequence on all road users - both with regard to business, and private individuals - dictates that this is an unacceptable risk.
With regard to the new regime for street works, it is possible that the new regulatory regime for street works will cost utilities more than the existing regime. This will depend on the make-up of subsequent secondary legislation, which will be prepared in consultation with utilities and other interested parties.
The Government believes that such a course of action would be irresponsible. If the Highways Agency and local authorities cannot tackle these problems effectively, then the resulting growth in levels of congestion would lead to more pressure on our road networks.
Tackling congestion within the confines of existing legislation. This is an appropriate approach on many fronts, and the Government is taking forward much work to tackle congestion aside from the powers to be created by the Traffic Management Bill. Essential programmes of road-building are continuing, local authorities are delivering improvements as they implement their Local Transport Plans, and continued investment in public transport is enabling widespread improvements. Between 2000 and 2010, total public and private investment in transport has increased by 45% in real terms compared with the previous decade, so that £250 million is now spent on transport every week.
However, use of only the existing legislation would not allow for the tackling of some of the most serious causes of congestion. Disruption caused by utility companies' street works is a key example. The existing regulatory regime does not put highway authorities in a position to influence a key source of disruption on our roads. If this source of congestion is to be tackled effectively, legislation is essential.
The third option - to legislate - is that which the Government is pursuing through the Traffic Management Bill, the objectives and benefits of which are detailed in this Regulatory Impact Assessment.
The extent to which all sectors of society - and business particularly - rely on the road network, dictates that better traffic management will deliver benefits to a wide range of groups. There is broad consensus amongst representative business groups - including the CBI, the British Chambers of Commerce, and the Federation of Small Business - that the Bill will be of benefit to the business. Private motorists and other road users will also benefit from the Bill. The utility sector is the only identifiable business group on which this legislation risks imposing an increased regulatory burden. The Government will make every attempt to minimise that burden, without losing sight of the need to deliver the desired benefits to wider society.
The Bill will impact on local government, too. Authorities will be given a wide range of new powers, particularly with regard to street works and civil enforcement of parking and moving traffic offences. With those new powers will come a duty to keep traffic moving, and the requirement that the authority appoint a traffic manager. In short, there is an expectation that new and existing powers will be used more effectively by local authorities, in a way that will benefit road users.
The provisions contained within this Bill are intended to be cost neutral for local authorities. The new regulatory regime for street works may impose additional costs on utility companies, so the Government will have to ensure that the benefits that this policy delivers to road users, business and society as a whole, outweigh any new costs.
Setting up the Traffic Officer service will cost approximately £40m in capital over two to three years, and approximately £35m per year in running costs. The quantitative benefits of this investment are detailed both in the appropriate RIA, and the associated business case.
Reducing congestion can have a significant impact on a wide range of road users, as well as society as a whole:
Given the magnitude of the figures involved, and the fact that congestion in one place can impact on so many different groups of people and places, estimating the impact that congestion has on the economy is not something that can be done with great precision.
Having said that, the following might prove helpful.
The above examples refer only to the potential economic benefits of savings from reducing congestion arising from the specific causes identified, on particular types of roads. However, although they form only a small part of the picture, they offer a flavour of the kind of impact that reducing congestion can have on the economy.
The warm welcome that this legislation has received from motoring groups - including the RAC Foundation - and the business community is therefore little surprise. The CBI's report on transport in July 2003 drew particular attention to the need to focus on improving management and utilisation of existing infrastructure, and to the importance of more active traffic management and better control of street works. The announcement of this legislation in the Queen's Speech was also greeted warmly by the British Chambers of Commerce, and the Federation of Small Businesses.
Utility companies - although highly supportive of the Government's commitment to tackling congestion - have expressed concerns that the attempts to reduce disruption should not impose too great a regulatory burden on their activities. The Government will work with the utilities and other key stakeholders as regulations are developed to implement the Bill's measures. The utilities will benefit from reductions in congestion, as they are also road users. This will be especially important when emergency works are required.
The investment to be made by the Highways Agency should deliver substantial benefits to the wider economy as outlined in the RIA for that legislation, and in more detail in the Highways Agency's business case for this investment.
The greater focus on traffic management by highway authorities will ensure that the present challenges are taken seriously and tackled effectively by all those responsible for managing traffic on local roads, and greater powers for local authorities to manage works in the street and enforce parking and moving traffic contraventions, should help them to deliver the benefits of reduced levels of disruption.
We do not expect that this Bill will have significant implications for competition. The risk that it will is greatest in the street works area, where competing telecommunications companies all have networks of apparatus installed beneath the street. Regulations flowing from the Bill will be framed in such a way as to minimise this risk, while focusing intently on the need to deliver significant benefits to wider society.
Proposals relating to traffic management on trunk roads were developed in consultation with the Association of Chief Police Officers (ACPO).
In order to consider potential changes to the existing legislation on works in the street, the Department for Transport established in January 2003 a working group on which representatives of both street authorities and utility companies sit. The group looked specifically at the proposals on street works and traffic managers. The three relevant utility regulators (OFTEL, OFWAT and OFGEM) were also represented on the group. Three sub-groups were also established to look at the various proposals in more details.
The Government has also issued recent public consultation documents both on decriminalised parking enforcement and minimising disruption caused by utilities' street works. The responses received were broadly in favour of the measures proposed in this Bill.
As stated in the introduction to this Regulatory Impact Assessment, change is initiated by primary legislation, but is finalised very often at a later stage, through regulations. The regulatory regime for street works relies on secondary legislation to put in place its detailed arrangements. The RIAs for the new regime for street works - as well as those for civil enforcement of parking and moving traffic offences - can therefore only be completed in part at this stage. It is for this reason that in many cases, the precise impact of measures to be taken cannot be estimated at this stage, either by the Government, local authorities, or utility companies. As and when the Government brings forward such regulations, there will be further consultation with key stakeholders, and those RIAs will be completed, together with fuller cost-benefit analyses.
The Government believes that preserving the existing arrangements for the management of road networks would risk leading to continued increases in both urban and inter-urban congestion. Reducing congestion is of the utmost importance, and the Government believes that the provisions within the Traffic Management Bill will help to focus efforts on achieving that objective.
The Government has therefore introduced this Bill into parliament, and intends to implement its provisions as a matter of urgency.
Ministerial declaration
I have read the Regulatory Impact Assessment and I am satisfied that the benefits justify the costs.
