The adoption of a new risk-based approach for local authority services

A new Code for highway authorities offers an opportunity to promote a fundamental change in the way highway infrastructure and services are managed.

This New Highway Code of Practice for Highway Maintenance Management (implemented on 28 October 2016) has been overseen by the UK Roads Liaison Group (UKRLG) and replaces the Well-Maintained Highways, Well-Lit Highways and Management of Highways Structures, in a comprehensive Code.

The introduction of the new Code seeks to promote a coordinated approach to asset management based on local needs, priorities and affordability. The document states that ‘a risk-based approach should be adopted for all aspects of highway infrastructure maintenance, including setting levels of service, inspections, responses, resilience, priorities and programmes’.

What’s new?

Local authorities will now need to adopt a risk based approach to their highway maintenance policy. The Code does not impose any prescriptive or minimum standards for intervention levels or the frequency of safety inspections. It is necessary for each local authority to establish and implement its own systems, appropriate to their circumstances. Local authorities can now set their own priorities based on their own risk assessment.

When will we see the impact?

Local authority highway authorities have until October 2018 to implement the new guidance with the previous code applying in the interim period. The two year lead time seemingly accepts that this new risk-based approach represents a significant change which will take some time to implement.

What does it mean for Local Authorities?

Local authorities will need to overhaul their current practices and reassess them in the new risk-based approach. Each authority’s highway network will need to be risk assessed based on usage, condition, previous accidents and complaints which will require liaising with other council departments and neighboring authorities to ensure users have route consistency.

This means that new highway asset management programmes will need to be developed on matters including the frequency of highway inspections, defect assessment and repair. The local authority must create and maintain documentation which:

• sets out their policies based on the risk-based approach, and
• evidence its implementation.

What does this mean for claims?

The Code will form the basis for accepted and expected practice in highway management and is likely to shape the future for highway liability claims. It includes 36 key recommendations for highway authorities, which will necessitate the development of new policies and procedures, which should be approved by relevant senior management and/or key local authority decision makers.

As with all Codes of Practice, they are evidence of good practice and are not usually mandatory standards but will form a reference point for courts in relation to their assessment of standards of care and whether there has been any breach.

The introduction of the Code does not alter the underlying legal duties or body of case law relating to failures to maintain the highway. The outcome of claims will still turn on their facts and the court will still be required to determine what constitutes an actionable defect and whether the local authority has taken reasonable care to identify and respond appropriately to a dangerous defect to road users.

Keoghs comment

The new Code provides local authorities with a golden opportunity to develop their own bespoke systems. Whilst initially this will represent a significant cost to local authorities, in the long run the changes will allow authorities greater flexibility, improved efficiency and provide an enhanced level of service to the public. The clock is however ticking and local authorities should be mindful that the new code can be adopted immediately, or alternatively they should be mindful that requirements need to be fully implemented by October 2018.

A copy of the full Code of Practice can be found here.

Keoghs will continue to monitor developments arising from implementation of the new Code and work with authorities and their insurers to support the development of risk-based systems in line with the Code’s aims.

For further information please contact:

Rachel Hewitt
Partner
T: 01204 678767
E: rhewitt@keoghs.co.uk

Lucy Walker
Partner
T: 01204 677006
E: lwalker@keoghs.co.uk