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Code of Practice for Inspections (October 2002)


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Q0001 - Charging for Defects?

Date Submitted: Friday 26 March, 2004

Question:

I would be grateful for your advice on the interpretation of the Code of Practice for Inspections as it applies to the agreement and inspection of street works defects.

The Code requires the undertaker to contact the Highway Authority by the end of the next working day following notification of a defect to arrange a site meeting. The meeting should be within 10 days and is to agree the defect.


If the undertaker fails to contact us but sends a proposed remedial notice with a date for the works can we charge the £40 D1? (Case A)

If the undertaker fails to contact us or send a proposed remedial notice and we inspect the site after 10 days and 17 days what can we charge for? (Case B)

If the undertaker fails to contact us at all but the defect is rectified what can we charge? (Case C)


We have been attempting to charge D1 D2 and D3 in Case A, assuming that we attend at the date and time stated for the D2 irrespective of whether the undertaker is present.

In Case B we have been attempting to charge D1 and D2 and after 17 days a repeat £20 inspection fee, repeating the whole process every 17 days until we get a response. In this situation is a new D1 joint inspection required after 17 days even if the undertaker has agreed the defect originally but has done nothing since?


In Case C we attempt to charge D1 D2 and D3 on the grounds that we have not been given the opportunity to inspect jointly at any stage.

Additionally with the D1 if we get a response to the defect notification but the utility doesn't want to attend a site meeting, can we charge the £40 D1 on the grounds that we want a meeting (and £40)?

Answer:

We will respond to each of the three issues separately.

Case A

If a joint inspection is not undertaken it must be agreed by both parties that it is not necessary. In this instance the Utility is failing to co-operate with the Street Authority, an offence under NRSWA for which the Utility could be prosecuted. Defect fees are a means of recompensing Street Authorities for work undertaken when visiting site, they are not a fine upon the Utility (Section 2.4.2 – Code of Practice for Inspections).

Case B

Paragraph 4.2.2(vi) of the Code of Practice refers to this instance, and allows the Street Authority to visit site and charge and inspection fee. Again this could be termed a failure to co-operate on the part of the Utility.


Case C

Paragraph 4.2.2(vii) of the Code of Practice refers to this issue. The Street Authority may claim a defect fee for inspecting the completed remedial works. In this instance not only has the Utility failed to co-operate it has also failed to send the necessary notices to the Street Authority relating to the undertaking and completion of the remedial works. All are offences under NRSWA and the Utility can again be prosecuted.

In summary and without knowing the background or history to these queries, the joint Chairs would expect the senior managers from the Street Authority and Utility to meet and address and resolve these matters. If this is not successful then prosecution may be the only solution.

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