Parliamentary Under-Secretary
Department for Transport
The Highways Agency is an executive agency of the Department for Transport. The Secretary of State for Transport is the highway authority for the network and carries out this function through the Highways Agency. The Government wants the Highways Agency to improve the capacity of the existing road network and reduce the impact of congestion, and wants the police to focus on tackling crime. At present, the agency's remit is largely restricted to road-building, and the police are responsible for day-to-day traffic management. The roles and responsibilities of the Highways Agency and the police in managing use of the strategic road network needs to be improved to meet the respective organisations' objectives.
In June 2002, the Highways Agency and the Association of Chief Police Officers (ACPO) commissioned a review of roles and responsibilities in managing the strategic road network. The objectives were to;
The review, which concluded in November 2002 and was published in June 2003, detailed a strong case for a transfer of certain traffic management tasks from the police to the HA. The tasks fall into three key categories: control office functions, on-road activity, and central planning and control functions.
To assume a greater traffic management role the Agency will need to establish:
The powers sought in the Traffic Management Bill will secure the creation of a uniformed Traffic Officers service under the supervision of the Secretary of State.
Traffic Officers with "on the ground" powers will manage the traffic consequences of highway incidents (such as break downs, obstructions, debris, and accidents), and also deal with programmed highway events such as temporary road closures. To do this Traffic Officers will be empowered to;
The Police will still patrol the road network; they will deal with major incidents alongside Traffic Officers and deal with minor incidents if they arrive at the scene first (until the Traffic Officers are able to take over).
It is important to note that Police will have primacy and may take control of any incident where they feel this is appropriate.
The Secretary of State would have the flexibility to appoint Traffic Officers directly, or to authorise external contractors to do that job (following the model of the Dartford Crossing).
The Secretary of State already has the necessary powers for the Highways Agency to develop its control office role in partnership with the police. The establishment of Traffic Officers will complement and strengthen the new control office role by giving the Highways Agency an on road presence. The combination of these two initiatives will enable the Agency to develop its traffic management role effectively.
The Highways Agency and Association of Chief Police Officers considered three options for progressing the outcome of their roles and responsibilities review. They included: (1) do nothing; (2) introduce more on-road resources only; (3) introduce Regional Control Offices, run in partnership, only; and (4) a comprehensive planning, control and on-road network management service.
The last option is the preferred and chosen option, allowing the Highways Agency to perform a significant and influential network operator role, whilst maximising benefits to road users. It is the only option that allows a credible withdrawal of significant police resources from network management and operations and permits a significant refocusing of police effort towards major incident management and detection and prevention of criminal activity.
The Highways Agency and Association of Chief Police Officers have a full, formal, business case setting out the benefits and costs of transferring traffic management tasks to the Highways Agency. The business case is updated as more detailed and reliable information becomes available. It has been scrutinised and approved at Office of Government Commerce Gateway Reviews (1, 2 and 3) and at the Highways Agency Capital Investment Committee.
An electronic copy of this business case can be found on the Highways Agency's website 1
Total annual financial benefits are estimated to be worth £98m, with the primary benefit being an estimated reduction in incident related congestion on the motorway network of 17%. One-off capital costs are estimated to be £49m, with annual recurring costs of £57m. All of these costs are funded from the Highways Agency's budget, there are no costs to industry and the public.
A transfer of roles and responsibilities would enable the Agency to take a more proactive role in limiting the impact of incidents on effective network operation, whilst allowing police to concentrate on their core activities. The expected benefits of the project include;
There will be benefits for departments in delivering against their Public Service Agreements (PSAs), which include;
Congestion on the Highways Agency network is estimated to cost the country about £3 billion each year. With traffic growth forecasts of about 25% over the next decade there will be increasing pressure on the road network which, if left unchecked, will lead to greater congestion, delays and costs to industry and individuals. It has been estimated that one quarter of congestion delays are caused by incidents, which can cost £200,000-400,000 per hour.
Financial estimates derived for the business case have conservatively estimated benefits, for the motorway network alone, of £77.5m/yr.
The police will be able to reallocate resources to focus on core policing activities. Estimates suggest that the equivalent of about 550 police officers (worth £20m per annum) could be freed up to deal with crime related issues, either on the road or elsewhere.
|
Benefit |
Explanation |
Value |
|---|---|---|
|
Improved journey-time reliability |
|
£67m/yr |
|
Enhanced road safety |
|
£10.5m/yr |
|
Increased police focus on incident management and tackling crime |
|
£20.5m/yr |
|
Achieving broader Highways Agency and police objectives |
|
not quantified |
Detailed planning work is being undertaken to ensure that the full benefits, specifically in terms of reducing incident related congestion and freeing up police resource, are realised. Key performance indicators will be used to monitor, assess and report actual impacts, and to maximise benefits.
1 Electronic Business case can be found at: www.highways.gov.uk/aboutus/corpdocs/r_and_r/2003/index.htm
The legislation does not add to compliance costs for business, charities or voluntary organisations.
There is a one-off capital investment and revenue cost of approximately £72m. This is spread over two to three years, which is the length of time during which the Traffic Officer Service will be rolled out nationally. Annual running costs of the Traffic Officer Service and Regional Control Centres will be in the region of £57m. Total capital and running costs equate to about 3% of Highways Agency annual expenditure and are accommodated within existing budgets.
|
Cost |
Major components |
Value |
|---|---|---|
|
One-off capital costs |
|
£49m |
|
One-off revenue costs |
|
£23m |
|
Highways Agency costs |
|
Not yet quantified |
|
Annual revenue costs |
|
£57m/yr |
The risk run by not legislating in this area is that a significant opportunity for reducing congestion will be missed. The anticipated consequence of missing that opportunity would be that congestion caused by incidents on trunk roads will not be minimised.
An outline business case for the introduction of the new services indicates that a positive cost benefit can be achieved using conservative estimates of the likely benefits and costs. There is a Net Present Value of £35m over 10 years, including all contingencies and allowance for risk and optimism bias, based on guidance provided by the Treasury Green Book. All costs are funded from Highways Agency budgets, with no costs to industry or the public.
There are also significant non-economic benefits for roads users. Additional resources will mean a better level of service on the network with on-road assistance, off-road assistance (emergency telephone call handling), and better travel information. Also, the police will be able to reallocate resources to deal with core police priorities.
The legislation does not favour any particular types of road users above others. Neither does it favour or adversely affect any business sector. Therefore, on balance, the legislation has a neutral effect.
The measures are not expected to have any implications for competition. The competition filter is therefore not applicable and detailed assessment is not considered necessary.
