Conclusions from meeting held 13 September 2004
The following note represents the conclusion of the meeting held to consider an agreed approach
to Section 74 in the light of the appeal court judgement as instructed by HAUC(UK) on 14 July
2004. The note does not attempt to record detail of any discussion or debate or set out
differences in interpretation. Only those circumstances under which Section 74 charges are
agreed to be applicable are identified. Where only one party held a view or interpretation (such
as the wider the application of charges) this has been excluded. Furthermore, the note attempts
to reflect the agreed interpretation of the court judgement and does not reflect the intention of
the scheme prepared by the S74 working group
It is therefore recommended that this note should be used as interim advice to be issued by
HAUC(UK) following judgement and pending further works by S74 group and revised legislation
Notices and processes
The notice, inspection and monitoring systems and processes have to be operated on the
understanding that all parties are intending to operate correctly and honestly.
Notices submitted have to be assumed to be accurate in content unless challenged (with
evidence).
Late submission of a notice alone does not require supporting data to substantiate the content of
the notice.
The sanction for a late notice is criminal action.
Notices which are challenged for incorrect content or are subsequently revised should have
supporting data provided.
A challenge to notice data should consist of at least an eyewitness inspection and inspection
record completed by a member of the highways staff. Photographic evidence is not necessary,
although always useful.
If an error is identified by an undertaker this should be rectified at once.
If notices are found to be erroneous on an unacceptable proportion of occasions a meeting
between (senior) managers should be held to establish an action plan.
If improvement is not achieved evidence may be required to support all notices.
Where evidence is available to demonstrate that sites have not been cleared on the date given in
the notice, charges shall apply for the extended period beyond the estimated duration.
If an undertaker wishes to apply a works clear / closed date other than that contained within the
first S74 notice such a change must be substantiated with evidence.
Evidence to be in sufficient form to eliminate all ambiguity.
Charges
The broad interpretation concluded that charges are only applicable when site works continue
beyond the estimated duration stated in the notices.
It is recommended that charges are not levied where individual cones / signs are found on site
and do not affect the operation of the highway. However, where materials etc are retained on
site to the detriment of highway users S74 should apply. Furthermore, incorrectly completed
reinstatements should primarily be dealt with under the defect procedure rather than S74,
although charges under the latter will apply in accordance with the following general approach.
Unused days from the original works period may be carried forward as credit for remedial works.
Where the total accumulated duration of works extend beyond the greater of the prescribed
period or estimated duration these days are chargeable under S74. (Give examples including
multiples and late started daily whereabouts)
Subject: RE: S 74 Summary of meeting with Utilities
Dear Colleague
We are very unhappy about the contents of this note which would appear to act directly against
the intended purpose of the implementation of Section 74 and defends the poor operation of
utilities and their contractors in operating NRSWA.
1) Many of the issues with notification problems are, as the Judge pointed out, offences and if
necessary should be processed through legal action. (Not criminal action as propounded in the
note - I suspect most frustrated HA staff have been tempted on occasions!)
2) Any item left on the highway constitutes an obstruction and could prejudice public safety. Once
again, it is suggested that HA staff should act as unpaid supervisors for utilities. Our view is that
any item obstructing the highway is liable for charging under S. 74.
3) We are concerned that 'unused' days can be credited forward in respect of remedial works.
Our rationale being that to complete a reinstatement correctly would, in almost 100% of cases,
take no longer than undertaking a defective job. Why should the travelling public have to be
unnecessarily inconvenienced by the subsequent remedial action.
It is accepted that the Regulation does not assist in this regard and is perhaps something that will
be re-dressed in the forthcoming legislation.
Once a works clear date is submitted, the length of time on site should, by definition, be set as
being the 'reasonable period’. Prescribed periods or periods set by estimated end dates would
then be irrelevant.
As an aside, there are numerous examples of utilities giving exaggerated time scales and the
challenge, conciliation, arbitration process is cumbersome to properly and effectively manage
these situations.
If you support our views perhaps you would respond to Peter Goode in the hope that the note can
be re-considered and modified accordingly to give greater backing to HA's in managing the
operations of utilities on the highway.
David
Lambert
Street Works Manager
E-mail:- mailto:david.lambert@bromley.gov.uk
Subject: RE: S 74 Summary of meeting with Utilities
David
The following is copied from my reply to Peter Dixon which I suspect will reach you anyway
judging by the circulation lists. The same applies to your comments largely and it is very
encouraging to see the strength of feeling amongst you.
I suspect that I had not properly explained the context of my paper and this was indeed a concern
because doing so was very difficult and avoiding it being taken out of context virtually impossible as probably proven by some of the comments received so far. It is essential that the comments in
the paper are seen purely as an attempt to assess the judgement and not the intentions of the
scheme or indeed the behaviour of the participants etc.
"Many thanks for your comments. I have had many and that is helpful. The overwhelming view is
that I should avoid reporting back to HAUC as requested by them since the S74 working group is
to reconvene in the afternoon of that meeting (13 Oct) and to also have the paper available could
be prejudicial to the discussions despite the fact that there should be independence between the
interpretation of the judgement and the intention of the scheme and any revision agreed by the
group.
Further, your comments reflect the feelings held about the manner in which many utilities have
addressed S74 although these are not wholly relevant for the exercise undertaken - but see
above. I have of course also had 'evidence' presented that suggests that the approach used by
some authorities has not helped the cause. However, we shall bear this in mind when going
forward with DfT.
Thanks again"
Peter Goode
Nottingham City Council
Highway Management