These failings were 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, the commissioner wrote to six utility organisations advising that he was considering penalising them due to their poor performance. He gave organisations 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 which have been issued are as follows:

• 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 co-operate with roads authorities. The value of the above penalties take into account the rate of failure below 85 per cent and the overall number of road works undertaken by the organisation to estimate the potential degree of harm caused. Previous performance, including penalties for similar failures, and the mitigation provided by each organisation, particularly where recent data was able to show improvement, were also taken into account in determining the level of penalty.

The organisations penalised have failed in their duties under section 119 of the New Roads and Street Works Act 1991. They have also failed to comply with the Specification for the Reinstatement of Openings in Roads (SROR).

Angus Carmichael, Scottish Road Works Commissioner 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, large companies operating in the telecommunications sector, specifically Virgin Media and BTplc.”

He added: “In 2018/19, road works undertaken across Scotland by organisations penalised totalled 39,621 against 95,133 utility company road works registered. At an average failure rate of 23 per cent of 39,621 this suggests that the legacy left by the six organisations penalised totals 7,924 failed reinstatements. This is completely unacceptable and I hope these penalties serve as a clear warning. All organisations penalised have provided assurances that processes are being modified to demonstrate early improvement. My office will continue to scrutinise their performance closely.”