New Highways Code of Practice
Work is underway to review the UK Roads Liaison Group (UKRLG) Codes of Practice. The new code, likely to be called ‘Well-managed Highway Infrastructure’, will comprise an overarching document covering highways, lighting and structures.
In this article Perry Hill, Partner at DWF and Colette Dark, Director – Risk Control at Gallagher Bassett examine some of the key changes and potential impact on highway liability claims.
The underpinning principle of the new code is that highway authorities will adopt a risk-based approach to asset management in accordance with local needs, priorities and affordability. The code will not therefore outline any minimum or default standards but will include guidance and advice to support development of local levels of service.
What will be the status of the new code?
CD: The old code, Well – maintained Highways, clearly stated that it was guidance and not mandatory. It did also however acknowledge that in legal proceedings it was regarded as a ‘relevant consideration’. In the latest draft of the new code, the status paragraph is still to be drafted (para 1.2 on page 9). It is hard to see that the status will change from that of the old code.
PH: The Court of Appeal decision in TR v Devon County Council  makes clear that the existing code is simply evidence of good practice. Failure to follow the guidance in the existing code does not mean that a council cannot successfully defend a claim under section 58 Highways Act 1980. It is likely the courts will adopt a very similar approach to the new code.
Applying a risk-based approach to safety inspections
Going forward it will be for the highway authority to determine safety inspection frequencies using a risk-based approach (RBA). The code does provide a list of items to be considered when determining inspection frequencies (5.8.7). This includes:
CD: In our experience a number of authorities rarely get beyond the category of road in setting the safety inspection frequency. For them a considerable amount of work will be required if they are to evidence that their inspection system has been determined following a comprehensive review of the risks.
It is interesting to see mentioned in the list above, the approach taken by adjoining highway authorities. One can imagine difficulties in defending, for example, a six monthly inspection regime for a stretch of road that crosses the boundary with a neighbouring authority which has determined a three monthly inspection for the adjoining stretch with near identical characteristics.
We might expect to see an increase in challenges to the underlying basis of the risk based approach applied. In particular, where neighbours with similar networks have implemented markedly different standards. Perhaps one of the key risk management messages is the need for close collaboration to seek to harmonise the approach with similar authorities.
PH: There is no doubt that adopting a risk-based approach will be challenging for a number of authorities. Most highway authorities may of course already have considered many of these issues when categorising their roads under the existing regime but it will be the evidencing of this which will be crucial to the successful defence of claims.
There will be a key role for the risk management team at the authority to get involved and make sure the risk based approach is being adopted and, crucially, evidenced - particularly when decisions are made to reduce the inspection regime for a particular area of highway, or to change the nature of inspections from walked to driven or vice versa. There will remain the issue of affordability and it remains to be seen how the application of the new code will be interpreted in the light of Wilkinson v City of YorkCouncil  in which the Court of Appeal held that a s.58 defence was not available to a highway authority which had allocated its resources to more pressing needs, rather than doing what was reasonably required to make the road safe.
Of course many of the factors that the new code requires authorities to consider are very similar to the often ignored factors that a court should take into account in the statutory defence under section 58(2) Highways Act 1980. So, documenting these considerations should assist the prospects of successfully raising the statutory defence. The role of the highway manager in giving evidence on the systems and processes in place becomes as important, if not more important, than the inspector.
What changes are there to defect recording and repair?
CD - The new code notes that although some general guidance can be given on the likely risk associated with particular defects, on-site judgement will always need to take account of particular circumstances. It recommends that authorities adopt defect investigatory levels and that defects at or in excess of such levels be assessed for likely risk and action taken in accordance with the risk-based repair regime.
In many ways this is similar to the recommendations of the outgoing code and reflects what we know to be current best practice.
PH – The underlying law will not change – whether a defect is dangerous or not will be determined by the court on a case by case basis and there are no hard and fast rules as to what constitutes a danger. The highways inspector’s decision on the ground will remain crucial and if it can be demonstrated that they have determined using a risk based approach that at the time of their inspection a defect was not dangerous, then that will be very persuasive.
Competencies and training
This is a key theme throughout the new code. Section 5.3.2 states:
Those involved in developing and implementing the RBA must be competent. ……authorities should provide clear guidance and training to employees in the RBA. This should include establishment of the RBA itself and practical implementation, e.g. safety and other inspections and making the right choices when designing and specifying techniques and materials. The training should recognise the possibility of legal challenge to decisions
There is a clear indication that competency in risk is required at the strategic level with the need to embed the approach into the overall asset management plan. Reference is made to ISO 31000 and there may be opportunities here for the risk manager to provide support and guidance to colleagues in highways to understand and apply this standard.
At an operational level there is also the need to ensure competence. Several references are made within the code with regard to the standard of training provided to highway inspectors and in Part 2 section 5.19.7 states that authorities should ensure that highway inspectors are trained, qualified and competent in the identification and assessment of defects, including potholes, through a scheme accredited by the Highway Inspectors Board.
CD - Current best practice would be that Highway Inspectors are trained and experienced. However such training is not always to an accredited scheme as seems to be the requirement in the latest draft of the new code.
PH – the emphasis on the new code on training means that witness statements of both highways inspectors and managers should deal with their qualifications and training. Witnesses can expect to be cross-examined about such training if it is not dealt with.
What is the timescale for implementation of the new code?
PH – after the last period of consultation things went quiet for a while but at a meeting of the UKRLG in April 2016 the Department for Transport said the aim would be introduce the code in September 2016.
CD - There will be a period of time (yet to be determined but likely to be approximately 2 years) to enable authorities to move to the new approach. There is potential for confusion to arise with claims occurring during this crossover period as to what approach or regime is to be applied.
DWF and Gallagher Bassett will continue to monitor developments on the implementation of the new code and any changes to it before implementation. Watch this space for more updates and thoughts on how authorities, their insurers and legal advisors can all work together to ensure the smooth implementation of this code when it is finalised.
For further information please contact Perry Hill on +44 (0)207 645 9536 or firstname.lastname@example.org
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.