The "Roles and Responsibilities Review", which recommended introduction of Traffic Officers, was commissioned by the Highways Agency and Association of Chief Police Officers. A Board of senior representatives from the Department for Transport, Highways Agency, Home Office and Police were responsible for steering the project at a strategic level. The Highways Agency and police worked in partnership and through a combination of workshops and consultations with primary stakeholders, including: constabularies, road contractors, the County Surveyors Society, AA, RAC, the Freight Transport Association, the Road Hauliers Association and Transport Research Laboratory.
The Highways Agency and police are continuing to consult widely, working to a communication and stakeholder management plan, and are keen to involve stakeholders during both the design and operation of new services. Consultations will be extended and enhanced as detailed operating procedures are drawn up. Ongoing assessment will be undertaken of the impact on stakeholders and interfaces with other highway authorities.
The proposed measures do not impose any new or increased burden. We have therefore not consulted small businesses separately. Road haulage bodies are very supportive of the measures, which will help their business by improving journey times and journey time reliability.
The role of the traffic officer is to help and support road users, not to enforce the law. The Department will monitor the effectiveness of the new powers in consultation with the police, highway authorities and undertakers to see whether any further modifications are necessary.
The roles and responsibilities of the Highways Agency and the police in managing use of the strategic road network need to be re-aligned to meet the respective organisations' objectives. In order to fulfil the role of network operator set out in the White Paper "New Deal for Transport", the Highways Agency needs to adopt a proactive approach to managing the way traffic uses the strategic road network. At the same time there is increasing pressure for the police to focus on core police priorities, such as preventing and detecting crime, as set out in the White Paper "Policing a New Century: Blueprint for Reform". A review of the police and Highways Agency shows that there are significant benefits in transferring some traffic management responsibilities from the police to the Highways Agency.
New legislation is necessary to enable the Highways Agency to introduce a new on-road resource in the form of Traffic Officers. The ability to deploy this new resource will enable the Agency to carry out traffic management activities that will help to tackle congestion and improve safety, whilst freeing up police resources. Without these powers the Agency will be unable to develop an effective on road traffic service, and the police will be unable to scale back its current traffic management role to focus more on its own core duties.
The Government recommends that the new legislation be introduced.
Ministerial declaration
I have read the Regulatory Impact Assessment and I am satisfied that the benefits justify the costs.
Parliamentary Under-Secretary
Department for Transport
The efficient operation of road networks, especially in the major towns and cities, are important for economic vitality and society generally. They provide the means for transporting people and goods as well as providing access to homes, shops, businesses, services etc. In addition, under the surface, roads provide the conduit for basic services and communications that underpin a modern society and economic activity.
Management of the road network is split between the Highways Agency, responsible for four percent of the network including most of the motorways and the main strategic routes, TfL and the London Boroughs responsible for the strategic network and local roads respectively in London, and 116 metropolitan district, unitary and county authorities who are responsible for the remaining roads within their boundaries.
In Wales, the National Assembly is responsible for the trunk roads and motorways and unitary authorities for all other roads.
These authorities have a range of powers and duties under which they manage activities taking place on the network and the use of the network by different groups of road users. In particular, authorities have roles as:
There are a range of activities which authorities carry out, utilising the powers conferred by the above Acts, which contribute to the overall management of the network, including:
While authorities exercise functions using the powers in the above Acts, they also need to take account of their other responsibilities e.g. under environmental protection, Health and Safety or planning legislation.
Performance varies between authorities. Some networks are operated efficiently, with authorities actively involved in their management. In other cases, this may not be given a high priority, or the different parts of an authority may operate in separate compartments, or there is a lack of appropriate expertise; the result is a less efficient network with unnecessary congestion and delay.
Failure to legislate would preserve the status quo, in which the Government believes that there is insufficient demand made of highway authorities to ensure that they manage their networks in a holistic way, with the interests of road users in mind.
The proposed measures come in three parts:
Given the importance of an efficiently operated road network, the objective of the provisions in the Bill are to raise the standard of network management across all authorities, and to enable remedial action to be taken where such improvement fails to occur.
The intention here is to underline the importance of pro-active co-ordination and management across the network by creating an explicit new duty on authorities to secure the expeditious movement of traffic through making appropriate arrangements for, and carrying out, network management activities. This duty is not confined to any one role of an authority; it applies to all that it does affecting roads and traffic (including pedestrians) using them.
Associated with this new duty, the Secretary of State will be able to issue statutory guidance on the execution of those duties. That could include guidance on performance indicators by which authorities performance against the duty can be measured. Such indicators will be carefully considered and drawn up in discussion with local authorities and others, to ensure that they lever the right outcomes and do not create perverse incentives.
All traffic authorities will be required to appoint a Traffic Manager as part of their arrangements for delivering the new duty. We are not specifying the precise structure around the Traffic Manager. This will vary between different authorities, according to how they choose to manage their affairs. The Traffic Manager could be someone already within the authority; it does not have to be an additional post. But the aim would be that the person would be a focal point within the authority, drawing together all the strands of activity that effect movement on the road network, ensuring co-ordination of the authorities' own activities and with others such as utilities.
The Traffic Director could operate in two ways:
The Secretary of State's direction could vary the extent of functions and network over which the Traffic Director would have a remit. For example, the remit could be limited to the co-ordination of works on the main road network only - if that was the problem that had been identified - or it could be much wider covering more functions or the whole the network. The aim is to provide flexibility so that the intervention is targeted at the specific problems. Combined with the differing modes of intervention available, this will enable the Secretary of State to take appropriate action tailored to deal with each set of circumstances.
The process is, of course, reversible, so that when an authority is able to take on its own functions again, this can be accomplished.
The direct impact of these measures is upon local authorities. Issues of equity and fairness affecting individuals or groups of individuals, or indeed sectors of the economy, do arise. As far as authorities are concerned, the new network management duties will have most impact where authorities are currently weak in this area. Good authorities will be fulfilling the duties anyway. When it comes to intervention by the Secretary of State, decisions will have to be subject to a test of reasonableness since potentially they will all be open to Judicial Review by an aggrieved authority. A key issue will be the basis on which an authority will be judged to have failed in its network management duties. The Secretary of State will publish guidance so that the criteria will be clear to authorities. This will sit alongside the guidance associated with the network management duties. Both will be developed by the Department in conjunction with local authorities and others. The procedures associated with the exercise of intervention powers will ensure that evidence is sought before any powers are used. As indicated above, the range of intervention levels, and flexibility in functions and extent of a Traffic Director's remit, should provide that any action taken is proportionate to the problem being addressed.
