Effective road and traffic management

Written evidence from the Joint Authorities Group (UK) (ETM 42)

1 The Joint Authorities Group (UK) [JAG(UK)] welcomes the opportunity to provide written evidence on the prevalence and impact of traffic congestion and likely future trends and, in particular, the effectiveness of legislative provisions for road management under the New Roads and Street Works Act 1991 and the Traffic Management Act 2004.

2 JAG(UK) represents all 200+ Street and Road Authorities in Street and Road Works matters relating to the New Roads and Street Works Act: 1991 and the relevant parts of the Traffic Management Act 2004.

3 JAG(UK) is the mechanism through which Street and Road Authorities are represented on the Highway Authorities and Utilities Committee(UK) [HAUC(UK)] which in turn advises the Department for Transport and the Government in Street and Road Works matters.

4 The effectiveness of legislative provisions for road management under the New Roads and Street Works Act 1991 and the Traffic Management Act 2004.

5 JAG(UK) would draw the Committee’s attention to the Halcrow Report: Evaluation of Traffic Management Act 2004 dated 16 August 2010 which was commissioned by the Department for Transport.

6 Representatives from JAG(UK) were interviewed by Halcrow on 18 November 2009 at which JAG(UK)’s basis as to the effectiveness of the legislation provisions for road management under the New Roads and Street Works Act 1991 and the Traffic Management Act 2004 was presented. (A copy of the relevant section is attached – Annex A)

7 This basis follows:

7.1 JAG (UK) believes that the Traffic Management Act (TMA) was borne out of frustration with the inability of stakeholders to embrace the requirements and spirit of the New Roads and Street Works Act (NRSWA). Although the provisions NRSWA were enough to deliver successful management of works in the highway, these were not fully embraced by authorities nor accepted by undertakers.

7.2 The TMA has been introduced to enhance the NRSWA as a mechanism to improve the management of activities on the road.

7.3 Unfortunately, there has been a delay in the implementation of a number of provisions within the TMA and the original NRSWA which would have improved further the management of activities on the road.

7.4 One example of the delay is the updating of the Inspections Code of Practice. The present Code of Practice was introduced prior to the TMA and does not allow for the sample inspection of street works on the highway in respect to overrunning works or permit conditions; permits being introduced in the TMA. Updating of the Code would also introduce more effective procedures with dealing with poor safety measures and defective reinstatements both of which are a major factor in the disruption of the movement of all traffic on the highway.

7.5 Fixed Penalty Noticing (FPN) was also introduced in the TMA. Although the FPN system is of a sound basis and has improved the timeliness and accuracy of information provided to a highway authority to allow him to carry out his coordination duty more effectively, the system is flawed in that non-payment of an FPN cannot be pursued. Where payment has been made, often the cost (and an additional administration fee) is passed onto the undertaker’s contractor; this does not encourage the undertaker to take on his responsibilities in respect to complying with the legislation.

7.6 One area that is of concern and that does have a direct bearing on the effectiveness of a Local Traffic Authority to carry out its Network Management Duty is that of the availability of being able to monitor the performance of undertakers in complying with the legislation. Within England, highway authorities use proprietary software to manage their Street Works Register; one of the main tools for the effective management and coordination of works on the highway. The proprietary software is supplied by a number of software houses and, due to inconsistencies and short comings in the legislation, this has lead to a number of compatibility problems that the software houses are not willing to address without further clarification of the legislation. This is leading to frustration amongst highway authorities as they are not able to collect full and meaningful data as to the performance of the legislation on their respective highway networks. One solution to this would be a central/regional street works register; a central register in Scotland has shown that accurate performance data can be collected and used successfully.

7.7 However, JAG(UK) does support the permit legislation introduced in the TMA. In the areas where this legislation has been introduced it has been found to be very effective in improving the behaviour of both undertakers and other bodies working on the highway in complying with legislation with the resulting increased effective management of a permit authority’s highway network.

7.8 Permit schemes are only operating presently in three areas in England with another four or five areas either considering a scheme or are in the process of introducing a scheme. The legislation is presently very onerous for highway authorities to prepare schemes in both time and cost and this is one of the main reasons that there are so few schemes in operation at present. This is disappointing as permit legislation is seen as being the ultimate tool in improving the effectiveness of road management.

8 As noted previously, evidential data, that would support the above, is difficult to obtain due to the differing street works management systems and the inability to fully manage the system developers output. JAG(UK) is currently working with the Department for Transport to try and redress this by bringing in a standardised reporting process and performance monitoring regime. Notwithstanding this, specific evidence can be gathered from highway authorities on an individual basis.

