The penalties, which total £94,000, are for failure to comply with their statutory obligations when placing cables and pipes in roads. The failings had been identified by the latest Scottish National Coring Programme, in which cores were taken to confirm that the correct materials, layer depths and compaction were used in the bituminous layers of excavations.
In July 2020, commissioner Angus Carmichael wrote to the six organisations advising that he was considering penalising them due to their poor performance. He gave them the opportunity to submit representations detailing any mitigating factors.
Having considered their responses, the commissioner decided that penalties should be issued against each of the six organisations.
The values of the penalties that have been issued are:
- BT £50,000 (maximum);
- Virgin Media £34,000;
- Last Mile Asset Management £3,000;
- ES Pipelines £3,000;
- Network Rail £2,000;
- GTC £2,000.
The commissioner has powers to issue penalties up to a maximum of £50,000 where a utility has failed to comply with duties to cooperate with roads authorities.
The organisations penalised were found to have failed in their duties under section 119 of the New Roads & Street Works Act 1991. They have also failed to comply with the Specification for the Reinstatement of Openings in Roads (SROR).
Carmichael said: “Organisations with statutory powers to lay apparatus in Scotland’s public roads must comply with legislation for reinstating their excavations. As undertakers, these companies have statutory rights which allow them to place, inspect and maintain their apparatus under the road. These statutory rights come with obligations set out in the New Roads and Street Works Act 1991. Compliance with these duties is essential to protect the road network across Scotland. Failed reinstatements reduce the serviceable life of the road, leading to further road works to replace the failed sections, additional costs to roads authorities and unnecessary disruption and inconvenience to road users.
“I am extremely disappointed with the poor performance of a number of utility companies, specifically where their performance has declined since the previous National Coring Programme and/or they have previously received a penalty for a similar breach of the legislation.”
In particular, he singled out Virgin Media and BT. BT was penalised £38,500 in 2012, £30,000 in 2014 and £50,000 in 2017 for similar failings.
“Despite ongoing engagement with senior management in Openreach, acting on behalf of BT, performance has not improved to the required standard of 90%, with the organisation recording substandard results over the past 5 National Coring Programmes. In view of their continuing poor performance, which demonstrates only minor improvement, I have no option other than to apply the maximum penalty available to me of £50,000 once again.
“Virgin Media who were penalised at a failure rate of 63% in 2012, improved their performance significantly to 86% in 2014, fell to 76% in 2015/16 and unfortunately have not managed to regain their improved performance, recording only 79% in the latest programme.
“The performance of GTC, Last Mile Asset Management, ES Pipelines and Network Rail was also unacceptable and in need of early improvement.”
Carmichael said that, while two of the large players in the telecommunications sector performed badly, a number of smaller telecommunication companies performed well, notably CityFibre, Arqiva, SSE Telecoms and Vodafone who all achieved around or above the 90% pass rate.
“The major water, gas and electricity organisations again achieved pass rates at or in excess 90%, maintaining their 2017 performance levels and demonstrating that improvement is possible and can be maintained,” he said.