As far as other parties such as utility companies are concerned, the appointment of a Traffic Director should not affect their position. If the Traffic Director stepped into the authority's shoes, the utilities would deal with the Traffic Director instead of the authority. It should be possible to make this a transparent process through the use of IT systems and avoid introducing additional bureaucracy.
The benefits of better management of the road network are manifold:
It is clear, too, that were an authority failing to tackle congestion, the costs of this - ie the opposite effect of the benefits listed above - could be very great.
It is not possible to quantify the benefits at this stage. However, even relatively modest improvements in network capacity of single figure percentages, as a result of these measures, would bring very wide spread and substantial benefits in any congested town or city. These are the very situations where these measures will be most relevant.
The Bill's provisions overall should be cost neutral for local authorities. Depending on how they choose to exercise the new duty, and on how they decide that their Traffic Manager should fit into a new or existing structure, any costs created by this particular part of the Bill will be determined by the authorities themselves. Where authorities have created a distinct 'network management' function, this office has been occupied by two or three staff. But the Traffic Manager does not have to be a new member of staff. Some authorities are likely to take the view that the improved internal organisation or communication may be sufficient to ensure that they are able to fulfil the new duty and associated requirement to appoint a Traffic Manager. In many cases it may not be possible to wholly separate the costs of the new duty and Traffic Manager appointment from that of other elements of the Bill, or to allocate offsetting revenues against the different elements.
The costs of imposing a Traffic Director are also likely to be variable depending on the remit given to the Traffic Director. The monitor and intervene role is likely to require relatively modest additional resources, the direct control model more effort. In the latter case there are possible offsetting reductions within the authorities as functions are taken over by the Traffic Director. Costs of creating a Traffic Director would be met from a combination of sources: the Secretary of State; income from actions of the Traffic Director; and contributions from local authorities. The proportions from each source would be a matter for later consideration in the light of particular circumstances.
The risk that this policy seeks to address is that of authorities' activities being treated separately by the, yet having the unintended collective impact of worsening congestion. This might happen, for example, if poor planning allowed major road works and major street works to be conducted in close proximity at the same time, or at the time of a major event, when that were not absolutely necessary.
In authorities in which little effort is made at present to ensure that the collective impacts of different workstreams is properly controlled, there is a greater risk of additional costs as a result of these provisions. As authorities will be free to make whatever arrangements they consider most appropriate with regard to fulfilling the network management duty and appointing a traffic manager, it will be for local authorities to manage this risk.
Although some local authorities may incur some additional costs in responding to the network management duties, and there will be some additional costs involved if the intervention powers are invoked, these will not bear directly on business. Indeed business should benefit from the improved traffic movement resulting from these measures. Overall, the potential benefits of even relatively small improvements in the performance of congested networks, mean that the benefits (measured in traditional cost benefit terms) are likely to more than outweigh the costs. And at least some of the costs if the intervention measures are invoked may be offset by costs recovered from the authorities in question.
We do not believe that these provisions have any significant competition implications.
In early 2003 a Working Group was established by the Department for Transport which included representatives of local authorities, utility companies and other Government Departments to discuss possible measures for the Bill. One sub Group looked at Traffic Manager/Traffic Director proposals. Discussions had subsequently taken place within the Traffic Management Board of the Roads Liaison Group, where local authorities are represented, about the main principles of the proposals.
The aim is to promote good network management through the duty, the guidance and by working with authorities to develop and adopt good practice. Enforcement of the network management duty, if it is required, will be through the deployment of the intervention powers, which will themselves be triggered through the performance indicators and other measures which will be developed in conjunction with local authorities and others.
As with all new policies the Government will monitor the effectiveness of the policy and review it after a few years. In doing this the Government will seek to integrate such an exercise with the other monitoring and appraisal of local authority transport performance.
Having considered the issues set out above, the Government considers that legislation is necessary in this area, as the existing regimes do not place a strong enough emphasis on the need for authorities to manage their network in a holistic way. The Government believes that the benefits of improved network management resulting from the propose Traffic Manager/Traffic Director measures - including the enhanced network management duty - will more than outweigh any additional costs incurred by authorities in implementing these measures.
Ministerial declaration
I have read the Regulatory Impact Assessment and I am satisfied that the benefits justify the costs.
Parliamentary Under-Secretary
Department for Transport
There have been long standing concerns about the disruption, delay and inconvenience caused to road users, including businesses, public transport operators, private motorists, pedestrians and disabled people, by street works carried out by statutory undertakers. At the same time, the undertakers - utility companies concerned with the supply of gas, water, electricity or telecommunications - have statutory rights to carry out street works as part of providing essential services to the public. Equally, road works carried out by highway authorities (eg county councils) can cause unnecessary disruption if not carried out efficiently.
The existing legislative framework for street works, the New Roads and Street Works Act 1991 (NRSWA), sets out the broad powers and responsibilities which utilities and local authorities have in relation to utilities' works to maintain or install their apparatus. However, it has become increasingly apparent that the 1991 Act failed to anticipate the scale of works which would follow from the deregulation of the various utility sectors, and the need to co-ordinate better the many different works being carried out in our streets each year. There are now many more utilities with the right to dig up the road than there were in 1991.
Research conducted by Halcrow for the Government concluded that some 5.4 million days of works were carried out by utility companies on the roads in England during 2002/03, and 1.1 million individual works were carried out in the same period.
Unless the Government legislates to achieve a better balance of control over activities on the road between highways authorities and utilities, the present levels of disruption for road users are unlikely to fall.
Whilst the broad legislative framework is set out in NRSWA itself, the 1991 Act provides for the details to be set out in a series of subsidiary regulations guidance. So, for instance, separate codes of practice and supporting regulations have been produced covering, amongst other things, the co-ordination of different works, restoring the surface of the street after carrying out works, and recording the position of apparatus buried beneath the highway.
The proposed changes which this Bill will make to the 1991 Act adopt a similar approach. So, for instance, the Bill provides for regulations to be issued setting out the detailed arrangements for operating permit schemes. The secondary legislation and codes flowing from the Bill will be the subject of discussions with interested parties, such as statutory undertakers and local authorities, on the fine details of the arrangements to ensure that they are effective, workable and proportionate.
In October 1999, the Government issued a consultation document, Reducing Disruption from Utilities' Street Works. At that stage, there appeared to be little prospect of an early legislative slot, and the consultation paper made this clear. However, many of the responses received suggested changes to the regime that would require primary legislation. Several of those suggestions have been taken on board in the preparation of the Traffic Management Bill.
