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The revised Highways Code of Practice: a seismic shift or business as usual?

20 March 2018

This article is taken from March's public matters newsletter. Click here to view more articles from this issue.

The date for highway authorities to adopt the risk based approach that underpins the Well-Managed Highway Infrastructure Code of Practice is fast approaching. With authorities working towards an end date for implementation of October 2018 there remains a degree of trepidation and uncertainty for many: is the revised policy ready to ‘go live’; will the processes put in place stand up to scrutiny; and how will the courts approach the revised code when faced with civil claims under the new regime?

There is no doubt that authorities can expect ever greater scrutiny of any policy adopted and also of the decision making of highway inspectors – many will have viewed the recent comments of the Assistant Coroner for Greater Manchester North at an inquest into the death of a cyclist with some concern:

“Whilst I was informed that highway inspectors have a discretion under both the current and new procedures to repair defects which do not meet the intervention or investigation criteria the jury noted inconsistencies in the application of the current procedure and I consider the new procedure will increase the risk of future deaths, in particular to cyclists.”

However, the flip side of the challenges that come with a move away from the prescribed nature of many previous policies is real opportunity for authorities to move towards a dynamic approach to highway maintenance that is envisaged under the new code. If authorities get it right there is the potential to develop a regime that genuinely works for them and, as specified in the code, develop "their approach in accordance with local needs, priorities and affordability".

Perhaps for the first time, authorities have the opportunity to tailor their highway maintenance policy to their own needs and challenges. If there is engagement at all levels of the authority – and persuasive evidence to justify policy decisions – authorities should feel confident, both in terms of adhering to the spirit of the revised code and ultimately defending civil claims. A true risk based approach to highway maintenance should also allay any fears of increased danger to users of highways – a true assessment of risk will be far more effective than working within the constraints of the previous regime.

So for some authorities the adoption of the principles of the new code will be a significant shift from where they were, where-as for others they will choose to maintain the status-quo. The approach will ultimately be influenced by the appetite for change, continued budgetary constraints, where priorities lie, and engagement by senior management. However, whatever direction is taken there will be an expectation that highway authorities will undertake a comprehensive review of their policy and collaborate with their neighbours during the process. If that is done authorities should not head towards October 2018 with the trepidation that there currently appears to be.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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