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Use of the 'Well-Maintained Highways' Code of Practice

In Devon CC v TR [2013] EWCA Civ 418 the Court of Appeal gave guidance on the use of the non-statutory code of practice produced by the Roads Liaison Group under the title 'Well-Maintained Highways'.

The code of practice provides guidance to Highway Authorities on complying with their duty under s.41 Highways Act 1980. TR lost control of his vehicle while driving over a damaged part of a road in Devon. Devon CC had categorised the road as a secondary distributor road. The 'Well-Maintained Highways' code of practice recommended monthly inspections for such roads but Devon specified an inspection frequency of 6 months for the road. The judge at first instance held that Devon had not made out the statutory defence under s.58 Highways Act 1980 because it had not justified its departure from the code of practice. The 6 monthly inspection interval appeared to be longstanding, with no record of any consideration or review of this being a departure from the code of practice. 

The Court of Appeal held that the judge fell into error as, although she had noted that the code of practice was non-mandatory, she had effectively treated it as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it. Whilst the code of practice is clearly evidence of good practice, its status must not be overstated and it does not set out mandatory rules. 

Although it would be wise for local authorities to make explicit reasons for adopting different policies to the code of practice, it would not of itself amount to a want of reasonable care to adopt a different policy without carrying out and recording a process of reasoning for departing from the code. 

In finding that 6 monthly inspections were insufficient, the judge also relied on the fact that at every inspection of the road in question, it was found to have numerous significant safety defects calling for urgent repair. Despite repair similar defects appeared every time, especially after the harvest period involving movement of agricultural vehicles, which came after the last inspection and before the accident. On this basis the Court of Appeal upheld the judge's finding that the statutory defence had not been made out, while rejecting her approach to the code of practice.

Jane Clifton / 1st Jun 2013


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