These suggestions include:
The Department for Transport also established in January 2003 a working group on which representatives of both street authorities and utility companies sit, in order to help it consider a range of possible legislative changes. The three relevant utility regulators (OFTEL, OFWAT and OFGEM) were also represented on the group. Three sub-groups were also established to look at the various proposals in more detail, including a separate sub-group looking at changes to the enforcement regime. The proposed changes to maximum fines broadly reflect the sub-group's recommendations.
Highway authorities and utility companies were invited to comment on a wide range of options that were under consideration. In the light of these responses, the Government decided to pursue those measures which are now included in the Traffic Management Bill (and are detailed below).
The equivalent legislation for highway authority maintenance works is the Highways Act 1980, which places a duty on highway authorities to maintain the highways for which they are responsible. The duty to maintain extends to keeping the fabric of the highway in proper repair and to taking preventative measures to ensure that it does not fall into disrepair. The Act does not specify what standard of maintenance is required, but case law has decided on a standard necessary to accommodate the traffic that ordinarily uses the highway. The standard required may, therefore, differ according to the type of road, with a higher standard expected for a motorway than a minor road, for example.
The 1980 Act allows any person to enforce the duty to maintain through the courts. If a highway authority fails to maintain the highway and someone suffers injury as a result, the highway authority will be liable for breach of statutory duty. This liability is limited to physical injuries suffered (whether to the person or to property) but does not include purely economic loss. The situation is slightly different if the highway authority has carried out repairs but has done so badly, and someone suffers injury as a result. Here the usual principles of negligence apply and the highway authority must have shown a lack of reasonable care in carrying out the repairs.
The measures in the Bill relating to street and highway works apply to England and Wales. The Secretary of State for Transport and National Assembly for Wales (NAW) would have the power to decide whether to commence the provisions in so far as they extend to England and Wales respectively. The powers to make regulations and issue guidance or codes of practice would also be exercised separately. The provisions would not apply to Scotland or Northern Ireland.
At present there are a wide range of bodies which have the right to carry out activities in the street which may have the effect of reducing the amount of road space otherwise available to road users. These all have one thing in common. They have the potential to cause disruption to those using the street, whether these be drivers, user of public transport, businesses, pedestrians or those living or working in the vicinity. These activities include:
To differing extents, each of these is already subject to a range of controls over how and when they are carried out. The provisions in the Bill will allow for the creation of "permit schemes" which provide a more comprehensive and standardised system of controls on how and when these activities are carried out than are available under the current sets of controls. The Bill will also allow certain bodies, for instance local highway authorities, to apply for permission to operate permit schemes.
Clearly, each of the activities listed in the previous section can confer benefits upon society, for instance utility works are needed to provide vital water, gas, electricity and telecommunications services. However, depending upon how they are executed they can also have a negative side, for instance by causing disruption to those using the roads or degrading the quality of public spaces. The aim, therefore, should be to balance the need for these activities to take place with reducing the negative impacts that they can have. At present these activities are controlled through various pieces of legislation. For instance:
In some cases the bodies carrying out the activity have a statutory right to do so. For instance, in the case of utility companies, their parent legislation (eg the Gas Act 1996) gives them this right. In other cases (for instance the placing of skips or storing of building materials) specific permission needs to be obtained from the relevant highway authority on each occasion. However, the ability to carry out the activity is not a blanket permission and various limitations or conditions may be placed on the manner in which the activity is carried out. To take an example, NRSWA requires, amongst other things, that utility works are carried out safely, speedily and that the road surface is restored to a high standard after works are completed. The Highways Act 1980, in turn, allows authorities to attach certain conditions to the placing of a skip in the highway, for instance its size and how it is to be lit and guarded.
The procedure for approving and controlling activities differs markedly from one type to another. This also means that the controls that can be placed on certain activities are greater than can be placed on others. Given the varying nature of each of these activities it is inevitable that there are different factors that need to be taken into account in determining how and when they are to be carried out. However, exactly what the activity is may be immaterial to how much disruption it causes. For instance, in a road with high traffic flow, utility street works, local authority maintenance works and a skip placed in the road could cause an equal amount of disruption according to exactly where they are taking place.
Given this, the Government believes that if the best use is to be made of the nation's road network it is vital that those responsible for maintaining that network are able to ensure that there are effective controls over activities in the street, especially in those areas where disruption is a particular problem. It also believes that, in certain circumstances, this can best be achieved though a less fragmented and more comprehensive system of controls.
The three main options are as follows:
(i) Maintain the status quo. Keeping in place the existing arrangements under which activities in the street are conducted would avoid placing any additional burdens on those carrying these out. Against that, it would not address the problem of existing levels of disruption.
(ii) Amending relevant parts of NRSWA and the Highways Act 1980. As explained above, the degrees of control which can be exercised by highway authorities tends to vary according to what the activity in question is. It would, in theory, be possible to address this by strengthening the law in those areas where the current levels of control are felt to be inadequate (eg by amending the relevant parts of NRSWA and the Highways Act 1980). These new powers would, therefore, be available to all highway authorities.
(iii) Take powers to allow for permit schemes. A third option would be to draw together a comprehensive pack of powers which could be used to exercise greater control over activities, regardless of what these were, in areas where this was thought desirable. The exact scope of the powers could be varied from one area to another, according to the scale of the problem.
Having taken the above into account, the Government believes that the third option offers the best way forward, although this would not totally rule out the other options, in that the existing arrangements would still apply in areas where there was no permit scheme in operation.
The Bill will provide the following framework for the operation of permit schemes.
If it was decided to activate the permit powers which the Bill provides, the Secretary of State for Transport (or National Assembly for Wales - NAW) would draw up regulations setting out the broad framework for operating schemes and details which would be common to all schemes. In addition, a guidance document would be issued containing advice on the operation of schemes, which permit operators would have to take account of.
Where an eligible body wished to operate a permit scheme, it would have to submit a formal bid to the Secretary of State/NAW with details of the scheme which it proposed to run. If Ministers were content for the body in question to operate a scheme and with the details of their scheme then they would formally approve the scheme by means of an Order.
The following classes of body would be eligible, in theory, to operate permit schemes:
The Bill would, in theory, allow for utility street works and activities regulated under the Highways Act 1980 to be made subject to a permit in permit areas, including:
The Bill would allow for the following conditions to be attached to the grant of a permit for a particular activity:
Whilst the Bill provides scope for a wide range of permit operators, works requiring a permit and conditions which can be attached to a permit, these would be subject to the more detailed regime set out in regulations. It would, for instance, be possible for the regulations to confine the need for permits to, say, utility street works and exclude the placing of conditions relating to the environmental effect of works from the scope of permit schemes.
