Whilst there have been very significant increases in street works compliance by utility companies and their contractors over the years, the financial and reputational risks posed to utility companies by certain street works related criminal offences has dramatically increased in recent years. This is as a result of the “uncapping” of level 5 offences brought about by the implementation on 12th March 2015 of s.85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. For anyone wanting to know the detail, the implementing legislation was the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 11) Order 2015 (SI 2015/504).
The upshot of “uncapping” is that the previous maximum fine of £5,000 that applied to level 5 fines was removed and the level of fine that the Magistrates’ Court might impose is now effectively unlimited.
Before the “uncapping” of level 5 fines, a bad day in Court on a level 5 capped street works offence was unlikely to prove too financially painful – in the greater scheme of things. That is no longer the case. A bad day in Court on something that 5 years ago might have attracted a £3,000 fine might today see a utility company be sentenced to a considerably larger fine. Whilst it has taken a few years for fines to increase, fine ‘inflation’ has been significant in some parts of the country for even relatively minor non-compliances.
There are steps that an undertaker can take to mitigate the risks that its street work activities may pose. These include:
- Ensuring that all internal and contractor staff have an appropriate understanding of the legal obligations that street works legislation imposes;
- Self auditing of works being done by you and on your behalf and ensuring all non-compliances are promptly identified and rectified; and
- Responding promptly and effectively to any report of problems with a site or works.
Our team has extensive experience of advising undertakers on street works compliance and defending related criminal prosecutions.
Do contact us if you think we can assist in reducing your legal risks from street works.