Are councils ready for the new highways code of practice?

  • A two-year transition period for local authorities to prepare for the new highways code of practice, Well-Managed Highway Infrastructure, ended on 28 October
  • The new code advocates a risk-based approach to highways asset management
  • While councils have worked hard to update their policies to align with the code, actually implementing these new policies could prove more of a challenge

As the two-year transition period for the Department of Transport (DfT)’s new highways code of practice – Well-Managed Highway Infrastructure – drew to a close, many local authorities faced a race against time to get their revised highways asset management policies finalised and signed off.

Having negotiated that challenge, some councils now face the task of putting their new policies into practice.

Clive Speed, Regional Senior Claims Service Manager, Zurich Municipal, says: “We were recently informed by a local authority that, whilst they have finalised their new policy, they would not be in a position to implement it until April 2019, and we were asked if this would be a problem. Our advice is to only adopt a new policy if you can actually deliver what you are saying you will.

“There are likely to be other councils in a similar position, and indeed at the oral hearing on 3 December 2018, before the Transport Select Committee’s Inquiry into Local Roads Funding, the expert witnesses suggested that only one-third of local councils were fully compliant with the new code (see questions 140 and 145 on this Transport Select Committee transcript).

“It is important to remember that, whilst the DfT required local councils to adopt the new code by the end of October 2018, the law has not changed and the code is simply a guidance document to best practice. Councils who have not yet adopted the new code but are still operating robust systems of inspection and maintenance should still find claims to be defensible.

“Councils should not however be complacent, and it is still a requirement to adopt and implement the new code.

“We are now in a transitional phase where councils, lawyers and insurers get to grips with the new code and the implementation of a risk-based approach, and we are likely to see the case law develop in response.”

What’s different about the new highways code of practice?

The new code requires local authorities to adopt a risk-based approach to managing their highways assets. Councils must be able to clearly evidence the rationale for any decisions relating to the upkeep of their highways network, including the frequency of maintenance and inspections, and the time-frames in which they carry out repairs.

Why are some councils struggling to implement new highways asset management policies?

Essentially, it is a matter of time and resources. Some local authorities have opted to wait and see what their neighbouring authorities are doing before taking action themselves.

This cautious outlook is perhaps understandable, given that claimants’ lawyers will be keen to exploit any differences in approach between neighbouring authorities. However, it has meant that some councils have struggled to not only get a new policy written and approved in time, but also to put in place the resources required to implement it.

The danger of taking a one-size-fits-all approach

Councils need to ensure their policies accurately reflect the unique risk profile of their highways network. Whilst collaboration between councils is very important and is a specific recommendation of the new code, time constraints may lead to a temptation to use part or all of a neighbouring authority’s policy.

Evidencing consistency between neighbouring councils is fine, but you need to ensure there is an evidence trail to show that your own policy is unique to your authority and is specifically designed to manage your individual highways risks.

The importance of training

Because the new code advocates a risk-based approach, highways asset management policies should, in theory, give highways inspectors more flexibility to decide for themselves whether or not a defect is dangerous, and to authorise repairs accordingly.

Clive says: “In the past, a defect might not have met the very prescriptive criteria for repairs because it hadn’t reached a certain size. The principle behind the new risk-based approach is that highways inspectors should be able to consider all relevant factors, including the location of a defect, and the likelihood of somebody actually sustaining an injury.”

The training and guidance given to highways inspectors – and anybody else with responsibility for highways asset management – therefore becomes more important, particularly when it comes to defending claims.

Evidencing the rationale behind highways decisions

“Claimants’ lawyers will ask for evidence of highways professionals’ training, qualifications and competencies,” says Clive. “It’s important local authorities can produce evidence to demonstrate the people they are employing are competent in what they do. In fact, it’s important they can evidence the rationale behind all their decisions relating to highways asset management.”

Zurich Municipal has conducted mock trials with local authorities to ‘stress-test’ their new highways asset management policies.

“At one event, we had a barrister cross-examining some very experienced highways managers on their new policies,” says Clive. “The stress-test highlighted a number of issues that would have been fatal to the defence had they been played out in a real courtroom. The problem wasn’t so much the policies themselves, but the fact that they struggled to evidence the decision-making process showing how each council had arrived at their new risk-based policy.”

How we can support you on highways asset management

Although the transition period has passed, there is still time for local authorities to address any weaknesses that could jeopardise their claims defensibility.

Clive says: “It’s not too late to produce a fairly simple supplementary document, highlighting any changes your policy has introduced, and the risk-based rationale behind those changes.

“We can support customers who are having challenges in implementing their policies. While the transition period has passed, the opportunity is still there for us to work with customers to help them manage their highways risks.”