The context of highway maintenance is changing. By October 2018, local authorities should have completed a thorough review of internal policies and procedures if they want to continue to avail themselves of the statutory defence under s.58 of the Highways Act 1980, when facing a damages claim alleging a failure to maintain the highway.
If claimant solicitors seek to challenge and scrutinise what they see as new decisions and revised approaches by local authorities, then this could well result in an increase in claims.
Background
Since 2005, the UK Roads Board publication, Well-Maintained Highways – Code of Practice for Highway Maintenance Management, has provided tangible guidance for local authorities to work to when seeking to fulfil their statutory duty to maintain the highway, under s.41 of the Act.
Although not a mandatory standard, adhering to the guidance has been endorsed by the Court of Appeal as “evidence of good practice”. So, local authorities may well balk at the idea of wholesale changes to their well-established policies and procedures that are based firmly on:
The publication of Well-Managed Highway Infrastructure on 28 October 2016 marked the beginning of a shift in how local authorities must approach the inspection and maintenance of what is often their most valuable asset — the highway network.
The new guidance requires the implementation of a risk-based approach, in which local authorities can develop their own levels of service in accordance with “local needs, priorities and affordability”.
At first glance, it may therefore appear that local authorities are being given carte blanche to re-write the rules.
However, in practice, to what extent will local authorities’ policies and procedures need to change?
Risk-based approach
Under the new guidance, a risk-based approach encompasses all aspects of highway asset management. To ensure that the highway network remains safe, consideration is required of:
The latter is a specific focus of the guidance and should underpin all decisions taken in the transition to the new risk-based approach.
A risk-based approach represents a clear, co-ordinated response to the identification of risks from a given set of circumstances. It also involves a process of continuous evaluation, as new information becomes available.
The frequency of safety inspections may previously have been set up with reference to the hierarchy table in the 2005 Code of Practice.
Under the new guidance, a host of factors must be considered when devising and setting the appropriate inspection frequency including the:
For example, a risk-based approach may dictate that more frequent inspections are required of a typical footway within a residential area due to a spate of complaints from members of the public or, even worse, reported accidents. All decisions must also be informed by clear competencies and expert analysis as the approach of neighbouring authorities will now be considered.
A risk-based approach requires closer analysis of the specific area in which a defect is located — together with a consideration of the hazards posed by that specific defect — in order to inform the required response. A defect considered to pose a low risk of harm may merit only a routine repair (or no repair at all). An item that is considered to pose a high risk of harm may merit immediate repair.
Local authorities may feel a sense of relief as when, in all likelihood, it may be that a form of risk assessment already informs policies and procedures in relation to the highway network.
Comment
What will become important under the new guidance is the local authority’s ability to explain and justify why it adopts the approach that it does. This justification is required of all aspects of your local authority’s highway inspection and maintenance regime.
Policy documents (and those persons responsible for drafting these documents) take on a new, even greater sense of importance. Such documents must be a source of information which is shared and adhered to, at all levels of the organisation.
The risk-based approach must be consistent and should be a two-way exchange of information. Highway inspectors should report their day-to-day experiences to policy drafters and management should ensure that inspectors are suitably trained and updated.
From October 2018 — so as to demonstrate adherence to the new guidance — local authorities will need to be able to justify their policies and base their procedures on clear evidence and sound engineering judgment.
Read other items in the Personal Injury Brief - September 2017