9 In respect to the legislation, two sections of the NRSWA that have not been enacted are those of s73A – E (introduced in the TMA) and s78.

10 S73A – E relates to contributions by undertakers to the costs of re- surfacing a road and s78 to the contributions by the undertaker to costs of making good long term damage.

11 It is the latter section that is of major concern and JAG(UK) would draw the Committee’s attention to the Transport Research Laboratory’s Published Project Report PPR386: A Charge Structure for Trenching in the Highway dated March 2009 which was commissioned jointly by Transport for London and County Surveyors’ Society. (Copy attached for information.)

12 This report shows the impact of premature deterioration of highways as a result of utility trenching and the action by highway authorities in undertaking additional maintenance. This in turn has a detrimental affect on local authority budgets and increases levels of cost and inconvenience to the public and in particular the road user.

13 The provision in s78 of the NRSWA allows for the Secretary of State to make regulations requiring undertakers executing street works to contribute to the costs incurred or likely to be incurred by a street authority. As this section has never been enacted, highway authorities are having to return to rectify deteriorating roads on a more regular basis, due to insufficient funding, thus adding to further disruption to the highway user and added pressure on the public purse.

14 In conclusion, it is frustrating that it is difficult to get consistent evidential data that will be able to monitor the effectiveness of street works legislation in respect to road management. It is hoped that the present work by highway authorities and undertakers, with the assistance of the Department for Transport, will be able to provide system changes that will be able to show the actual effect that the legislative provisions have on road management.

Appendix A – Extract from Halcrow Report: Evaluation of Traffic Management Act 2004 dated 16 August 2010

6.1 Consultation with Joint Authorities Group ( UK )  

JAG (UK)’s belief is that the TMA was borne out of frustration because of the inability of stakeholders to embrace the requirements and spirit of the NRSWA. It considers the provisions of NRSWA were enough to deliver successful management of works in the highway but these were not fully embraced by authorities nor accepted by undertakers.

JAG (UK) hoped, and has promoted the TMA as a vehicle for driving improvement in managing activities on the network. However, 5 years down the line frustration exists at the protracted legislative programme and the delay in implementing provisions. An example of this would be the new Inspections code of practice. JAG (UK) finds frustration in the part the Department plays in the working group and the delay in turning the group’s aspirations into draft regulations; a fundamental stumbling block in progress. There has been a lack of continuity in the Department resources resulting in repeated learning curves thus delaying progress and, as a consequence, allowing changes in political direction to water down parts of the proposed code.

JAG (UK) is frustrated that the legislation has failed to deliver the aspiration that the undertaker should be responsible for its activities. The FPN system is seen as being flawed in that non-payment of an FPN cannot be pursued and where payment is made then undertakers are simply passing the cost through to the contractor and, potentially, profiting by attaching administrative costs. This is viewed as a perverse behaviour and an example of where the legislation has failed to compel the undertaker to ‘get it right’.

JAG (UK) would like to see a more joined up approach across government departments to the development of legislation that would help align the conflicting requirements of network management and street works control requirements with the regulation of undertakers.

JAG (UK) does not believe stakeholders have invested enough in staff, systems and training to deliver the core aims of the NRSWA. It also feels that undertakers invest to avoid rather than embrace the requirements. The almost inevitable squeeze on local authority budgets may result in even less resource for the management of street works that could well further exacerbate the problems. Consequently everything works on compromise. An example is the working groups established to develop codes of practice. Membership is made up of authority and undertaker representatives with diverse aspirations. Inevitably this leads to the compromise with neither side being truly satisfied with the outcome.

A specific example of the legislation not supporting the aspiration is in the area of first pass reinstatements. The Horne report recommended first pass reinstatements as a fundamental requirement of legislation. However NRSWA does not mandate this, but merely supports it providing the undertakers the opportunity to temporarily reinstate, which does not help with maintaining the integrity of the pavement or reducing unnecessary disruption.

JAG (UK) is supportive of permit schemes and believes it is this legislation that will be most effective in driving improved behaviour from undertakers. However it believes there could be many more schemes in operation if there was a greater interest and priority on TMA issues at a national level and if the process for applying for a permit scheme was simplified.

JAG (UK) constantly referenced the delay in the programme of secondary legislation as a barrier to progress and cited the retraction of resource by the Department as a major contributor. This delay is resulting in the TMA becoming an incomplete jigsaw with momentum being lost. Ultimately, JAG (UK) has the impression that there is a lack of commitment from the Department which is holding back real progress.