The Government envisages also that the regulations would impose certain features which would be common to all permit schemes, for instance the process for applying for a permit, how much (if anything) a permit would cost and arrangements for appealing against conditions attached to the grant of a permit where these are considered to be unreasonable.
As explained elsewhere in this Regulatory Impact Assessment, any activity carried out in the street has the potential to cause disruption depending upon how long it lasts, where it is carried out and its scale. The benefits of being able to better control these activities are many, including:
The introduction of permit schemes could also provide an opportunity for reduction in bureaucracy, by streamlining a number of different powers, which can at present constitute a fragmented system.
It is not possible to quantify the exact benefits at this stage, as this will depend upon how widespread the operation of permit schemes is and the scope of the schemes, as set out in regulations and in the details of individual schemes. A further RIA will be produced at the time any regulations are brought forward, which will provide greater details of the respective costs and benefits.
The powers in the Bill allow for secondary legislation to set out the details of how permit schemes will be operated, and the extent of any costs will be dictated by those regulations, which will be developed in consultation with local authorities, utilities, and other interested parties.
For both permit operators and those who could be required to apply for permits, costs would depend on the efficiency of permit schemes compared with the existing regime, and the level of charges that permit authorities would be allowed to levy for issuing permits.
The introduction of permit schemes through regulations depends upon getting the detail of those regulations right, so as to ensure that permit schemes are effective, and do not impose unnecessary or excessive costs on those who run them.
There are risks that the introduction of permit schemes could create additional bureaucracy, require more staff than the present regime, and that unnecessary costs could be imposed on utilities and others.
The Government will consider how the introduction of permit schemes would interact with existing charges that can be made by authorities where utilities conduct works in the street, notably lane rental and overrun charges.
To minimise these risks, the Government will consult widely with all interested parties in drawing up any regulations.
Balance of costs and benefits
Permit schemes have the potential to bring benefits to road users, local residents and businesses through better control of potentially disruptive activities in the street. They also offer the possibility of a less fragmented way of administering such activities than at present. Set against that, if not sensitively and efficiently operated there is a risk that they could increase costs for those operating them and those obliged to apply for permits.
A fuller RIA will be produced at the time regulations are prepared. At that stage, following consultation with highway authorities and utility companies about the range of options available and the risks associated with those options, the Government will offer more detailed information about the anticipated impact of its proposals, and particularly about the balance of costs and benefits.
Such regulations will contain a detailed framework for the operation of schemes and the different activities which would require permits.
We do not believe that there would be implications for competition in establishing permit schemes, as scheme operators would be expected to deal with applications for a permit on a non-discriminatory basis.
In early 2003 a Working Group was established by the Department for Transport which included representatives of local authorities, utility companies, utility regulators and other Government Departments to discuss possible measures for the Bill. One sub-group looked at permit schemes, and related proposals. The findings of this sub-group were taken into account in drawing up the proposals for permit schemes.
Further consultation will be held with each of the above and other relevant organisations as part of preparing the detailed framework for permit schemes via regulations and the guidance notes for permit scheme operators.
Regulations setting out the framework for permit schemes will also set down any criminal offences relating to this area. The Government envisages that carrying out works without a permit and disregarding conditions set down in permits will be a criminal offence, but wishes to consult widely before taking a final decision. Any offences created will be subject to a maximum fine of £5,000 upon conviction.
The broad framework for operating permit schemes will need to be set out in regulations, together with guidance notes which those operating schemes would have to take account of. A further Regulatory Impact Assessment will be produced at the time any such regulations are prepared. The Department would then monitor the effectiveness of those permit schemes which were in operation to see whether they were working effectively, without imposing excessive burdens both on those operating schemes and those that would have to apply for permits. In light of that the Department would consider whether it was necessary to make any changes to the overall framework - that is the regulations and guidance - under which permit schemes operated.
Having considered all the above issues, the Government has decided to legislate in this area. However, whilst the Bill will provide the general framework for permit schemes, it is intended that a more detailed framework will be set out in regulations. Those bodies wishing to operate permit schemes will need to submit a formal application to the Secretary of State for Transport or National Assembly for Wales (NAW), with details of their proposed scheme. The Secretary of State or NAW will be able to issue guidance which those proposing to operate schemes will have to take account of. If they are content with the proposed schemes, the Secretary of State or NAW will make an order approving each scheme.
Under sections 54 and 55 of the New Roads and Street Works Act 1991 undertakers who wish to carry out works in the street are obliged to give the street authority (normally the local authority for that area, eg Hampshire County Council) advance notice of the nature of these works. Under s56 of the 1991 Act, if a street authority considers that the proposed works are likely to cause serious disruption to traffic (and that the disruption could be avoided or reduced if the works were carried out at different times) then the authority can direct the undertakers as to the times at which the works can or cannot be carried out. So, for instance, it could direct that the works are not to start until after the morning rush hour.
The procedure which an authority must follow in issuing such directions is set down in regulations by the Secretary of State for Transport. He or she may also issue a code of practice which gives more detailed advice on the use of directions. These procedures are currently set out in the Street Works (Registers, Notices, Directions and Designations) Regulations 1992, and in Chapter 3.6 of the Code of Practice for the Co-ordination of Street Works and Works for Road Purposes and Related Matters (the second edition of which came into force in April 2001).
As currently drafted, it is unclear whether section 56 of the 1991 Act allows street authorities to go further than simply directing the time of day at which particular works can or can not be carried out, (for instance that works can only take place between 10am and 4pm on a given day) in order to direct that works cannot be carried out at all on certain days. A failure to legislate would lead to continued uncertainty over the meaning of the law as it stands, which might in turn lead highway authorities and utility companies to the courts to dispute instances in which these directions are issued. Failure to make it clear that authorities are permitted to direct utilities as to the days on which they may carry out works, could create a situation in which a utility could close a lane of a busy road to conduct works for two days in a highly congested area on a Tuesday and Wednesday, when they could have been directed to carry out the works over, say, the weekend, when they would cause less disruption to road users.
The Government believes, therefore, that, in certain circumstances, authorities should be able to direct not only the time of day on which works can or cannot be carried out but also on which specific days. So, for instance, they should be able to direct that, in order to reduce disruption, a particular set of works on a busy street should begin on March 11 rather than on the undertaker's preferred start date of March 4.
