Stockton-on-Tees Borough Council Permit Scheme

17.1 Permit Authority's Policy

Appendix C sets down the Permit Authority's policy of how it will employ sanctions and this policy should be read in conjunction with this section together with current NRSWA legislation and the Code of Practice.

17.2 Undertaking Activities without a Permit

Regulation 19 of the Regulations states that it is a criminal offence for a statutory undertaker or a person contracted to act on its behalf to undertake specified activities in a specified street in the absence of a permit, except as set down in Section 3.4.

This permit offence applies only to statutory undertakers and not the Highway Authority, however the Permit Authority will monitor the performance of the Highway Authority promoters to ensure a consistent approach and it will be a matter of public record if a Highway Authority acts in such a way that would amount to the commission of an offence under Regulations 19 of the Regulations.

Any person found guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

17.3 Breaching a Permit Condition

Regulation 20 of the Regulations provides that it is a criminal offence for a statutory undertaker or a person contracted to act on its behalf to breach a permit condition.

Any person found guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Any statutory undertaker not working within the terms and content of an issued permit (either granted or deemed) will be seen as undertaking work in breach of permit conditions. It is the promoter's responsibility to ensure the content of the permit accurately reflects the proposed or ongoing activity.

17.4 Action by Permit Authority

If the Permit Authority considers that an activity promoter is undertaking activities which are outside the scope of an issued permit, then it may revoke the permit. Before revoking a permit, the Permit Authority will contact the activity promoter to inform them of its intention and initiate a verbal discussion followed by electronic communication.

Where a statutory undertaker or a person contracted to act on its behalf undertakes an activity without a permit, where a permit is required, or breaches a permit condition, the Permit Authority may take one or more of the following actions depending on the seriousness and persistence of the offence(s):

• serve a notice requiring the statutory undertaker to take such reasonable steps as detailed in the notice to remedy the situation within a specified timescale
• where a statutory undertaker fails to comply with the requirements of such a notice within the timescale, the Permit Authority may undertake the specified steps and recover the costs that are reasonably incurred, from the statutory undertaker
• give a Fixed Penalty Notice (FPN) against the statutory undertaker
• prosecute the statutory undertaker.

17.5 Fixed Penalty Notices

Regulations 21 to 28 (and Schedules 1 and 2) of the Regulations authorise permit authorities to give Fixed Penalty Notices (FPNs) in respect of criminal offences. FPN's offer the offender an opportunity to discharge liability for an offence by paying a penalty amount.

A FPN may not be given more than 91 calendar days after the offence, beginning with the day on which the offence is committed. This is the maximum period allowed, although to improve co-ordination the Permit Authority will, once it is decided that a FPN is to be given, do so as soon as possible. The penalty amount is £500 for carrying out an activity without a permit, although a discounted amount is £300 if payment is received within 29 calendar days. For carrying out an activity in breach of a permit condition, the penalty is £120 and the discounted amount is £80 if payment is received within 29 calendar days, FPNs MUST be in the form set out in Schedule 1 to the Regulations.

A FPN shall identify the offence to which it relates and give reasonable particulars of the circumstances alleged to constitute that offence. It must also state:

• the amount of the penalty and the period within which it may be paid
• the discounted amount payable in accordance with Regulation 25 of the Regulations and the period within which it may be paid
• the person to whom and the address at which payment may be made
• the method or methods by which payment maybe made
• the person to whom and the address at which any representations relating to the notice may be addressed and
• the consequences of not making a payment within the period for payment.

The person specified above shall be the Permit Authority or a person contracted to act on its behalf. FPNs will be served electronically where possible, but other means of giving the fixed penalty notice are permitted.

If an undertaker wishes to receive FPNs by electronic means, it must tell the Permit Authority which method (e.g. in accordance with the current technical specification, or email) and provide details of the electronic web service URL, email address or fax number to be used as appropriate. Where an address for service using a particular method for transmitting an electronic communication has been given for receipt of FPNs and the Permit Authority has not been notified that the address is withdrawn, then a FPN must be served by sending to that electronic address.

In all other circumstances, including system failures or if the Permit Authority has tried and failed to use electronic means, the fixed penalty may be served by alternative methods such as:

• delivering it to the person to whom it is to be served
• leaving it at the proper address
• sending it by first class post to their address
• by any other agreed means.

