Policy for Enforcement and Prosecutions of Highway and Street Works Activities
1.0 Purpose
1.1 This Policy sets out how the Highway Authority, East Sussex County Council (the Authority), will enforce encroachments, obstructions, damage, unlawful interference or other offences relating to highways and street works to protect the use and enjoyment of the highway for the public, and ensure public safety, maintain network integrity, and secure compliance with legislation. It explains when enforcement is considered, how decisions will be made, and the standards expected in investigation and case management.
2.0 Scope
2.1 This Policy applies to all alleged interference or offences on or in relation to the public highway within the Authority’s area, including but not limited to:
- Encroachment
- Unauthorised, unsafe, or non-compliant street works (utilities and private promoters)
- Obstruction or damage to the highway
- Unauthorised installation, attachment, placement, display or retention of any object, apparatus, structure, sign, banner, decoration, equipment or other item on, over, under or adjacent to the public highway or any highway asset, where such activity requires the consent of the Highway Authority
- Unauthorised vehicle crossings/dropped kerbs
- Improper placement or management of skips, scaffolds, hoardings and building materials
- Dangerous excavations and non-compliant traffic management
- Advertising, trading or other encroachments requiring consent
2.2 It applies to the Authority’s officers and to any agents and/or contractors acting on the Authority’s behalf.
3.0 Legal and Policy Framework
3.1 The legal and policy framework governing highway‑related enforcement is primarily underpinned by statutory duties in the Highways Act 1980, which sets out offences such as obstruction of the highway, damage to the highway, unlawful encroachment, and failure to comply with lawful notices issued by the highway authority.
3.2 These provisions operate alongside the common law and other legislation such as Road Traffic Regulation Act 1984, the Traffic Management Act 2004, and relevant secondary legislation, which provide additional enforcement powers relating to traffic regulation, street works, and network management.
3.3 Enforcement action must be expedient for the promotion of protection of the interests of the residents of the Authority’s area, and where the Council is considering taking a prosecution it must also comply with national standards, including the Code for Crown Prosecutors, which requires decisions to be made in accordance with public interest and evidential sufficiency tests. Collectively, this policy ensures that enforcement action is used proportionately and appropriately to protect the safety, integrity, and efficient operation of the public highway.
3.4 Examples of specific legislation include the following (this is not an exhaustive list):
- Highways Act 1980 (e.g., s.137 Obstruction, s.139 Skips, s.131 Damage, s.153–161 Dangerous excavations, s. 169 Scaffold, s.184 Vehicle crossings)
- New Roads and Street Works Act 1991 (NRSWA) (e.g., noticing/permit contraventions, s.70 reinstatement failures, s.81 defective apparatus)
- Traffic Management Act 2004 (TMA) and any Permit Scheme Order and local scheme documents
- Local Government Act 1972 (delegations) and Local Authority Constitution/Enforcement Policy
- Police and Criminal Evidence Act 1984 (PACE) and Codes of Practice (interviews, cautions, evidence)
- Criminal Procedure and Investigations Act 1996 (CPIA) (investigation, disclosure)
- Magistrates’ Courts Act 1980 (summary proceedings, time limits)
- Regulators’ Code (2014) and Code for Crown Prosecutors (public interest and evidential tests – used by analogy)
- Equality Act 2010, Human Rights Act 1998, Data Protection Act 2018/UK GDPR
- Road Traffic Regulation Act 1984
- Safety at Streetworks and Road Works - a Code of Practice (NRSWA "Red Book")
- Specification for Reinstatement of Openings in the Highway (NRSWA)
- East Sussex Highways Licencing and Enforcement policies and procedures
Note: This Policy should be read with the Authority’s Street Works Permit Scheme and Lane Rental scheme documents.
4.0 Enforcement Principles
4.1 In England and Wales, enforcement of highway and street works can be both civil and criminal, depending on the specific breach and the legislation being used. As a Highway Authority, when enforcing against utility companies and contractors, it is possible to use civil/administrative powers as the first line of enforcement. Criminal prosecution may be considered for more serious or persistent breaches.
4.2 The Authority’s highway enforcement approach is founded on clear principles that promote fairness, transparency, accountability, proportionality, consistency, and the effective stewardship of the public highway. Enforcement action will be consistent with these principles. The Authority and ESH will:
1. Prioritise safety and network functioning – intervene promptly where risk to the public or network integrity is significant and/or non-compliant with legislative requirements.