It is proposed, therefore, that section 56 of the 1991 Act be amended to make clear that the power to direct can extend to directing which days a particular works can or cannot be carried out on, rather than just the permitted times on a particular day.
Ministers also believe that, in certain circumstances, it would be possible for the disruption caused by works to be reduced if those works were to follow a different route. At present, a utility is able to choose its own route when installing apparatus to connect two points. This means that although an undertaker might be presented with a choice between two possible routes, that utility would be under no obligation to consider the disruption caused to residents, motorists, pedestrians or others when deciding which route to dig up. The Government believes that it is inappropriate that the status quo allows decisions about the routes to be followed by utilities' works to be left entirely in the hands of the utilities, who may not be well placed to make judgements about the different levels of disruption that alternative routes might cause.
Given that, it is proposed that a street authority should be able to direct an undertaker, in certain circumstances, that it must find an alternative to its preferred proposed route for a particular works, where taking an alternative route could avoid or reduce serious disruption.
Inevitably, in the case of the majority of undertakers' works it would not be realistic to require them to follow a different route. For instance, where a leaking water main needs repairing it is not practical to direct the undertaker to carry out the repair work at a different location. Also, where a householder wishes their house to be connected to the electricity mains the work obviously needs to be carried out at that location.
However, there will be other occasions where there is more than one route which can be taken. For instance, in the case of a telecommunications cable or a water main connecting two relatively distant sites. If there were two possible routes which such works could follow, one of which involved digging up a road which was heavily used by road traffic and the other following a much quieter road, then the choice of route could affect significantly how much disruption and congestion the works would cause.
However, the Bill sets several restraints on the power to direct an undertaker to carry out his proposed works on a route other than his preferred route. Firstly, directions can only be made where the works involve the installation of new apparatus, rather than work to apparatus already located in or under the highway. Secondly, a realistic alternative route must exist. Thirdly, directions could only be made where the proposed route would be likely to cause serious disruption to traffic and where this could be avoided or reduced if a different route was followed.
The detailed arrangements for operating the revised power to issue directions are to be set out in subsequent secondary legislation to be issued by the Secretary of State for Transport or NAW.
Those benefiting from allowing highway authorities to direct undertakers to reduce disruption by carrying out proposed works on different days or following different routes would include businesses (for instance where works could be directed to take place outside opening hours, during school holidays, or in a place that did not restrict access to the premises), private motorists, public transport operators and passengers, and pedestrians.
The benefits would be derived from authorities' being able to plan and co-ordinate programmes of works more effectively. For example, minor works on traffic sensitive roads could take place at weekends, and where possible, more significant works might take place during school holidays or during other more appropriate time periods.
The exact level of benefit to be derived would depend upon the detailed rules for making directions. This would need to be set out in regulations to follow the Bill.
Requiring an undertaker to delay or change the date of works, will not necessarily lead to increased costs for that undertaker. The same broad principle applies to requiring a utility not to follow a particular route when installing apparatus between two points.
Whether or not these powers do impose costs on utilities will depend on the framework created in regulations.
Key factors to be considered will include:
To ensure that the benefits of these changes are greater than the costs, regulations will also need to consider:
In order to minimise the risks associated with these powers, the Government will consult widely with authorities, utilities, and other interested parties when drawing up regulations.
As explained above, the exact balance of costs and benefits will depend upon the framing of the regulations, but the Government believes that failure to legislate on these points would prolong an unclear situation in which the outcomes - often unnecessarily - cause serious disruptions which impact on road users. The Government believes that the benefits to businesses, road users and local residents from the proposed changes to section 56 of the 1991 Act should outweigh any costs which these will impose on undertakers and highway authorities. Having said that, it is obviously important that the detailed arrangements should be tailored so that they deliver the expected benefits without imposing unnecessary costs on undertakers and others.
A fuller RIA will be produced at the time regulations are prepared. At that stage, following consultation with highway authorities and utility companies about the range of options available and the risks associated with those options, the Government will offer more detailed information about the anticipated impact of its proposals, and particularly about the balance of costs and benefits.
At this stage, it is not expected that the proposals would have a significant effect on competition on the basis that, usually, a particular route would not be of such significant commercial value such that a requirement for a utility to consider an alternative route would affect competition. Having said that, it will be important to ensure that the power to direct an undertaker who wishes to place his apparatus in a particular street to take an alternative route does not give those undertakers with apparatus already located in that street an unfair competitive advantage. Whilst we do not envisage significant competition concerns arising at a national level, some of the potential effects at a local level will depend in part on the level of detail of the schemes as these emerge. A further competition assessment will be carried out as part of drawing up an RIA for the regulations setting out the detailed arrangements and rules for making directions.
In order to consider potential changes to the existing legislation on works in the street, the Department for Transport established in January 2003 a working group on which representatives of both street authorities and utility companies sit. The three relevant utility regulators (OFTEL, OFWAT and OFGEM) were also represented on the group. Three sub-groups were also established to look at the various proposals in more details. Changes to the existing arrangements on the issuing of directions were amongst the proposed measures discussed by the groups.
The Government envisages bringing forward regulations setting out the details of how the revised regime for the issuing of directions will work. Further consultation will be held then with interested parties (including undertakers and local authorities) on the detailed arrangements.
Under Section 56 of the 1991 Act, undertakers who carry out works in the street in contravention of a direction are guilty of an offence and liable, if convicted, to a fine of up to £1,000. Consultation has shown that very few highway authorities pursue offenders at present, mainly because they feel that even the maximum level of fine is too low to justify their taking utilities to court. In order to improve enforcement, the Bill proposes increasing the maximum fine to level 5 (£5,000). This would apply both where the direction applied to the timing and the route of works. Further details on this can be found below in section (iii) of this document.
The detailed arrangements for operating these new powers will need to be set out in regulations. A further Regulatory Impact Assessment will be produced at the time any such regulations are prepared. The Department would then monitor the effectiveness of the new powers to see whether any further modifications are necessary in the longer term.
The Government believes that failure to legislate in this area would mean continued unnecessary delays and congestion on our roads, and that the potential financial costs to parties of amending the existing legislative regime on the issuing of directions would be outweighed by the benefits of reducing disruption caused by works.
Therefore, it is recommended that changes should be made to the existing legislation to allow street authorities, in certain circumstances to direct undertakers as to when works can and cannot be carried out, and the route to be taken. The Government will continue to consult with highway authorities and utility companies during the preparation of the relevant regulations.