Section 98 (2) of NRSWA provides that a notice served after 16:30 on a working day is deemed to have been served on the next working day. The technical specification includes a non-mandatory message type for sending a FPN using electronic means.

17.6 Withdrawal of an FPN

In accordance with Regulation 27 of the Regulations, if the Permit Authority considers that a FPN which has been given ought not to have been given, it shall give to the person to whom that notice was given, a notice withdrawing the FPN. The notice shall be in the form set out in Schedule 2 of the Regulations and the Permit Authority in such circumstances will repay any amount which has been paid by way of a penalty in pursuance of the Fixed Penalty Notice. The Permit Authority shall consider any representations made by or on behalf of the recipient of a Fixed Penalty Notice and decide in all the circumstances whether to withdraw the notice.

17.7 Non Payment of an FPN

If the undertaker pays either the full penalty or the discounted amount within the required period, then no further proceedings can be taken against that undertaker for that offence. If the undertaker does not pay the penalty within the 36 days, then the Authority may bring proceedings in the Magistrates' Court for the original offence.

Legal action must be taken before the expiry of the six months deadline from the date of the offence for bringing a case before the Magistrates' Court (Section 127 of The Magistrates' Courts Act 1980). This is the case even if the FPN was not given for some time after the offence was committed. In circumstances where a Fixed Penalty Notice has been given in relation to an offence, although the Permit Authority subsequently forms the view that it would be more appropriate to prosecute the offender, the Permit Authority must withdraw the notice under Regulation 27 of the Regulations before bringing the proceedings.

17.8 Section 74 of NRSWA

Section 74 of NRSWA enables the Permit Authority to operate an over-run charging scheme alongside the Permit Scheme.

The Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) (Amendment) Regulations 2012 and its successors will apply but may be subject to change from time to time in which case the amended or replacement Regulations will apply.

The operation of the overstaying regime however is modified under the Permit Scheme to incorporate the process of setting and modifying the duration of the activity (or "works" in Section 74 terms) through the permit application, approval and variation processes.

Activities carried out by a Promoter on behalf of a highway Authority or by the highway Authority themselves are not subject to Section 74 overrun charges. However, under the Permit Scheme, Promoters of such activities will be required to follow the same procedures as Promoters who are Statutory Undertakers.

17.8.1 Charges

The level of charge is set in the Section 74 regulations and any other regulations or Codes of Practice that apply at the time of the charge.

The Permit Authority will always endeavour to ensure the facts used for proposing charges are accurate and in line with the regulations at the time.

The burden of proof is with the works promoter to prove that a physical overstay has not occurred in all circumstances where a promoter believes incorrect dates have been submitted.  In these circumstances the Permit Authority reserves the right to consider whether an FPN offence has been committed.  If no evidence can be provided then a Section 74 charge will be applied in all circumstances.

Overruns on remedial works will be charged at the same rates appropriate in Section 74 regulations.

17.9 Application of Money by the Permit Authority

The Permit Authority recognises that the FPN scheme is NOT intended to be an additional source of income for authorities, although some income may be generated incidentally. The objective of the FPN scheme is to enable permit authorities to manage and control activities better on the street and thereby contribute to the overall aim of the TMA, which is to minimise disruption from street activities, and will be operated with that in mind, the Permit Authority should therefore not expect any net proceeds emerging from this Permit Scheme. They shall however, apply any net proceeds from the costs of operating the FPN scheme to promoting and encouraging safe, integrated, efficient and economic transport facilities and services, to, from and within its area.

17.10 Regulation 18 of the Regulations - Discretionary Unauthorised Works Notices

Under Regulation 18 of the Regulations, the Permit Authority may instead of proceeding by way of a criminal sanction use this power to give a notice where a person or persons who has undertaken works without a permit for which a permit is required to have been obtained or breached a permit condition. This power will only be used where it is considered to be an appropriate response in the circumstances and not as a matter of course.

Where such a notice is given it will require the persons to take such reasonable steps as specified in the notice to remove the works, to remedy the breach or to minimise or discontinue any obstruction to the street connected with the works and to propose remedial action which must be undertaken within the timeframe set in the notice.

17.11 Other NRSWA Offences

Any offences relating to other sections of NRSWA which run in parallel to Permit Schemes will continue to apply. These include but are not limited to offences relating to reinstatement, overrunning and failure to send appropriate notices.