Highway maintenance code on the road to recovery?

06 Feb 2015

A review of the national Code of Practice for highway maintenance will be welcomed by highway authorities who have criticised the current guidelines for setting impossibly high standards.

The code of practice, entitled ‘Well Maintained Highways’ (WMH) was introduced by the Department for Transport almost 10 years ago. Much has changed in that time, particularly the state of the nation’s roads and the funds available to maintain them, but the guidance for local highway authorities remains essentially unchanged.

Now is the time for local authorities to engage with the Department for Transport’s (DfT) review and take advantage of this opportunity to help shape future standards.

The code in practice

In recent years the Code has received increased attention from claimants pursuing personal injury claims, culminating in 2012 in the case of TR v Devon [2012] EWHC 796 (QB) (covered in BLM’s The Authority June 2013) in which the High Court held that Devon County Council’s failure to follow the procedures promoted in the Code when setting its own policy justified a finding of liability.

That decision was swiftly overturned by the Court of Appeal [2013] EWCA Civ 418 in an important decision which ruled that the Code was not mandatory and amounted to no more than evidence as to good practice, which highway authorities could adopt or amend to suit their own local needs.

However, any guidance endorsed by the DfT and the Local Government Association, among others, is inevitably authoritative and persuasive. The issue for highway authorities remains post-Devon whether they can produce evidence justifying any decision not to adopt the Code’s recommendations in full and whether the courts will be prepared to accept their justification, particularly with the emphasis placed by the Court of Appeal on the circumstances of the individual case.

In view of the irrelevance of the availability of resources – following the decision of the Court of Appeal in Wilkinson v York 2011 – many highway authorities continue to feel that WMH sets impossibly high standards and amounts to a counsel of perfection.

Relief in sight?

In summer 2014 the DfT finally announced its long awaited review of WMH, which would be carried out by design, engineering and project management consultancy, Atkins, which drafted the 2005 document.

A progress report and details of the aims of the review were released in a webinar hosted by DfT and Atkins in December.

The guiding principle of the review will be increased emphasis on a “risk based approach” to highway maintenance, which is evidence based and “aimed at reducing the overall cost of the highway service while not compromising (highway authorities’) statutory duties”.

The review will focus upon several areas which are of key importance to highway authorities in a claims context.

The revised Code will provide enhanced guidance to highway authorities on the implementation of a “risk based approach” to maintenance which, it is firmly believed, is the key to delivering efficiency. The current guidance as to inspection frequency and repair response times, particularly for Category 1 defects, is to be revisited.

There will be a move away from defined outcomes. Instead, the Code will identify the questions which highway authorities must ask, and answer, for themselves. The review aims to avoid the new Code being presented by lawyers as setting the standards which highway authorities must achieve.

What will this mean in practice?

The increased emphasis upon a risk based approach to inspections and response times (which already features in the current Code) will discourage a ‘one size fits all’ approach to frequency and defect categorisation. It will give highway authorities more flexibility but will bring much more scrutiny upon the decisions of individual highways officers and inspectors; a change already started by Devon. At the same time any minimum standards or case studies still risk being seized upon by claimants as benchmarks.

The revised document will be underpinned by the current drive for efficiency in highway management, with its emphasis on pre-emptive and preventative maintenance. The existing guidance in the Highways Maintenance Efficiency Programme and Highway Infrastructure Asset Management is explicitly recognised as the foundation for future policy, and funding allocation for highway authorities will continue to reward those who can demonstrate the greatest progress in those areas.

Areas of concern

Shifting the focus of highway maintenance to preventative maintenance is likely to remain a significant challenge for those highway authorities worst affected by deteriorating networks and never-ending lists of pot hole repairs.

A risk based approach to inspection frequency, taking into account the characteristics of individual roads, will have significant implications in terms of management resources, with those authorities who have lost senior staff through previous efficiencies being worst affected.

It also remains to be seen how the courts will react to changes such as longer response times, which allow for more cost efficient permanent repairs.

The review, which is scheduled to conclude in the Autumn, is currently in the consultation phase, with a series of workshops planned for February and March.

Despite the fact that local authorities have a clear vested interest in ensuring that the review takes account of the realities of balancing ever increasing demands and ever decreasing budgets, the December webinar and current consultation appear to have been relatively unpublicised.

Any review can only be as good as the input it receives and it is somewhat disconcerting that attendance at the forthcoming workshops will be by invitation only.

Your opportunity

Local highway authorities need to take the opportunity which this review, and the current consultation, affords to try to influence the standards by which they will be measured for, perhaps, the next 10 years. Details of the webinar and workshops, and how to register interest in attending, can be found on the UKRLG website.

BLM will continue to monitor and report on developments as the review proceeds.

Please contact BLM public sector partner Paul McClorey for further information (paul.mcclorey@blmlaw.com).

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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