Part III of NRSWA places a range of statutory duties on undertakers and (in certain circumstances) highway authorities and others. It also specifies some two dozen offences of failing to comply with these duties, each of which currently attracts, on conviction, a maximum fine of level 3 (£1,000) for each offence. All the offences are criminal ones and are prosecuted via Magistrates' Courts. A list of the existing offences is set out in Table A below.
There have been concerns for some time that the current enforcement regime is not as effective as it might be in ensuring compliance with NRSWA. There is a very high risk that a failure to legislate to improve the enforcement regime that exists under NRSWA would mean that whatever other improvements were made to the controls that highways authorities have over street works on their roads, some utilities might be content to ignore those changes, and choose to risk prosecution. In particular:
Figures produced by the Local Government Association suggest that there have been fewer than 200 prosecutions under Part III of NRSWA over the past 10 years, The average fine in these cases, where the undertaker was found guilty, was some £400.
Given this, the Government believes that failure to improve this enforcement regime would undermine the rest of the street works legislation, and, therefore, proposes to make several changes to the existing enforcement regime.
Under the proposed FPN scheme, where an authorised officer of a street authority (eg a County Council) considered that an undertaker was committing, or had committed, an offence under Part III of NRSWA, he would be able to issue the undertaker with an FPN. The offences in NRSWA which would be liable to fixed penalty notices are set out in the attached Table B. However, Ministers would be able to remove one or more of the offences from the list of those which are liable to FPNs (or conversely add other offences from those set down in Tables A and C) by making an Order. This Order would have to be approved by Parliament or NAW before it could come into force.
The authorised officer of the street authority would have to issue the FPN within a fixed time of the completion of the particular works to which the offence related. Assuming that it did not wish to contest the notice, the undertaker would have to pay the full penalty within 29 days of the day the FPN was served upon them. The full penalty would be set in regulations, but could not be higher than 30% of the maximum fine set out in NRSWA (eg £750, where the maximum fine was level 4 - £2,500). If the offender paid within 15 days of the issue of the FPN, they would only have to pay a discounted rate. Again, the discounted rate would be set in regulations, although it could not be higher than 25% of the maximum fine set out in NRSWA (eg £625, where the maximum fine was level 4).
The details of the FPN scheme which would need to be set out in separate regulations include:
Authorities would, in theory, also be able to issue FPNs for certain offences under the Highways Act 1980. The offences this could apply to are set out in Table D. However, exactly which of the listed offences this would apply to would need to be set down in regulations following the Bill.
The aim of the changes to the enforcement regime is to encourage greater compliance with the various duties under Part III of NRSWA and the Highways Act and to help ensure that those who fail to comply are detected and suitably dealt with. The low number of prosecutions under the existing enforcement regime, coupled with the strong views of authorities expressed in the Government's consultations, makes a convincing case that the status quo is not acceptable.
The various offences under NRSWA cover a wide range of duties including ensuring:
So, an improved enforcement regime should result in works that are safer, and carried out speedily but to a high standard by properly qualified staff. Also, by ensuring that authorities are provided with timely and accurate information on individual works it should be easier for authorities to co-ordinate these works with their own works and works carried out by other undertakers to reduce the disruption that all works cause to road users, businesses and local residents.
The exact scale of the benefits likely to flow from the changes to the existing regime will depend upon how far undertakers that do not at present comply fully with that regime improve their performance. It will also depend upon how far those authorities that currently do not actively pursue undertakers that fail in their duties do so in future.
The proposed fixed penalty notice system for certain offences should encourage street authorities to pursue offenders by providing a simpler and cheaper means of processing the fines, without imposing an unnecessary burden on the courts.
The Government also intends to consider the possibility of authorities' retaining some or all of the fine revenue to offset the cost to them of operating a FPN scheme. It is not necessary to amend primary legislation to allow for this.
Costs incurred as a result of these provisions, are avoidable if utilities and others comply with their statutory duties. Equally, there is no reason why increasing maximum fine levels for offences should increase the cost to street authorities of enforcement and pursuing offenders.
Where contracts had been drawn up in the past with regard to the existing enforcement regime, utilities and others may identify a need to change the arrangements they have with those contractors who actually carry out their works, to deal with any fixed penalty notices that are laid against them.
Any FPN system set up in regulations will need to be tightly drawn, in order to minimise the number of disputes between individual undertakers and authorities over whether offences have been committed or not.
There is also a risk that authorities' and utilities' existing IT systems might need updating in response to the introduction of FPNs, and that that might lead to an initial cost for either or both groups of parties.
In drawing up such regulations, the Government will consult widely with authorities, utilities, and other interested parties, to minimise these risks.
As explained above, the increased costs which higher maximum fines will impose on undertakers and others are avoidable if they comply with the law. Increased fines should not increase the cost to street authorities of enforcing compliance. The Government believes that any increase in unavoidable costs resulting from the introduction of fixed penalties for certain offences, would be more than outweighed by the benefits which would flow from improved enforcement and the raising of the standard of works.
It is not expected that the proposed changes to the statutory duties on undertakers and fines for offences will have a significant impact on competition. This conclusion is reached on the basis that costs for undertakers would only be incurred if they infringe the requirements placed upon them under the legislation. Whilst it is possible that some businesses, particular smaller ones, may incur greater costs in setting up new systems to improve their management of their works, it is unlikely that such costs would be sufficient to have implications for competition.
In order to consider potential changes to the existing legislation on works in the street, the Department for Transport established in January 2003 a working group on which representatives of both street authorities and utility companies sit. The three relevant utility regulators (OFTEL, OFWAT and OFGEM) were also represented on the group. Three sub-groups were also established to look at the various proposals in more detail, including a separate sub-group looking at changes to the enforcement regime. The proposed changes to maximum fines broadly reflect the sub-group's recommendations.
The Department will monitor the effect of the new arrangements on the number of offences detected and dealt with. In particular, it will monitor whether the introduction of fixed penalty notices for certain offences has lead to an improvement in enforcement and whether it would be sensible to convert other existing offences under part III of NRSWA or any of the Highways Act 1980 offences listed in table D into offences dealt with by means of FPNs or to remove some offences from the list of ones liable for FPNs.
The existing enforcement structure has not been effective in ensuring compliance with NRSWA in particular. The Government therefore considers that a failure to improve the enforcement regime that presently exists would jeopardise the impact of the rest of the street works legislation within the Traffic Management Bill. The costs of the provisions are likely to be small in comparison with the benefits that come from better compliance, especially as any increased costs are avoidable if utilities operate within the boundaries of the law.
Given the above, it is recommended that increased maximum fine levels should be introduced and provision made to introduce a fixed penalty notice system for certain