JAG (UK) provided comment on the individual NRSWA provisions of the TMA that have been commenced, although an over-arching concern was that government is not joined up in respect to the drivers in the TMA and NRSWA that focus on the better management of the network and those that work on it conflict with the drivers the undertakers face from their regulators. It does not believe self-regulation will work as there are too many undertakers operating in the arena. It believes the commercial responsibility these companies have to their shareholders will always outweigh the desire to pay charges that would be voluntary if covered by self regulation.

With regards to the individual provisions, JAG (UK) commented as follows:

· Increased fines

These provided for an initial focussing of minds by undertakers but the fact they can be passed on to the contractor provides for little, or no accountability from the undertaker. Here is also a disincentive to the authority to prosecute because the cost is prohibitive and any successful prosecution sees the fine go to HM Treasury rather than being reinvested in the authority.

· Section 54 & 55

The ability to cancel or postpone works is seen as positive in respect to the administration of noticing systems, but it has had no effect on works planning practices. The practice of multiple works noticing continues and authorities are still left wondering where undertakers may be on the network on a day to day basis. It is believed the EToN Technical Specification does not deliver what the regulations and coordination code of practice intended in this respect.

· Section 56 clarification

This is believed to have been a suitable clarification of the definition but JAG (UK) accepted the power is rarely used in a formal way because of informal dialogue and agreements that occur between authorities and undertakers on a day to day basis. It did again refer to the ongoing issues authorities face with noticing practice, citing weekend working as a big issue. It is felt that in modern times, where companies operate on a 7 day working week, that the NRSWA definition of the working day should be amended to reflect the same.

· Section 56 (1)A

This is believed to be an important power but JAG (UK) again accepts it is rarely used. This power now provides an opportunity to clear diversion routes of works if an incident occurs on an adjacent route, something that can happen in relation to incidents on motorways and trunk roads, although highlighted that the timescales proposed by the Highways Agency in such instances are not always feasible.

· Section 56 (A)

It was accepted that this power was very rarely used as there are few major infrastructure schemes undertaken and often this requirement is addressed in planning conditions.

· Section 58

Authorities use the section 58 powers widely and consider the concept a good one. However the power is considered to be ineffective due of the many exemptions that exist. One improvement that is thought would be of benefit would be to include the ability to dictate the extent of reinstatement or tie it into the resurfacing regulations when they are developed.

· Section 58 (A)

This power has not been used to any great extent, although JAG (UK) considers this a powerful option. However, JAG (UK) observed that there are currently few major infrastructure projects being undertaken. It was cited that if there was the potential for the authority to resurface during the potential embargo period then it is unlikely this power would be used.

· Section 59

JAG (UK) noted this widening of the definition of relevant activities and suggested authorities vary the activities registered in accordance with their own requirements. Skips, scaffolds and building materials were mentioned specifically, and it was felt that the legislation allowing FPNs for such activities has continued to be deferred due to other issues being made a priority. However, an example was cited where an authority has implemented a scheme for skip and scaffold overstay charges that achieves the same result without the legislative support and it was suggested that commencing the legislation could have a detrimental effect on such initiatives.

· Section 70

This provision is seen simply as a formalisation of general practice. JAG (UK) cited examples where LTAs have seen an improvement in the receipt of such information it was deemed that the impact, in general, has been neutral.

· Section 95(A)

JAG (UK) cited the introduction of FPNs as a key provision to address the lack of response to NRSWA and also as one of the provisions which has had the greatest impact.

JAG (UK) believes FPNs have, in general, had a positive impact. However, the fact that FPNs are not a debt that can be pursued, leaving prosecution as the only recourse for an authority is seen as a limitation. This has often deterred an authority in giving FPNs, particularly where they consider that Magistrates would see the issue as trivial. JAG (UK) consider that powers would be improved if the fine was a penalty charge notice, that is the offence was decriminalised in a similar way to those offences covered in Part 6 of the TMA.

JAG (UK) also cited the inconsistency between the levels of penalty undertaker’s face for similar offences. The example given was a comparison with section 74 charges. When an undertaker overruns works it can be charged up to £2,500 per day. However if the same undertaker begins works without a notice, or starts before the notified start date it will only receive a £120 (or £80 if paid early) FPN. However, the disruption caused is the same. JAG (UK) does not think this is right and does not drive the right behaviour.

