NRSWA S68(1) - help needed to define "reasonable facilities" in this context

[Comfy]

Hi all,

This is probably a niche area of law, and definitely isn't consumer law, but some of you may have an opinion based on the terminology used. Hopefully the terminology used in NRSWA s68(1) "reasonable facilities" is used in other areas of law that you're very familiar with, which may provide a framework for understanding its meaning in s68.

New Roads and Street Works Act 1991 (NRSWA)
68 Facilities to be afforded to street authority.
(1)An undertaker executing street works shall afford the street authority reasonable facilities for ascertaining whether he is complying with his duties under this Part.
(2)An undertaker who fails to afford the street authority such facilities commits an offence in respect of each failure and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

The Part which s68(1) refers to is Part Three of NRSWA. This section is STREET WORKS IN ENGLAND AND WALES. There are dozens of sections in Part Three, setting out duties for undertakers of street works (commonly known as Road Works, and done by gas, electric, water companies etc), including safety, noticing, qualifications, reinstatement, unreasonable delays etc.

s68 seems to be there to put an obligation on undertakers to prove their compliance with the other sections (if it's not that, I don't see what else it is).

Any help will be most appreciated!

Thanks in advance

[atticus]

surely s68(1) imposes an obligation, while s68(2) creates an offence of non-compliance. What makes you think that the burden of proof is not on the prosecution?

[Comfy]

surely s68(1) imposes an obligation, while s68(2) creates an offence of non-compliance. What makes you think that the burden of proof is not on the prosecution?

Hi and thanks.

Yes, there would be proof required for an Authority to prosecute an Undertaker under 68(2), that proof would need to show that 68(1) had not been complied with. Non-compliance of 68(1) would be not "affording reasonable facilities". What I'm trying to understand though, is the actual obligation that the Undertaker has under 68(1).

68(1) is about "affording reasonable facilities" to show compliance with the rest of Part Three (which covers safety, noticing, qualifications, reinstatement, unreasonable delays etc.). If an Authority has reason to suspect that an Undertaker was not complying with another section or section under Part Three, what "reasonable facilities" does the Undertaker need to afford the Authority?

I really don't know what "reasonable facilities" means, so I was hoping the term appears in another, more commonly understood, legal context so I could get a frame of reference for what it's likely to mean in the niche world of Street Works.

EDIT: I'm clutching at straws in my initial attempt to understand "reasonable facilities", and settled on it meaning "providing proof" (of undertaker compliance with the rest of the Part).

[dslippy]

It doesn't mean providing proof. It means that the LA says what facilities it needs to check that the worksn have been done, and if the request is reasonable the facility (access or whatever) must be allowed.

I would take great care before extending this to any other areas of law.

[Comfy]

It doesn't mean providing proof. It means that the LA says what facilities it needs to check that the worksn have been done, and if the request is reasonable the facility (access or whatever) must be allowed.

I would take great care before extending this to any other areas of law.

Thanks!

So, one of the sections in Part Three requires the Undertaker to submit a notice prior to starting works. If the Authority had reason to believe the Undertaker was routinely not complying with that section (by carrying out works without notices) would it be reasonable facility for the Authority to require the Undertaker to provide a list of ALL internal street works instructions, cross-referenced with notice reference numbers? (an Authority only knows works have happened if they receive a notice, or if they stumble across any which don't have notices).

Another example. Undertakers are required to inspect their own works daily for safety compliance. Could an Authority require an Undertaker to provide records of site inspections carried out? Is this reasonable facility?

[Comfy]

Hello all Legal Beagles,

Any help offered to define "reasonable facilities" in this context would be greatly appreciated. Thanks!

[R0b]

In the absence of any specific definition, you have to interpret the words in their natural and ordinary meaning given the context. I would agree with dslippy that in this context, reasonable facilities could mean providing the street authority with the equipment or other information, documents etc. to determine compliance with the works.

As there is a criminal offence for non-compliance and there is no language to suggest the burden of proof is on the undertaker, the onus is on the LA/CPS to prove there was non-compliance.

