Thursday 30 January 2020

Climate change is now a pressing issue for most councils. According to the LGA, around 230 councils have declared a climate emergency. Councils are taking steps to reduce carbon emissions and are working to tackle the impact of climate change.

As a result of climate change, the weather in the UK and across the world is becoming more unpredictable and extreme. The recent Australian bushfires serve as a stark reminder of the possible impact of climate change. In the UK, we have experienced an increase in spring and summer wildfires as well as autumn and winter flooding.

The highway network is still recovering from the effects of the Beast from the East, which caused havoc across the country in early 2018. Of course, it is not just snow and cold weather that councils need to worry about; flooding, heavy rainfall, wind and excessive temperatures can cause just as much damage to the infrastructure and fabric of the highway.

Councils need to be prepared for the challenges that climate change might bring and work towards creating a resilient highway network. For example, this may include identifying sections of the highway that are most at risk, implementing long-term planning for road improvements, and exploring new highway designs and materials to future proof the network. However, councils have their work cut out with the Asphalt Alliance reporting that it would cost £9.7 billion to carry out a one-time repair of the network.

Councils have a duty to maintain the highway pursuant to s.41 Highways Act 1980. With budgets getting tighter, many are struggling under the strain of increased pothole repairs. The knock-on effect of the rising number of potholes is an increase in claims for personal injury and property damage. 

Should a claim arise as a result of extreme winter weather, a highway authority will be in a better position to defend the claim if they can point to a well thought out and reasoned winter highway maintenance plan. Akin to the risk-based approach recently adopted for the new Highways Code of Practice, councils need to give careful thought to the implementation of their gritting policy. Only by doing so, will courts be willing to accept they have acted in a reasonable and practicable way in compliance with the duty under s.41 (A) Highways Act.

To be in the best position to defend future claims:

  1. Complete risk assessments and consider the impact of extreme weather in the past.
  2. Ensure you have a proactive winter management plan, which is reviewed on a regular basis and deals with extreme weather.
  3. Ensure officers receive accurate weather forecasts so that resources can be directed appropriately.
  4. Consider how highways are prioritised for gritting and ensure the decision-making process is documented and reasons/justifications are recorded.
  5. Investigate all accidents, and record and retain details including periods when the weather was extreme.
  6. Ensure you have adequate resources for the winter season, for example sufficient salt supplies, personnel and equipment.
  7. Implement a system of reactive and targeted maintenance during and following extreme weather.

In the future, extreme weather events are likely to occur in greater frequency, so councils need to adapt and plan for the challenges posed by climate change. Ensure your organisation is in the best possible position to maintain an effective highway system and to defend claims. 

Sarah Wilkinson, Associate Solictor, Forbes Solicitors (sarah.wilkinson@forbessolicitors.co.uk)

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