Utility Week Live, 22nd - 23rd May 2018

UTW

Penalties, permits and incentives

With streetworks on the rise, how can utilities and local authorities best collaborate?

Utilities opened the road 2.5m times last year – up from 2.2m in 2015, according to the latest ALARM (Annual Local Authority Road Maintenance) survey, which is carried out by the Asphalt Alliance. As streetworks continue to spiral in line with population growth and infrastructure demand, ministers have decided to act. This summer, the government is due to kick off a review of how its system for issuing permits to utilities is working.

Ministers are acting because the volume of road works being carried out by utilities continues to grow. And these pressures are only likely to intensify during the next few years with the population projected to grow to 76m by 2047, which means a lot more energy and water being piped into homes.

First a quick history lesson. The legislative framework governing roadworks dates back to the 1991 Traffic Management Act (TMA), introduced by John Major’s government as part of a broader initiative to cut traffic congestion, the highlight of which was the much mocked ‘cones hotline’.

Under the TMA, utilities only had to give highways authorities notice that they wanted to do works. By the early Noughties, the number of companies allowed to dig up roads had ballooned to more than 150, causing a ‘significant growth’ in the levels of disruption caused by such works, according to a recent report by the House of Commons Library.

The then Labour government beefed up highways authorities’ powers over streetworks. These included allowing councils to issue permits for where and when works could take place and longer embargoes to protect repeatedly dug up streets.

Where a permit scheme is in operation, a utility company has to book the street for a specified period if it wants to carry out works. Highways authorities can attach conditions on how the work is carried out and how long it should last for. Since 2012, councils have been free to introduce permit schemes without having to secure the approval of the Department for Transport first. Councils have also gained powers to introduce lane rental schemes to discourage work on busy roads during daytimes (see box).

streetworks

The permit regime is by no means universal even now. Across the whole of the south west, no authorities have gone down the permit route.

Nigel Myers, network expansion head of streetworks at Virgin Media,, says that out of the 174 highways authorities where his company works, just over half (96) operate a permitting system.

Steve Burley, streetworks strategy and compliance manager at Anglian Water, says the permit regime can be helpful. “There is more co-ordination and communication with highways. Instead of us just putting in a notification and doing the job they come back to us if they want to change dates.”

However one of the big complaints from the industry about is the inconsistent way that permit schemes work.

Thomas Ward still sees says ‘big variances’ across the country in his work as a solicitor specialising in streetworks disputes.

“You can have two neighbouring authorities who will apply the legislation and regulatory functions in completely different fashions so there will be a complete absence of consistency,” says Ward, who is head of business defence and dispute resolution at the Ipswich-based law firm Olivers Solicitors.

“Neighbouring authorities will provide two set of requirements for identical works. Scale that up and larger utility companies will be working with 100 plus different interpretations: it becomes very difficult.”

Virgin’s Myers says that part of the problem is that the TMA itself is open to interpretation, which leads to variations in how it is implemented. And highways authorities hold the whip hand when deciding whether permits should be issued.

Anita Solanki, head of street works policy at contractor Kier’s utility business, says: “You are stuck between a rock and hard place trying to deliver for the customer and complying with the rules. If you don’t meet you those (conditions), you don’t get your permit granted.”

These gripes are echoed surrounding the way councils exploit their charging powers.

Since 2010, governments have increased the fines that highway authorities may impose for over-running works. For the busiest streets, the

maximum councils can charge is £5,000 a day during the first three days of overruns. Thereafter, the fine rockets to £10,000 a day.

prosconsWard says “Authorities have been placed under pressure by central government to look to their own resources and central government has provided local authorities with the means of providing a revenue stream from works they undertake.”

Burley argues that highways authorities are increasingly nit-picking about what they can charge for. “Charges were bought into make sure that sites were cleared and signs and cones removed but some highways authorities are laying charges if we’ve left a stain on the road.

“The charges don’t reflect the disruption caused. They’re no longer being used for what they were designed for which was to keep traffic flowing, they’re being used as a revenue stream.”

David Latham, highway policy and inspections manager at Kent County Council, insists though that local authorities not using utilities as cash cows.

“If we charge, we will provide the resource. A contribution from the utilities helps with that equation.

“A majority of authorities act in a responsible way. It’s always the few that push their luck a bit that cause a perception of a poor reputation.”

Latham, who is also co-chair of HAUC (Highways Authorities and Utilities Committee) England, says the utilities industry must understand the pressures councillors face from constituents fed up with delays.

A bit of stability is what people want, rather than wheezes like former transport secretary of state Sir Patrick McLoughlin’s plan to introduce seven day a week streetworks, which was quietly dropped by his successor Chris Grayling last month (March).

Ward says the last thing that the streetworks scene needs is fresh legislation. “We have a lot of legislation and it doesn’t work. Some legislation could do with being refined but there is uncertainty about what existing legislation can do and uncertainty about how it should be applied.”

Kent’s Latham argues that it is in the interest of both highways authorities and utility companies to ensure that there is little disruption as possible.

‘What a utility does impacts a highway authority and what a highway authority does impacts on a utility: we all stand or fall together.”

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The best industry exhibition I have ever been to. Thought provoking, interesting, good networking, with a positive feel to the whole event… it was excellent!

Jacob Tompkins OBE, Managing Director, Waterwise