It is believed that FPNs have resulted in an improvement in the timeliness of notices. However, JAG (UK) questioned what is considered acceptable JAG (UK) believes that the target should be 100% accuracy as this is what legislation requires, however it believes the industry regulators accept 95% accuracy or, to put another way, the regulators accept a 5% failure by undertakers: this could be seen as condoning undertakers to commit NRSWA offences. JAG (UK) highlighted that whilst there was initially a surge in the improvement of noticing as a response to FPN schemes, this has levelled off. It was noted that authorities are restricted by a lack of resource to drive further improvements in performance.

JAG (UK) is sceptical about whether the provisions have been implemented robustly and that the reason is the lack of perceived benefit to authorities or the travelling public. There is also a perception that a link to performance management needs including in regulations. JAG (UK) believes this is an area where more consistency between government departments. An example provided by JAG (UK) is in relation to inspections.

JAG (UK) cited that, with regards to parity, the legislation as it stands is not driving the right change (e.g. no requirement to notice local authority works). The requirement to place information on the register is too woolly and is open to interpretation; the industry understands the sentiment but needs positive wording to help drive the process forward.

Halcrow / TRL commented on the poor response from sample authorities to the request for management information from the systems. The information requested was considered to be normal management information that any authority would need to undertake effective management and coordination. It was expected that such information would be available at ‘the press of a button’. This proved not to be the case and JAG (UK)'s view was sought.

JAG (UK) confirmed its frustration with systems and the difficulty in acquiring robust or standardised management information. This was highlighted by a JAG (UK) exercise to collate performance data in relation to Section 74, whereby the lack of standard reporting between authorities led to difficulties. Requirements for variations to existing reports can lead to charges from system developers. JAG (UK) believes the system suppliers (EDG) have had too much of an influence. The systems and EToN Technical Specification should supply what the regulations and community require to facilitate effective network management, but the perception is that suppliers are able to dictate policy based on their priorities for software delivery. For example, assumptions that were made when the EToN Technical Specification was written have led to amendments to the codes of practice. JAG (UK) considers this to be back to front. JAG (UK) highlighted the issues surrounding the development of the EToN Technical Specification and street works systems as a fundamental problem since authorities rely on this information to manage their network.

Steps must be taken to get stakeholders to embrace the legislation and drive system suppliers to deliver the solutions. One solution would be the development of a central street works register. It is accepted this was tried and discounted in the late 1990s; however, this was a fundamental recommendation of the Horne report and has proven to be successful in Scotland.

JAG (UK) considers performance management is resource constricted and would encourage the Department to deal directly with the funding issue or take steps to protect funding streams.

JAG (UK) accepts that, whilst individual authorities do measure performance collectively there is some work to do. However, they referred back to the issue with data quality resulting from the systems and the different interpretation taken by different suppliers. It is essential that the system suppliers are engaged to provide the solutions to meet the needs of the community rather than being able to influence policy.

JAG (UK) has been influential in the development of the HAUC (UK) advice note on performance management. However, concern was expressed that since publication certain parties are undermining the philosophy of authorities identifying what is important to them (in consultation with stakeholders) that is promoted by the advice note in favour of developing a set of national indicators.

JAG (UK) also commented on the difficulty authorities face when dealing with the Highways Agency. The Highways Agency will not register its own works and, whilst authorities are only obliged to place data on the register, it is felt the Highways Agency should consider the advantages it would have if it were to do so. The strategic road networks are the busiest roads that pass through many authorities and the impact of works and incidents and subsequent diversion onto an authority’s highway network can have an immense effect in increasing disruption.

JAG (UK) suggest that there is a need to undertake a review of all legislation to ensure consistency between control and regulatory. There is also a need to bring forward legislation to deal with long term damage. This is seen as a top priority for JAG (UK) which will assist both local and national government in funding issues. JAG (UK) stated that the public purse is picking up a too higher proportion of the costs and a balance needs to be found. Placing more costs into the private sector increases customer choice.

Specifically, JAG (UK) mentioned the following as aspirations they have for improvement:

· Development of legislation to enable authorities to proactively manage active works (100% category A inspections).

· Simplification of the requirements for Permit Scheme applications.

· Introduction of a different process for the development of Codes of Practice. The current working group process only aids the compromise solution.

· Preparation of a structured business plan including a robust business case that has the buy in of all stakeholders – the Department / local authorities / undertakers, with an agreed timeline which is adhered to by all.

· Consideration of a central street works register.

February 2011