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

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