08 November, 2016
The long awaited new highways code of practice, "Well-managed Highway Infrastructure: A Code of Practice" has now been released. The 256 page overarching document supersedes the previous Well-maintained Highways, Well-lit Highways, and Management of Highway Structures codes.
Under the new Code emphasis has moved away from specific guidance to a risk-based approach to be determined by each Highway Authority, there are no longer minimum or default standards specified in the new Code of Practice.
The intention behind the new Code is to allow Highway Authorities to develop their own levels of service in accordance with individual local needs, priorities and affordability. The new Code devolves power to Local Authorities to set their own level of service, including investment, levels of service, operations (including safety and condition inspections), and repair priorities. The Code is drafted to allow individual Authorities to tailor their budget to meet specific local requirements, for instance, it allows those Authorities with extensive rural networks to prioritise and focus resources to areas most in need.
The Code is not statutory but it does provide Highway Authorities with crucial guidance on highway management. The extent to which the recommendations will be adopted is ultimately a matter for each Highway Authority. However, the Courts will look to the new Code as an example of good practice and there will be an expectation on Highway Authorities to comply the Code.
The Code includes 36 key recommendations for Highway Authorities. Part B is specific to Highways, and deals with inspections, assessments and recording. New policies and procedures adopted by local authorities should be fully documented and approved by senior decision makers.
The new Code describes the establishment of an effective regime of inspection as the 'most crucial component' of highway infrastructure maintenance. The Code expects Authorities to carry out an assessment to determine the types and frequency of inspection, items to be recorded and the nature of the response.
It is specifically stated that inspection regimes should be developed based on a risk assessment and provide a "practical and reasonable approach to the risks and potential consequences identified". It should take account of potential risks to all users, and in particular those most vulnerable.
The Code also provides a list of items Highway Authorities ought to consider when determining the frequencies for safety inspections:
Whilst Authorities are permitted to determine the most appropriate way to undertake inspections; the new Code advocates a collaborative approach with neighbouring adjoining highway networks to enable route consistencies for users.
It is expected that the inspection regime ought to be applied "systematically and consistently". This will be particularly important in the context of legal proceedings.
Minimum intervention levels are no longer specified in the Code, instead all defects highlighted during safety inspections must be recorded and the level of response determined on the basis of risk assessment.
The Code stresses that whilst general guidance can be given by authorities on the likely risk associated with particular defects, on-site judgment will always need to take account of the particular circumstances. Potholes are used as an illustrative example, it is noted that the degree of risk from a pothole depends upon not merely its depth but also the surface area and location.
When it comes to prioritising repairs, priorities will be determined exclusively on the basis of risk assessment. Authorities are expected to adopt permanent repairs as the first choice. Priority of repair should be determined by risk assessment.
The Code specifies that inspections must be carried out by competent personnel. Registration with the Highway Inspectors Board is encouraged as it can contribute positively to risk management and defence of compensation or liability cases.
With emphasis on the discretion of inspectors carrying out inspections, it is likely that legal proceedings may focus on the training and competency of staff. The Code encourages Highway Authorities to maintain a formal written record system to monitor the training and competence of each individual.
Local Authorities now have two years to implement the new risk-based approach which in practice is likely to require Authorities to draft their own Codes and service standards.
The new Code represents a fundamental change in the way highway infrastructure is managed. In the past, the Courts have often looked to the Code of Practice as a minimum standard, and claimants have regularly sought to argue that departures from the national Code invalidates any Section 58 defence. Specific guidance on inspection frequencies, defect intervention levels and repair response times have now been removed from the Code and Highway Authorities will now need to provide evidence of risk assessments and fully considered highway policies to support decisions.
We anticipate new lines of arguments developing based on the competency of staff, comparisons with neighbouring Authorities, priorities of local authorities and affordability. However, ultimately the less rigid system should allow Authorities to defend more claims. Although, in the short term there is likely to be uncertainty as the risk based approach beds into the system.
Forbes have been working closely with a number of Local Authorities in preparation for the release of the New Code, which was first due to be published in 2015. It is hoped that now the new Code has been released that Local Authorities can properly finalise and implement their own service standards without fear of reprisal as a result of departing from a national recommended standard.
A link to the New Code can be found here.