By Roger Culpin
This interesting little point cropped up recently in the office. More one for colleagues still running noticing regimes, or maybe those running permit schemes who have long memories. Either way, do pop into the forum and comment if you have an opinion.
There appears to be some ambiguity as to when a Revised Duration Notice should be served which would result in the giving of an FPN.
Looking at the wording in paragraph 8.2.6 in the CoP for Coordination of Street Works etc., it states “Unforeseen circumstances can delay the completion of works, so the undertaker may give a Notice of Revised Duration Estimate at any time before the estimated end date.”
Reading this, I suppose it can be taken that the Revised Duration Estimate Notice must be served the day before the estimated end date so as not to incur an FPN. However, I believe that the paragraph should refer to the end of the estimated end date or duration expires. This will take into account the problem whereby the unforeseen circumstances occur on the day of the estimated end date.
However, looking at the Technical Specification and 5.2.5 Revised Duration Estimate. The introductory paragraph states "This structure is used to notify a revised duration of works either before the works have started (NRSWA only) or whilst the works are in progress." This statement would take preference over the CoP as it is enshrined in Regulations but the wording does lead to a further anomaly as to definition of “works in progress”. Can, in fact, a Revised Duration Estimate Notice be served after the Estimated End Date?
Looking further at Regulation 11(1) of the 2009 S74 Regulations there may be a further clue as to before when the Notice is served.
"Further and revised estimates of duration of works
11.—(1) Subject to paragraph (4), if it appears to an undertaker that, by reason of matters not previously foreseen or reasonably foreseeable, the duration of the works is likely to exceed—
(a) the prescribed period,
(b) the period stated in that undertaker’s previous estimate, or
(c) the period previously agreed or determined under section 74(2) of the 1991 Act to be a reasonable period,
the undertaker shall give the highway authority written notice containing an estimate or revised estimate.
(2) Where notice is given under paragraph (1), any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the highway authority to be reasonable, unless they give written notice to the undertaker, within the period set out in paragraph (3), that they object to the estimate.
(3) The period referred to in paragraph (2) shall be 2 days beginning with the date on which the authority received the notice containing the estimate or revised estimate.
(4) This regulation shall not apply where a permit to carry out proposed street works has been granted by a Permit Authority."
The wording " the duration of the works is likely to exceed ............. the undertaker shall give the highway authority written notice containing an estimate or revised estimate." implies that the notice must be served before the duration is exceeded ie the end of the day of the estimated end date.
So the question is - Is it an offence to serve the Revised Duration Estimate Notice on the day of the estimated end date?
Roger Culpin is a former Chair of JAG(UK) and the authority Chair of the HAUC(UK) Inspections Working Group.