Comment: The Highways Act (Amendment) Bill - reasonable versus possible

11/04/2024
Clive Hall

Highway consultant and chartered Civil Engineer Clive Hall discusses the potential impact of the Highways Act 1980 (Amendment) Bill.

On 19 April, the second reading of a Private Members Bill proposing to amend section 58 of the Highways Act 1980 to restrict the defences available to highway authorities will be heard in Parliament.

While it has some way to go before being made into law, and Private Members Bills always face an uphill struggle, the amendment would have a major impact if passed.

As drafted, it seeks to amend the special defence in action against a highway authority for damages for non-repair of a highway. Currently, to defend any third-party claim for damages under section 58, the highway authority must take 'such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic'.

In practice, this could mean proving that it has a reasonable system of inspection and repair in place and - particularly under the new code of practice Well-managed highway infrastructure - one that takes account of the character and usage of the highway in question.

Under the new bill, the authority would have to prove it has ‘taken all possible steps’ to secure that the part of the highway in question is not dangerous to traffic.

On top of this, when considering a section 58 defence the courts would have to consider ‘whether the highway authority had, within the previous six months, carried out a full survey of the condition of the highway to which the action relates, the date on which that section of the highway was last repaired and the date on which that section of the highway was last subject to surface dressing’.

Highway authorities would also have to provide a claimant within 28 days ‘all the documentary and other evidence upon which the highway authority seeks to rely in its defence’.

Clearly, the intent is to shift the dial towards the claimant and to create a new standard for routine maintenance.

The proposed amendment appears to try to counter the erosion of maintenance standards through, in effect, the prescription of a minimum survey frequency of six months and the requirement to evidence maintenance plans.

This is a significant shift, when the latest code of best practice has deliberately sought to remove a reliance on prescription, replacing it with the risk-based approach.

The public might see this as making sense - shouldn’t a highway authority know when it last carried out repairs to any of its roads, and when they were last surface dressed? And indeed, under the Network North funding programme, the Department for Transport has already asked for routine updates on resurfacing and maintenance works.

The logic of the Bill is that if the last time any maintenance happened was long ago, or so insignificant to have not even been recorded, then surely that is why the defect exists.

The intended consequence of this proposed amendment is clear, but what of the unintended consequences? The amendment presumes that ‘all possible steps’ is a higher bar than ‘such care as in all the circumstances was reasonably required’. It’s the art of the possible versus what is reasonable.

The presumption is that given the various technologies available, it is possible for the council to roughly know when potholes appear and get them repaired on a fairly quick and regular cycle. The counterargument is that even if the defect is known, it’s impossible, within the bounds of the available resources, to respond to all defects in a quick time.

Indeed, councils might argue that they are so cash-strapped it is impossible to sustain the systems of inspection and repair they currently operate. If a court accepted this, ‘all possible steps’ could become a lower bar than what was ‘reasonably required’. This is not the intended consequence of this proposed amendment, one imagines.

But the courts have historically found it hard to decide on the issues arising from limited financial resources and the need for reasonable maintenance – something the code of practice again sought to address.

The questions remain: what is possible with the money available and what highway condition would the revised section 58(2) presume to be sound?

Would this amended Section 58 (2) encourage a minimum acceptable frequency for surfacing and surface dressing to be established through case law? If the records show the road was last surface-dressed five years ago would the defence hold? What about 10 or 15?

Ultimately, this proposal is motivated by the desire to see the burden suffered by highway user reduced. Few in the general public would argue against that. However, amending Section 58 in this way may not achieve this, when the real issue is that the local road network needs a massive step change in investment if it is to be kept in a stable state, greater investment still, if its condition is to be improved.

Without a sustained increase in investment in our local roads and the application of good asset management, over time the burden on highway users will grow, or indirectly through the demand placed on the public purse by compensation.

More investment might be only reasonable, but is it possible?

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