Will TfL be the test case for the new highways code of practice?


Transport for London’s (TfL) plans to cut back on maintenance and renewals on its road network could leave it open to legal challenge, an expert in local authority law has warned.

The capital’s transport authority appears to have set itself up as a potential test case over the complex issue of affordability under the new highways national code of practice.

It follows an announcement by TfL that ‘all non-essential road improvements have been paused for two years’ in the face of central Government funding cuts.

The TfL Business Plan states: ‘Given the end to Government funding of the road network, this will mean a slight dip in asset condition from current levels. Activities will be prioritised using a risk-based approach so we get the best results for our investment.’

The new code of practice Well-managed Highway Infrastructure is not a statutory document but is often taken by courts as a benchmark for how highway authorities fulfil their statutory duty.

The latest code suggests affordability is a factor when it comes to prioritising a risk-based approach to highways maintenance however case law, particularly Wilkinson -v- City of York, has confirmed that a lack of resources is not a defence.

In linking funding levels to its risk-based approach priorities, TfL could have set itself up for a potential test case to establish whether the Wilkinson judgement might be overturned following the new code.

The code of practice was released in October 2016 and highway authorities have until 28 October this year to implement it.

The TfL Business Plan adds: ‘Our investment in maintenance and renewals aims to ensure network safety and provide a serviceable level of “state of good repair” for all highway assets, including carriageways, footways, traffic signals, bridges, tunnels, street lighting, drainage and trees.’

Steven Conway, a solicitor from Keystone Law who specialises in acting for local authorities, told Transport Network: 'It looks like TfL are seeking to develop their own levels of service “in accordance with local needs, priorities and affordability", which is entirely consistent with the recommendations in the new highways code of practice.'

However, he added: 'In relation to highway maintenance, this approach does not sit well with existing case law, which is that the concept of affordability, or budgetary constraints does not feature in a consideration of whether an authority can have the benefit of the statutory defence to a claim for damages for highway disrepair. I think that it is only a matter of time before this issue is brought back before the courts and I can therefore see TfL being challenged on it.

'I think it is now however open for TfL and other highway authorities to argue that as it is in the new code, it is a factor which the courts should take in to account in determining whether an authority has complied with the relevant standards.'

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