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Well-managed Highway Infrastructure: new Code of Practice published

In our Summer Brief, Perry Hill, DWF and Colette Dark, Gallagher Bassett looked at the proposed changes to the highways code of practice and potential impact on highway liability claims. Following publication of the Well Managed Highway Infrastructure Code of Practice at the end of October, John Palmer and Perry Hill now examine the implications for local authorities of implementation of the new Code and opportunities for reviewing strategies and practices. 

The new Code

The final version of the Well-Managed Highway Infrastructure Code of Practice was published on 28 October 2016.  Local authorities therefore have until 28 October 2018 to implement it.    

The new Code replaces the Well-Maintained Highways Code of Practice for Highway Maintenance Management dated July 2005.

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 new Code, like the old, is guidance only and does not have statutory effect but again, like the old code, non-compliance with it could mean the local authority is unable to successfully mount a section 58 Highways Act 1980 defence. 

There is no doubt that the adoption of the risk based approach will lead to some front-loading of resources, with authorities having to review each highway within their jurisdiction.  However, provided this is done, it may well make statutory defences to claims more robust which could ultimately lead to significant costs savings.

Frequency of inspections

Moreover, when a risk matrix is used to assess and analyse the frequency at which roads are to be inspected, it may lead to the frequency of inspection required for a particular category of road being reduced, i.e. from six monthly inspections to annual inspections, hence achieving costs savings. Likewise, it may also be possible to increase what will now be called ‘investigatory levels’. The Code gives detailed guidance on the factors to be applied when authorities carry out their risk based approach, many of which mirror the guidance set out in section 58(2) of the 1980 Act.  Any review should include accident claims and accident reports data. 

Needless to say, if an inspection regime has been reduced due to the adoption of the risk based approach, this is likely to be subject to challenge by the claimant in court. It is essential that evidence is collated and available for production appropriately when needed to demonstrate the reasons why inspection frequencies have been changed.  

Co-operation between authorities

The new Code also encourages collaboration between authorities (Recommendation 5) when setting policies.  Co-operating and sharing policies are not only evidence of best practice but are likely to reduce areas of possible challenge.  It would be a brave claimant who sought to challenge a policy or frequency of inspection of a particular category of road, for example, if the same policy was adopted by a group of authorities.  

An opportunity for review

Careful analysis will be needed over the coming months.  Authorities now have two years to get their respective houses in order.  For highways that span neighbouring authorities, consistency of inspection regimes for those highways will be crucial. 

As part of the Code of Practice review, now is an excellent time to also review all practices and procedures in place for dealing with highway claims to ensure that cases can be handled quickly and efficiently within the Protocol period.  This is particularly important in times of Qualified One Way Costs Shifting when, generally, costs cannot be recovered by the authority, even if a claim is successfully defended to trial.

We are currently working with a number of clients, reviewing strategies, practices and procedures - should any assistance be required, please contact John Palmer or Perry Hill.

Contact

For further information please contact John Palmer, Director on +44 (0) 20 7645 9576 or at john.palmer@dwf.law or Perry Hill, Partner on +44 (0)207 645 9536 or perry.hill@dwf.law

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New Highways Code of Practice

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.

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