The Act Information about apparatus: section 119
537.The 1991 Act contains a duty on undertakers to keep and make available records of the location in roads of the apparatus belonging to them. However, for various reasons the section imposing this duty (section 138) was never brought into force.
538.Many undertakers have, however, voluntarily provided details of their apparatus in a part of the SRWR which is referred to as the Community Apparatus Data Vault (“the Vault”). The Vault contains information from undertakers and others who carry out works in roads and is widely used in the planning and construction stages of works in roads.
539.In order to improve the comprehensiveness of the Vault, section 119 of the Act replaces section 138 of the 1991 Act with a new section 138A. The new section requires undertakers and other people who are carrying out works in a road to enter in the SRWR details of the apparatus which belongs to them as soon as reasonably practicable after they complete works involving that apparatus, or whenever they discover or are informed about the location of apparatus belonging to them (but in respect of which no information has been stored in the Vault).
540.The details that require to be entered in respect of each piece of apparatus will be set out in regulations made under new section 138A (in accordance with section 163 of the 1991 Act). This will include the location of the apparatus and a description of the apparatus itself.
541.Regulations under new section 138A can, by virtue of section 163 of the 1991 Act, also provide for exceptions to the general rule. This may include, for example, where the apparatus is in a particular place in a road or where there are matters beyond the control of the person which make it difficult or impossible to comply with the duty.
542.Under subsections (3) and (4) of the new section 138A, failure to enter the information in the register is a criminal offence and a person who is convicted of that offence is liable to a fine of up level 5 on the standard scale (currently £5,000).
543.In addition, the failure to comply may give rise to civil liability for any losses or damages incurred by another person in consequence of the breach of duty.
544.However, a person has a defence to criminal or civil proceedings where the person has taken all reasonable care to secure that no such failure should occur. This defence extends to the situation where the works were carried out by the employees of the person or indeed by third party contractors.