'Operation potholes'

Highway authorities have allocated significant resources to tackling potholes on Britain’s highways. Despite this, potholes continue to be a source of problems – causing damage to vehicles and presenting a potential safety hazard.

Whilst it is not possible to prevent potholes appearing as the causes are numerous, such as freezing temperatures for example, there are some potholes that could be preventable including when they have been caused by works of third party works such as those undertaken by utility companies.

According to the government, a new performance-based inspection system will mean that these companies could face financial penalties if they fail to restore road surfaces properly after carrying out street works.

The government’s announcement

The Department for Transport (DfT) has taken a keen interest in highways maintenance in the last year, having allocated councils in 2021 a share of £500 million for highways maintenance. This sum is expected to fix the equivalent of 10 million potholes across the UK.

On 13 May 2022, the DfT said it would be introducing measures to “penalise companies responsible for leaving potholes on roads after carrying out street works”. Although little detail has been provided at this stage, the announcement states:

  • Utility companies will be subject to a performance based inspection regime.
  • Failure to pass the inspection will result in financial penalties.
  • If a utility company fails the performance based inspection they will be inspected more regularly by local authorities.

According to the DfT, “While the majority of companies carry out street works to a high standard and pass inspections, utility companies are on average failing 9% of the inspections that are carried out, and the worst performing utility company is failing a significant 63% of its inspections”.

As such, the DfT anticipates that the law change could prevent thousands of potholes being left behind by utility companies and will ensure roads are resurfaced to a higher standard.

The current legal position

If a highway is dangerous because of the defective equipment of a utility company, both the local authority and utility company are potentially liable. If the highway is defective as a result of the failure of a utility company’s reinstatement then the local authority can redirect the claim to the utility company, although this redirection is not always straightforward. It can be time consuming and potentially lead to legal costs.

Whilst Section 70-73 of the New Roads and Street Works Act 1991 (the Act) places a duty on utility companies to reinstate, it is unclear if the announcement will amend the Act or result in a new legislation.

Comment

Ultimately, less potholes will reduce the risk of accidents and injuries and also result in less resources being allocated to repairs. Reducing the number of potholes will also result in less legal claims.

However it is possible that further resources may be required to inspect works undertaken by utility companies, unless those companies are required to provide evidence such as photos of the work, which may be in their interest to do so to avoid financial penalties.

If inspections are required it may be that there will be provision for local authorities and/or highway authorities to charge utility companies for the inspections they have to complete. Further, the proposed changes have the potential to help reduce the expenses local authorities’ insurance departments incur defending pothole claims.

The level of the fines may be key to ensuring compliance, although it is unclear whether the fine will be payable by the local authority or the government.