2. Be proportionate and targeted – match the response to the seriousness, culpability, risk, harm and history.
3. Be consistent and fair – apply the law and this Policy impartially and with regard to obligations arising from the Equalities Act 2010.
4. Encourage compliance and prevention – use advice, informal and formal warnings, cautions for NRSWA offences, fixed penalties and cost recovery where adequate; seek redress from the Courts or prosecute where necessary.
5. Be transparent and accountable – record decisions, reasons and outcomes; monitor and report performance.
5.0 Enforcement Options
5.1 Enforcement will be risk‑based, prioritising actions that address threats to highway safety, network integrity, or the efficient movement of traffic. Measures that will be taken include (but are not limited to):
- Informal Action: Advice, verbal or written warnings, improvement letters.
- Direct action, such as the immediate removal of obstructions
- Statutory Notices/Requirements: Defect notices, Section 81 (defective apparatus) notices, removal of obstructions/materials, remedial directions.
- Licensing/Permitting Controls: Vary, suspend or refuse permits / licences; impose conditions.
- Financial Sanctions (Civil): Fixed Penalty Notices (FPNs) where available; permit fees / variations; inspection charges; defect and investigatory costs; civil cost recovery for damage.
- Simple Caution: Where offence admitted, evidential test met, public interest served without court action.
- Initiate civil proceedings, including seeking injunctive relief.
- Prosecution: For serious, repeated or aggravated non-compliance, or where other measures are inadequate.
6.0 When the Authority Will Consider commencing civil or criminal proceedings.
6.1 Where one or more of the following apply:
- Serious risk or actual harm to the public, workers or highway assets (e.g., unsafe traffic management (TM), open excavations, structural damage)
- Deliberate, reckless or negligent breaches; falsification of records; obstruction of officers
- Repeat offending or poor compliance history; disregard of previous advice, notices, FPNs or cautions
- Significant disruption to the network (e.g., unnotified works on strategic routes, peak-time breaches contrary to conditions)
- Substandard reinstatement causing safety or asset failure; failure to rectify within required timescales
- Commercial advantage gained by non-compliance or persistent encroachment (e.g., unlicensed trading/A-boards)
- Public interest and deterrence require court action (e.g., high-profile or systemic issues)
7.0 Decision-Making Tests
7.1 All decisions to take commence civil or criminal proceedings will consider:
7.1.1 Evidential Test
- Is there sufficient admissible, reliable evidence to provide a realistic prospect of success?
- Has the Authority identified the correct legal person (company/partnership/individual)?
7.1.2 Public Interest Test
In deciding whether to take enforcement action, the Council will consider whether there is sufficient evidence of a breach and whether action is in the public interest. Relevant factors will include the seriousness of the breach, risk to public safety, impact on the public’s right to use and enjoy the highway, effect on vulnerable users, whether the breach is deliberate or repeated, the response to any informal request for compliance, the availability of proportionate alternatives, consistency with previous decisions, and the efficient use of public resources. Formal enforcement will generally be reserved for cases where it is necessary, proportionate and targeted to secure compliance, protect the public, or uphold the integrity of highway controls
7.2 The Authority will have regard to the Code for Crown Prosecutors and the Regulators’ Code, alongside local enforcement policies.
8.0 Costs, Compensation and Ancillary Orders
8.1 The Authority will seek full recovery of enforcements costs
8.2 Where appropriate, the Authority will seek compensation for damage and ancillary orders (e.g., remediation orders).
8.3 Civil cost recovery and debt enforcement will be pursued by the Authority.
9.0 Monitoring and Review
9.1 An annual report will be drafted by the Network Assurance Manager to ESCC Head of Highways to summarise enforcement activity and outcomes and may include: number of inspections; FPNs issued; prosecutions commenced; conviction rate; repeat offender rate; defect rectification times; asset failure trends.
9.2 This Policy will be reviewed every two years or sooner if legislation, case law or local priorities change.
10.0 Equality, Human Rights and Safeguards
10.1 The Authority will apply this Policy in accordance with the Equality Act 2010 and Human Rights Act 1998, ensuring decisions are objective, evidence-based and proportionate, and that reasonable adjustments are made where required.
11.0 Interaction with Other Regulators
11.1 The Authority and ESH will coordinate with the Police, Health & Safety Executive, Environment Agency, National Highways, utility regulators, District and Borough Councils and neighbouring authorities where jurisdiction overlaps, to avoid duplication and ensure effective, proportionate outcomes.
Version Control
Approved by: Lead Member for Transport and Environment, July 2026
Version: V1