The Act Qualifications for supervisors and operatives: section 116
503.Section 126 of the 1991 Act already requires the majority of road works(20) which involve breaking up the road (or any drains, sewers or tunnels under it) or tunnelling or boring under the road to be supervised by a suitably qualified person, and also requires a suitably qualified trained operative to be present on site whenever this kind of work is taking place. There is nothing to prevent a suitably qualified person from being both a supervisor and a trained operative (assuming that they are in a position to discharge both functions adequately).
504.Section 116 of the Act, which inserts section 61B into the 1984 Act, extends these requirements to when other types of ‘works in a road’ are taking place, including improvements to the road carried out by the roads authority which involve excavation of a road, and any non-excavation works which require obstructions to be placed on a road. Where excavation is carried out, the duty extends to the subsequent reinstatement of the road and associated activities, such as replacing road markings.
505.In order to ensure that the supervisory obligations are being complied with, the roads authority may serve a notice on the person responsible for the works which requires the person to provide the name of the supervisor of the works (and any or all previous supervisors). They may also require the name of any trained operative on the site at a particular time or the names of all the trained operatives who have worked the site. In addition, the notice can require the production of evidence as to the supervisor’s or operative’s credentials.
506.Notices may only be served either during the works or within such a period after the works have finished as the Scottish Ministers may set out in regulations. A roads authority may serve more than one notice in respect of the same works.
507.Failure to comply with the requirements of a notice is a criminal offence carrying a penalty of a fine of up to level 5 fine on the standard scale (currently £5,000) (see inserted section 61B(7) and (8)).
508.The Commissioner may also serve a notice in respect of any works in a road being carried out requiring the roads authority to provide details of the individuals who are (or have been) the supervisor and trained operatives for the works, including evidence of their credentials. This covers not only works in a road being carried out by the roads authority, but works by other persons too. Failure of the roads authority to comply with this notice may be dealt with through section 45(b) of the Court of Session Act 1988 or under the compliance notice regime being introduced under section 111 of the Act.
509.Inserted section 61B(9) provides the Scottish Ministers with the power to make regulations to prescribe the qualifications required of the supervisors and trained operatives as well as a range of other related matters. Importantly, these regulations may provide for exceptions when the supervisor and trained operative duties will not apply and circumstances in which more than one trained operative must be on site.
510.Subsection (2) of section 116 of the Act amends section 126 of the 1991 Act by adding three new subsections.
511.New subsections (1ZA) and (2ZA) confirm that road works being executed by undertakers must be supervised until the point that the road is reinstated, and that a trained operative must be on site at all times that works are ongoing (including the road’s reinstatement). This is already the case (see the broad definition of road works in section 107 of the 1991 Act). However, the new subsections are being added to avoid the risk of any confusion being caused by an explicit reference to reinstatement in the inserted section 61B.
512.New subsection (2ZB) adds to the regulation-making powers of section 126 of the 1991 Act to enable the Scottish Ministers to specify circumstances in which more than one trained operative needs to be on site (and how many trained operatives there should be). The regulations are subject to the negative procedure.(21)