CHAPTER 2 The Scottish Road Works Commissioner
2.1 Legislation
Section 25 of the T(S)A inserts section119A of NRSWA as follows:
"119A Enforcement of sections 118 and 119: imposition of penalties
(1) The Scottish Ministers may, by regulations, make provision for or in connection with,
(a) the imposition by the Commissioner of penalties on road works authorities and undertakers who fail to comply with duties imposed on them by sections 118 and 119 respectively,
(b) the payment of such penalties.
(2) The regulations may include provision for or in connection with-
(a) the notification and enforcement of penalties,
(b) the level of penalties,
(c) appeals against the imposition of penalties including the appointment of persons to hear and determine such appeals"
2.2 Penalties
The imposition of penalties by the Commissioner is applicable to road work authorities and undertakers who regularly and continually fail in their duties to co-ordinate and co-operate. It is not intended that a one-off failure in duty would lead to the imposition of a penalty. (See APPENDIX E).
The level of the penalty is to be set by the Commissioner but regulations will provide that this can not exceed a maximum of £50,000. Payment of such penalties is to be made within 36 days of the issue of such penalties.
2.3 Information acquired by Commissioner
The Commissioner will require and receive reports and/or information to determine whether or not there is a likelihood of non-compliance with sections 118 and or 119 by the road works authority or undertaker.
The Commissioner will monitor the performance of both the road works authorities and the undertakers in carrying out the duties in compliance with sections 118 and 119 respectively.
2.4 Compliance with S118 of NRSWA
The Commissioner will consider whether there has been a non-compliance with section 118 by the road works authority if they fail in their general duty to co-ordinate the execution of works in the roads for which they are responsible. The Commissioner will consider the systems in place to ensure that works are co-ordinated with the aim of ensuring the interests of safety, minimising the inconvenience to persons using the road and protecting the structure of the road and the apparatus in it. Road works authorities who fail to respond to requests for information or fail to attend meetings may be considered to be not co-operating.
2.5 Compliance with S119 of NRSWA
The Commissioner will consider whether there has been a non-compliance with section 119 by an undertaker if they fail in their general duty to co-operate with the road works authority and other undertakers as regards the execution of road works. The undertaker will be required to demonstrate that they comply with statute and Codes of Practice, by entering the relevant information into the SRWR. Undertakers who fail to comply with reasonable conditions applied by the road works authority or fail to respond to requests for information or fail to attend meetings may be considered to be not co-operating.
2.6 Investigations by Commissioner
Where the Commissioner has reason to believe there has been non-compliance; the Commissioner will require road works authorities and undertakers, as appropriate, to provide additional information and evidence to allow him to determine whether or not there has been non-compliance.
2.7 No evidence of Non-Compliance
Where the Commissioner finds there is no evidence of non-compliance, no penalty shall be applied and the commissioner shall write to the complainant, the road works authority and the undertaker, as appropriate, explaining his reasons for his decision.
2.8 Evidence of Non-Compliance
Where the Commissioner finds non-compliance is established he will write to the road works authority and / or undertaker. The Commissioner will make a direction requiring an action plan for improvement from the non-compliant organisation and state precisely what is required for improvement and the time period for that improvement. The Commissioner will state what evidence will be required to demonstrate the improvement.
2.9 Procedure for Implementation
If within the time period for that improvement the Commissioner is not satisfied that the specified improvement has been achieved, a notice will be dispatched to the chief officer or equivalent of the road works authority or undertaker, at their registered office, applying a penalty. The notice will state the powers being used and detail that there has been non-compliance with statutory requirements. Additional information and evidence may be attached to the notice in support. The notice will state the level of the penalty, to whom it is to be paid, the method of payment and the date by which it is to be paid.
The notice will also set out the procedure for appealing against the penalty.
2.10 Appeals against the Commissioner
These are dealt with in Chapter 6 of the Code of Practice for Dispute Resolution and Appeals