Taking a step back, section 60 says there is a general duty for undertakers to co-operate in accordance with section 60(1). It also says under 60(2) that there may be guidance issued to help with compliance and so far as you comply with that guidance, you are taken to have complied with your obligations. I understand there has been guidance issued in the form of the Code of Practice for the Co-ordination of Street Works and Works for Road Purposes and Related Matters (rev. 2012).

In so far as compliance is concerned, have a rummage through that if you haven't already. I did a quick scan but there is only a short paragraph on co-operation and to provide 'reasonable facilities' to the authority for the purposes of 68(1). Maybe you want to email the relevant department of the LA to confirm what they mean by this but I suspect it will be something along the lines of what we have already described. What those 'facilities' are, will depend on the works being undertaken.

[Comfy]

Thanks so much R0b, I really appreciate you taking the time to look into this and respond in such detail. I've separated out some of your comments for separate responses for clarity, as there a several aspects of the topic covered.

in this context, reasonable facilities could mean providing the street authority with the equipment or other information, documents etc. to determine compliance

Other information, documents etc. is exactly what I was hoping it meant. I've never heard the term "reasonable facilities" anywhere else, and I'm only familiar with Street Works legislation, so I have nothing else to compare it to.

As there is a criminal offence for non-compliance and there is no language to suggest the burden of proof is on the undertaker, the onus is on the LA/CPS to prove there was non-compliance.

Yes, that's exactly right for the relationship between s68(1) and s68(2), but it's crucial to understand what s68(1) is really doing and how wide-reaching it is. Assuming we're right that 'affording reasonable facilities' can mean providing information, documents etc. s68(1) puts a responsibility on the undertaker to provide documents to show compliance with *all the other sections in Part III of NRSWA*. s68(1) is not about s68(1), it's about Part III, and it puts a burden on the undertaker.

s68(2) is about s68(1), not about Part III. It creates the offence for not complying with s68(1), and it puts the burden of proof on the authority.

So, assuming we're right that 'affording reasonable facilities' can mean providing information, documents etc., here's an example of how it could work in practice:

AUTH: "We don't think you are carrying out daily inspections on all of your unattended work sites, which is required under s65 of Part III of NRSWA"
UND: "Prove that we're not"
AUTH: "We can't be everywhere at all times, so we can't prove that you're not. However, under s68(1) you are required to afford us reasonable facilities to ascertain your compliance with your duties under Part III, which includes your duties under s65. It is reasonable to expect that your mandatory, daily inspections and visits to site are recorded on paper or digitally, so we are making a reasonable request to view those records so we can ascertain your compliance with s65 of Part III of NRSWA"

UND: (response option 1) "Here are our records, but they show we have not been carrying out daily inspections on all of our unattended work sites"
AUTH: (response option 1) "You have committed an offense under s65(4)"

UND: (response option 2) "We will not provide you with our records"
AUTH: (response option 2) "You have committed an offence under s68(2)"

EDIT: for option 2, the burden of proof lies with the authority under s68(2). Proof would be the emailed request form the authority, and the emailed refusal from the undertaker. Right?

I think that makes sense, and is a sensible, reasonable use of s68. I hope my example also highlights why parliament felt the need for s68 to exist; there are many duties placed on undertakers under Part III but, if the burden of proof of non-compliance lies solely with the authority, most non-compliance would go unnoticed and unenforced. s68 appears to put the burden on the undertaker to (among other things) retain records showing compliance, making the authority's position workable.

Another real world example is undertakers carrying out works without the required notice (permission/record). Authorities know that utility works regularly go ahead without the required notices, but the only way to prove that is to find those works while they are happening. Most authorities have 1-4 inspectors, and an impossibly huge road network to manage, plus dozens of other duties, so most non-compliance will happen without the authority's knowledge, and crucially without then any retrospective notices being submitted (the authority has a statutory duty under s53 to keep an accurate register of all street works, which is impossible if the undertaker does not submit notices). Under s68(1), an authority could request copies of the internal work instructions issued to contractors to carry out street works. If there were notices for all the work instructions, compliance could be ascertained. Again, I think it reasonable that the undertaker keeps these records (they do keep them for billing purposes), and it's reasonable for an authority to request them under s68(1).

