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?

Highways InProfile

latest magazine issue
Highways jobs

Principal Transport Planner (Strategy)

£46,731-£49,764
We are looking for an experienced professional to join North Northamptonshire Council as a Principal Transport Planner (Strategy). Sheerness House, 41 Meadow Road, Kettering moving to Haylock House, Kettering Parkway, Kettering NN15 6EY, United Kingdom
Recruiter: North Northamptonshire Council

Highways Capital Delivery Manager

£50,788 - £52,805
To be responsible for the implementation of Welsh Government’s Renewal and Upgrade programme. Baglan, Port Talbot
Recruiter: South Wales Trunk Road Agent

Senior Engineer x 2

£47,532 –£55,620 per annum
Our people are deeply committed to providing excellent services to our residents, doing all we can to make lives as good as they can be. Hounslow (City/Town), London (Greater)
Recruiter: Hounslow London Borough Council

Electrical Design Engineer

Grade 9 £34,314 to £37,938 - Grade 10 £37,035 to £40,476 - Grade 11 £39,513 to £43,693 - Grade 12 £42,708 to £46,731 p.a.
The Construction Consultancy Services (CCS) team provide client-side construction consultancy services across a range of professional disciplines to d Durham
Recruiter: Durham County Council

Park Operations Assistant - Thorndon Country Park

Up to £12540.50 per annum
This is a permanent, part time position on an annualised hours contract. This means you will be contracted to work a minimum of 964.59 hours per yea England, Essex, Brentwood
Recruiter: Essex County Council

Senior Highways Engineer

£50,754 – £53,607 per annum
Our people are deeply committed to providing excellent services to our residents, doing all we can to make lives as good as they can be. Hounslow (City/Town), London (Greater)
Recruiter: Hounslow London Borough Council

Highways Capital Lead

£47,754 - £50,788
To be responsible for management of the Regional Highway Capital Delivery Teams South Wales
Recruiter: South Wales Trunk Road Agent

Senior Development Management Engineer

£37,938 - £44,711
In line with our One Coventry Values, we want to ensure that our communities are represented across our workforce Coventry, West Midlands
Recruiter: Coventry City Council

Head of Highways

£66,366 - £85,284 pa
Highway Operations is a large division within the Planning, Growth & Infrastructure. Enfield (City/Town), London (Greater)
Recruiter: Enfield London Borough Council

Director Highways, Transport & Waste Management

up to £120k
There for Nottinghamshire. There for each other. There for you. Nottinghamshire
Recruiter: Nottinghamshire County Council

Director of Highways and Transportation

£126,909
We’re seeking a dynamic and innovative leader to spearhead our Highways and Transportation services. Essex
Recruiter: Essex County Council

Senior Structures Technician

£32,654 - £36,124 plus circa £2000 - £4000 OT (variable
To lead on the planning, delivery and reporting of the highway structures General Inspection programme. Baglan, Port Talbot
Recruiter: South Wales Trunk Road Agent

Assistant Director of Place Operations

£85,962 to £93,267
Bury is a proud and prosperous borough Bury, Greater Manchester
Recruiter: Bury Council

Career Grade Transport Planner (Carer Grade 6-8)

Grade 06 (£29,093 - £32,654) TO Grade 08 (£37,938 - £41,511)
This is a fantastic opportunity to work for a forward thinking and dynamic transport authority located in the heart of the North West Warrington, Cheshire
Recruiter: Warrington Borough Council

Principal Performance and Assurance Manager

£Competitive
We have an exciting opportunity for a highly motivated Principal Performance and Assurance Manager to join our Senior Management Team SBIM Avonmouth, Bristol
Recruiter: Amey

Principal Construction Manager

£Competitive
We are excited to offer a fantastic opportunity for a Permanent Principal Construction Manager to join our dynamic Area 12 West Yorkshire
Recruiter: Amey

Electrician

£Competitive
We are excited to offer a fantastic opportunity for two Permanent Electricians Tingley, Wakefield
Recruiter: Amey

Principal Engineer – Structures Capital Delivery

£43,693 - £47,754
To act as one of the Agent's technical experts for highway structures schemes and related issues South Wales
Recruiter: South Wales Trunk Road Agent

Senior Engineer Programme Management

£36,124 - £39,513
To support the Principal Engineer ensuring effective co-ordination, programming and contract administration. South Wales
Recruiter: South Wales Trunk Road Agent

Senior Engineer – Structures Delivery

£36,124 - £39,513
To support the Principal Engineer Structures (Capital Works) and deputise if necessary South Wales
Recruiter: South Wales Trunk Road Agent
SUBSCRIBE NOW

Latest Video

Subscribe to Highways today to ensure you keep your finger on the pulse of everything happening in the UK road network throughout the year.

SUBSCRIBE NOW