The passing of the Data (Use and Access) Act 2025 and the implementation of its amendments into the New Roads and Street Works Act 1991 (“NRSWA”) go further than just creating the much heralded National Underground Asset Register (“NUAR”).

The creation of NUAR comes with a range of sanctions and penalties to enforce it that are likely to provide fertile ground for disputes once it comes into effect.

Whilst some of those sanctions and penalties might be considered a development of existing NRSWA themes, others are distinctly novel in the world of NRSWA. Criminal sanction for NRSWA non-compliances are already familiar concepts, so the creation of a new criminal offence under new s.106B of NRSWA and the extension of criminal sanctions under newly amended s.79 of NRSWA and completely new s.80 of NRSWA might be considered a development of an existing theme. Similarly, the new civil liability for undertakers created under new s.106B might be considered a development of an existing theme. Although these might be considered a development on an existing NRSWA theme, they do extend obligations and duties into new areas and how they may work in practice will remain to be seen. What however is distinctly novel in the world of NRSWA is new Schedule 5A to NRSWA and the civil penalty notice regime it provides the Secretary of State with for the various categories of undertaker non-compliances at which that schedule is directed.

No doubt there shall be comforting words from government about these civil penalty notices created under new Schedule 5A being very unlikely to ever be used. Such words of comfort may ring (alarm?) bells with those who were engaged in street works back at the time when street works FPNs were initially being discussed and comforting words were being given by government about how few FPNs would ever be issued. A cynic might question whether the introduction of these civil penalty notices will see a repeat of the issues already seen with FPNs.

The new civil penalty notices under new Schedule 5A will be subject to the lower civil burden of proof, rather than the higher criminal burden of proof (that is the ultimate test of the NRSWA FPN regime). In so far as there might possibly be a bright side, there is an appeal process via the First-tier tribunal against the giving of a fixed penalty under new Schedule 5A. Whether that will actually provide any bright side to undertakers will however remain to be seen.     

With the devil invariably being in the detail, a very close eye will need to be kept on the regulations that NUAR’s changes to NRSWA will require. They will be relevant to both the scale of the NUAR information provision duty being imposed and will also detail the scale of civil penalty notices the Secretary of State might impose. Within the context of the detailed process for civil penalty notices detailed in new Schedule 5A one might foresee the potential figures being considered by government for individual civil penalty notices being more than merely nominal amounts.

Whether NUAR ever results in a meaningful product that is actually beneficial to society at large will remain to be seen. What however appears certain is that the scope for NRSWA criminal prosecutions and civil disputes has just been further extended.        

NRSWA, Lord Phillips’ “product of a demented computer” *, lives on…  

* Lord Phillips of Worth Maltravers, MR at paragraph 4 of the judgment in Transco PLC v Leicestershire County Council [2003] EWCA Civ 1524

Get in contact if this compliance training session would be of use to your teams and reduce legal and financial risks to your buisiness.

Get in contact if this compliance training session would be of use to your teams and reduce legal and financial risks to your buisiness.

The delegate feedback below is from recent delivery of the following compliance training sessions:

• NRSWA and TMA criminal and financial risks seminar; and
• Operational team briefing – Street works legal risks.

As a matter of course, we do not disclose details of our client organisations or personnel.

Get in contact if we can assist with your compliance training needs.

“Was very good and knowledgeable”

“All staff should attend this course”

“Managed to keep interest of Legal team and Depot team managers”

“Tom was knowledgeable and engaging and put info across in a way that was understandable”

“Tom was very knowledgeable and explained everything clearly and kept us interested and involved all the time”

“Trainer was spot on. Very enjoyable”

“Course exceeded my expectations and was delivered very well”

“Real world examples and explanations given by Tom helped me gain a greater understanding”

“Tom was engaging throughout”

“Great course. Trainer, Tom Ward, was brilliant. Made course enjoyable”

“Very knowledgeable trainer”

“The course was very enjoyable and the trainer Tom Ward had very good hands on experience”

“Opened your eyes to the bigger picture”

“Good course, well presented”  

We’re seeing and hearing of an increasing number of instances of undertakers finding:

1.      Someone has buried their apparatus under concrete ; or
2.      Covered over access points for valves etc; or
3.      Their apparatus has been damaged and “repaired” by parties unknown; or
4.      A combination of all of the above.

The first the undertaker is aware of this is usually when they do routine maintenance or a problem is reported with their network and they can’t locate their apparatus or find it in a condition they did not expect.

Aside from NRSWA containing a process for damage claims and diversionary works (and there being legal remedies for undertakers whose apparatus is so impacted), the wider concern here has to be with the potential safety risks of some of these actions. Any of them can pose risks to life and property.

To our mind, whilst all of the examples are serious, the most immediately dangerous is the “Bodge it Bob” repair to 3rd party apparatus. Whilst there may be occasions in which a party undertaking works might genuinely be unaware of damaging 3rd party’s apparatus, the “Bodge it Bob” repair is not one of those. “Bodge it Bob” is actively seeking to conceal damage to and repair of 3rd party’s apparatus. Whether such a repairing party has the professional skills and credentials to do the repairs to the standards of the owning 3rd party is not the issue (and is seemingly rarely the case). They are working on the apparatus of a 3rd party without that party’s knowledge or consent.

“Bodge it Bob” repair works, often using incorrect materials and fittings, to 3rd party apparatus pose immediate safety risks to the individuals undertaking them. To then conceal the damage and unauthorised (and invariably bodged) repair poses wider safety risks to any other party working in the vicinity of the apparatus and the public. OK, one might save a few quid and some time, but the safety risks for the worker doing the “repair”and those potentially created for entirely innocent 3rd parties are unconscionable.

We mention above the NRSWA processes for damage claims and diversionary works. There’s also HSG47. They’re all there for a reason, not that they will stop this type of behaviour. Most people use them. Yes, using them may cost time and/or money, but the flip side is that part of the reason they exist is to reduce the risk of someone being killed or seriously injured. The longer “Bodge it Bob” works continue, the greater the chance someone will be killed or seriously injured.

If you know a “Bodge it Bob” who does this or is instructing their teams to do this, perhaps you could gently highlight the error of their ways to them? You might also let them know that things may become a bit legally and financially unpleasant for them…

Are you wanting your leadership/ management team to have a clear understanding of streetworks criminal liability risks?

This concise briefing session may be of interest.

Email info@tewsolicitors.co.uk for further details and costs.

Outline brochure for current briefing session. Contact us for booking details.

Outline brochure for current briefing session. Contact us for booking details.