Following on from Europe’s largest dedicated road, traffic, parking and transport conference, Traffex, key speaker and Consultant Solicitor Steven Conway discusses the concept of affordability in relation to the new Well-managed Highway Infrastructure Code of Practice.
The underpinning principle of Well-managed Highway Infrastructure is that highway authorities will adopt a risk-based approach in accordance with local needs, priorities and affordability. The risk-based approach to highway infrastructure maintenance is, essentially, based on an understanding of the highway network, the potential risks and an appreciation of their likely significance.
Since the introduction of the new Code of Practice in October 2016 there has been much discussion as to how local authorities can implement the new Code. It is clear from these discussions that many have reservations about the concept of affordability.
Local authorities are struggling to comply with their statutory obligations in many areas, be it social care, education or highways maintenance, due to financial constraints.
However, it has long been settled law, last confirmed by the Court of Appeal in Wilkinson v City of York  that affordability, or financial constraints, is not a relevant consideration for the courts to take into account in determining whether a local authority has a statutory defence to a highways claim under section 58 Highways Act 1980. The defence requires an authority to show that it had taken 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.
Is it however time for a change in the law, for the courts to take account of the reality of the situation, which is that with limited resources, there is only so much a local authority can do?
The Department for Transport appears to agree with this argument, and with the new Code of Practice we have a new concept mentioned in the Code for the first time: affordability. The new Code states that delivery of a safe and well-maintained highway network relies on good evidence and sound engineering judgment. The intention of the Code is that authorities will develop their own local levels of service in accordance with local needs, priorities and affordability.
Well Managed Highway Liability Risk
The new Well Managed Highway Liability Risk guide also makes clear that it is not possible for reasons of practicality and affordability for any highway authority to maintain all of its highway infrastructure in an as-new, defect-free condition all of the time, nor does the law require them to do so.
In setting standards for maintenance management for any particular category of highway, the authority has to take into account the financial and other resources that it can reasonably make available for the purposes of highway maintenance within its total resources for all its functions. Highway authorities’ resources, both operational and financial, are finite. This reinforces the need for a risk-based approach to the inspection, identification and repair or removal of defects and hazards.
The Department for Transport's View
It seems that the Department for Transport are also prepared to lend force to this argument. Steve Berry, Head of Local Highways Maintenance at the Department for Transport has said that he wants the courts to take another look at the issue of affordability: “The Courts actually need to understand that there are funding constraints and local authorities are managing their networks as best they can with the finances provided.”
The concept of affordability acknowledges the financial constraints highway authorities face, but it is recognised that the legal position will need to evolve to give effect to this.
The revised Code has provided authorities with a new argument. And with the backing of the revised Code, and the support of the Department for Transport, surely it is time to take the issue back before the courts?