Taking a step back, section 60 says there is a general duty for undertakers to co-operate in accordance with section 60(1). It also says under 60(2) that there may be guidance issued to help with compliance and so far as you comply with that guidance, you are taken to have complied with your obligations. I understand there has been guidance issued in the form of the Code of Practice for the Co-ordination of Street Works and Works for Road Purposes and Related Matters (rev. 2012).

In so far as compliance is concerned, have a rummage through that if you haven't already. I did a quick scan but there is only a short paragraph on co-operation and to provide 'reasonable facilities' to the authority for the purposes of 68(1). Maybe you want to email the relevant department of the LA to confirm what they mean by this but I suspect it will be something along the lines of what we have already described. What those 'facilities' are, will depend on the works being undertaken.

Yes, the Coord CoP, along with the Safety CoP, the Inspections CoP, the Noticing Tech Spec, the Reinstatement Spec, and other secondary legislation provide detail added to one or more sections of Part III of NRWSA each. None apply to s68***, and none are as all-encompassing as s68(1) in that it applies to the whole of Part III.

***The Coord CoP 2012 applies to England, and very briefly mentions s68 (two sentences out of 164 pages), but fails to add any useful detail or provide any examples of it in use. The Coord CoP 2008 applies to Wales and makes no mention of s68.

Thank you again R0b, it's clear that you've taken a good amount of time to read into the subject, which I really appreciate. If you have any thoughts on my responses please let me know.

Cheers!

[R0b]

I was unable to find in any authoritative book any definition of 'reasonable facilities' hence my response as to a broad interpretation. However, I did a little digging around and I found a Court of Appeal case which, not directly on point, does discuss and refer to reasonable facilities under section 81 which is a duty to maintain apparatus.

The case is Hertfordshire County Council v Veolia Water Central Ltd (formerly Three Valleys Water plc) (link to decision here) which is a short judgment and I've extracted where the court touches on 'reasonable facilities'.

18. I have come to the conclusion that this is a case in which the court should read regulation 4 of the 1992 Regulations in a way which avoids absurdity, having regard to the legislative purpose. Section 81(3) and regulation 3 are concerned with situations in which the street authority need facilities to inspect the undertaker's apparatus. If facilities are not provided, the authority may execute works necessary to enable them to inspect the apparatus. That may include "any necessary breaking up or opening of the street". The power arises under regulation 3 in circumstances where the street authority have reasonable cause to believe "by reason of subsidence or disturbance of the road surface" that the undertaker's apparatus has not been maintained as required. Those provisions clearly apply to underground apparatus which is not observable from the street.

19. Section 81(4) is not so limited and contemplates emergency works on any apparatus, whether above or below ground. The need for facilities for an inspection under section 81(3) will not arise in those cases where the defect is visible in the street. Section 81(4), subject to the regulations, empowers emergency works necessary to protect the public in consequence of the undertaker's failure to maintain apparatus. There is no sensible reason why the power to execute emergency works should not cover works on the surface, where no facilities for inspection are required from the undertaker and regulation 3 does not operate, as well as works underground.

20. I have no doubt that an error occurred in drafting regulation 4. That is confirmed by the wording of regulation 2. Under the definition in regulation 2, "relevant apparatus" in regulation 4 undoubtedly includes a manhole cover. It also includes other "surface boxes". The requirement for facilities for inspection under section 81(3) and regulation 3 does not arise in relation to such apparatus. Unless regulation 4 is read as including an inspection in cases where section 81(3) facilities are not required, there would be no need to include in regulation 2 apparatus on the surface. Read as the respondents contend, regulation 4 would emasculate section 81(4) by depriving it of any application to surface apparatus, which cannot, in my view, have been intended.

On reading the above statements and the decision as a whole, it would appear the court is interpreting 'facilities' to mean equipment of some kind to enable the authority to enable it to inspect the works. That interpretation would of course align with the dictionary definition as meaning equipment for a particular purpose.

I would say that in the absence of any legal authority around s68, I would rely on this decision as legally binding authority to indicate that 'reasonable facilities' would be taken to mean equipment of some kind to allow the authority to inspect the works and ensure compliance. I would not take it to mean provision of documentation or similar materials for the purposes of s68 although those obligations may be found else where in the legislation.

Does that answer your question?