In Scotland, utility works in a road are governed by Part IV of the New Roads and Street Works Act 1991 (NRSWA), which uses the words "road works" and "undertaker". The works are overseen by the Scottish Road Works Commissioner, who keeps the Scottish Road Works Register (SRWR), monitors how road works are carried out, promotes compliance and good practice, and can inspect and issue compliance notices. The Roads (Scotland) Act 1984 covers other works in roads (see the previous entry) and expressly leaves Part IV works to NRSWA.
The legal duties sit with the undertaker: a person with a statutory right to place apparatus in a road, or a person permitted under section 109, who is generally treated in the same way. If you are a contractor working for an undertaker, agree in writing who enters the notices, who holds the reinstatement quality plan and who supplies the qualified supervisor and trained operative, because each is a separate offence if missed.
- The Commissioner's role
- Monitors the carrying out of works in roads in Scotland, promotes compliance with NRSWA and promotes good practice (Transport (Scotland) Act 2005, section 17). From 1 April 2024 the Commissioner can also inspect and issue compliance notices
- The register
- The Commissioner keeps the SRWR (NRSWA section 112A). Undertakers and road works authorities must be able to enter notices in it. Access fees are set by regulations and are apportioned by share of notices entered
- Information you must give the Commissioner
- On request, information relevant to your functions and activities that the Commissioner reasonably asks for (Transport (Scotland) Act 2005, section 18)
- Advance notice
- In prescribed cases you must give the prescribed advance notice of road works, by entering the information in the SRWR, and then meet the co-ordination requirements. Failure is an offence with a fine up to level 4, which is £2,500 (NRSWA section 113)
- Notice of starting date
- Before breaking up or opening a road, or tunnelling or boring under it, give at least 7 working days' notice (or the prescribed period) to relevant authorities and anyone with apparatus likely to be affected, and enter a copy in the SRWR. Starting without notice is an offence with a fine up to level 4 (£2,500). The notice lapses if the works are not substantially begun within 7 working days of the starting date (section 114)
- Notice that works have started
- Give notice of the date and time works began within the prescribed period. The 2023 Regulations set this at two working hours, and "working hours" means the period from 8 am to 4.30 pm on a working day. Failure is an offence with a fine up to level 3, which is £1,000 (section 114A)
- Emergency works
- Give notice as soon as reasonably practicable, and in any event within two hours (or the prescribed period) of starting. Failure is an offence with a fine up to level 4 (£2,500) (section 116)
- Safety
- Guard and light every part of the road that is open or obstructed, and place the traffic signs reasonably required, following the Safety at Street Works and Road Works code of practice. Failure is an offence with a fine up to level 5, which is £5,000 (section 124)
- Qualified people
- Works that break up the road, or involve tunnelling or boring, must be supervised by a person with a prescribed supervisor qualification, and at least one person with a trained operative qualification must be on site whenever the works are in progress. The duty continues until the road is reinstated. Failure is an offence with a fine up to level 5 (£5,000) (section 126)
- Reinstatement
- Begin reinstating as soon as reasonably practicable after any part of the works, carry on with dispatch, give the prescribed notice when the reinstatement is finished stating whether it is permanent or interim, and complete a permanent reinstatement within six months of an interim one. Failure is an offence with a fine up to level 5 (£5,000) (section 129)
- Guarantee period
- For reinstatements completed on or after 1 October 2023 you are responsible for the reinstatement for six years from completion. For earlier works the period stayed at two years, or three years for deep excavations (2023 Regulations)
- Reinstatement quality plan
- Before starting works that involve breaking up a road, tunnelling or boring, or any other reinstatement, you must have entered in the SRWR a plan approved by the Commissioner, either for the specific works or a general plan for works like them, or a notice confirming that an approved general plan already applies. Failure is an offence with a fine up to level 5 (£5,000) (section 130A). If the Commissioner asks you for a plan, you must enter it in the SRWR by the date the Commissioner's notice sets, which must be between 30 and 90 days after the notice is entered in the SRWR. You must keep an approved plan under review for six years from approval (2023 Regulations)
- Apparatus records
- Enter details of apparatus in the SRWR as soon as reasonably practicable after you place, move, remove or discover it. Failure is an offence with a fine up to level 5 (£5,000), and you are liable to compensate anyone who suffers loss. It is a defence to show you and your contractors took all reasonable care (section 138A). Anyone who finds unrecorded apparatus must take reasonable steps to tell its owner (section 139)
- Compliance notice
- For a breach of a listed duty the Commissioner can issue a compliance notice giving you at least 28 days to put it right. You have 21 days from its issue to appeal to the sheriff. Failing without reasonable excuse to comply is an offence with a fine up to £50,000 on summary conviction, or a fine on indictment (sections 153A to 153G)
- Fixed penalties
- A road works authority's officer can give fixed penalty notices for listed offences, capped at 30 per cent of the maximum fine, payable within 36 days, with a discount of up to 25 per cent of the maximum fine if paid within 29 days (Schedule 6B). Section 112 of the Transport (Scotland) Act 2019 will let the Commissioner give a fixed penalty notice of up to £100,000 for failing to comply with a compliance notice, but it is not yet in force. Until it is commenced, that failure is prosecuted under section 153G
What you must do
- Get authority to be in the road. Work under your statutory right or a section 109 permission. Placing or opening a road otherwise is an offence (see the previous entry).
- Plan your notices. Enter advance notice where it is required, give the starting-date notice at least 7 working days ahead (or the prescribed period), and record when works actually start and finish in the SRWR within the prescribed periods.
- Register your reinstatement quality plan. Have a Commissioner-approved plan entered in the SRWR before you break the road. The Commissioner approves a plan only if it shows you are competent to reinstate safely and effectively and have quality control procedures that achieve a sufficient standard.
- Staff the site correctly. A registered supervisor and trained operative must be in place. The Scottish Qualifications Authority keeps the register, certificates are valid for five years and can be renewed, and a person is treated as qualified for two months after a certificate is issued while registration catches up (2023 Regulations).
- Reinstate and notify. Reinstate to the specification in the Specification for the Reinstatement of Openings in Roads, tell the Commissioner in the prescribed way whether the reinstatement is interim or permanent, and finish any interim reinstatement within six months.
- Watch the register and cooperate. Use your best endeavours to cooperate with the road works authority and other undertakers on safety, limiting inconvenience and protecting the road structure. You must have regard to the information in the SRWR and comply with any direction the Commissioner gives you under section 119.
- Expect inspections. Commissioner inspectors have powers to enter, inspect and require information. Keep your notices, plans, qualifications and reinstatement records where you can produce them.
The codes of practice that underpin these duties include the Code of Practice for Co-ordination of Works in Roads, Safety at Street Works and Road Works, the Code of Practice for Inspections and the Specification for the Reinstatement of Openings in Roads, all published by the Scottish Road Works Commissioner.