IPWEA NSW Division Annual Conference 2005
ROAD MANAGEMENT PLANS – A POLICY DEFENCE
George J. Giummarra, Principal Consulting Engineer
ARRB Consulting Group, www.arrb.com.au Victoria, Australia
Paper Summary
The Victorian government has recently introduced legislation to establish clearer principles for road management. Road Management Plans form the cornerstone of the policy defence which can provide legal cover for road authorities from potential litigation claims.
While a Road Management Plan is not an asset management plan it does provide a good way to address risk. The legislation provides an onus on both the road user and the responsible road authority to demonstrate a duty of care and to act reasonably.
The purpose of the paper is to cover the background to the legislation, the various elements that are included in a Road Management Plan and the extent to which these new practices can be best applied in New South Wales.
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IPWEA NSW Division Annual Conference 2005
Introduction
The Victorian Government, in response to the Brodie v Singleton Shire (2001) High Court decision, has introduced legislation to establish clearer principles and improved methods for road management for road authorities in Victoria. Through the establishment of a Road Management Plan the road manager has established accountabilities and the traveling public has clear expectations as to what is a ‘reasonable standard’ in a civil liability situation.
Road Management Plans can form the cornerstone of a policy defence for road authorities. They can provide a much better basis for road authorities to deal with potential litigation issues from what would otherwise be impossible litigations. The resulting outcomes are a safer road network, improved asset management systems and risk management safe-guards.
The purpose of the paper is to outline the introduction of Road Management Plans in Victoria, what they contain, and how such an approach may prove beneficial in other States.
Background
The decision by the Full Bench of the High Court overturned a longstanding law protecting road authorities from litigation. Traditionally, the common law was that a road authority had a duty of care to design and construct roads safely but was not liable for merely failing to maintain a road. This was known as the ‘non-feasance rule’. Misfeasance was when a road authority undertook work in a negligent manner.
The defence of non-feasance gave road authorities protection in cases where they had done nothing. This had the tendency to encourage inaction and at worst a deliberate move to avoid discovery of defects and undertaking remedial works. Changes to the law mean that road authorities now owe a duty of care to road users by actively exercising their maintenance powers to protect them from foreseeable risks of harm.
The High Court decision meant that road authorities were no longer immune from liability to maintain or repair roads. They had to demonstrate a duty of care in their operations and to act reasonably. This decision at the time was seen as having enormous economic ramifications for authorities from all tiers of government particularly local councils.
The States reacted to the High Court decision in different ways. In the case of New South Wales, South Australia and Queensland they passed legislation to reintroduce the non-feasance rules, in essence negating the High Court decision.
In October 2003 nonfeasance protection for road authorities in Western Australia was restored through legislation passed by Parliament with a conditional protection for road authorities rather than the blanket immunity that previously existed. The protection provides that a road authority is not liable for harm arising from a failure to carry out or to consider carrying out road work, unless at the time of the failure it had actual knowledge of the particular risk that caused harm.
The provision in the Act goes on to clarify that a duty of care does not necessarily apply in respect of a risk merely because a road authority has actual knowledge of the risk, or that specifics actions should be taken in particular circumstances or done in a particular way.
While the restoration of nonfeasance in has been welcomed, it is acknowledged that there is a need for this to be augmented by a more proactive approach to the development of relevant standards for Councils.
In Victoria the State Government has passed legislation, referred to as the Road Management Act, which provides for a significantly new statutory framework for the management of roads throughout Victoria. The Act has given road authorities clear guidance on what is required to be more accountable and how to exercise their powers in a more proactive manner to ensure their road networks are ‘reasonably’ safe.
The Road Management Act was passed on 11 May 2004 and came into full effect from 1 January 2005. It is understood that all road authorities in Victoria have prepared their respective Road Management Plans with other States watching to see if maybe one day they may emulate the Victorian model.
Road Management Act
The purpose of the Road Management Act 2004 is to establish a coordinated management system for public roads that will promote safe and efficient State and local public road networks and the responsible use of road reserves for other legitimate purposes, such as the provision of utility services.
The Road Management Act is based on the following key principles:
· clear allocation of road asset ownership and management
· established processes and accountabilities for policy decisions and performance standards
· provision of operational powers to achieve targets and performance standards
· clarification of civil liability laws for the management of roads.
Road Management Plans
The Act provides that ‘a road authority may develop and publish a road management plan ...’ It is not compulsory for a road authority to prepare a Road Management Plan (RMP) but without one there maybe little policy defence support against litigation.
Guiding the preparation of a RMP is a Ministerial Code of Practice whose objective is to provide practical guidance for road authorities in the performance of their road management functions relating to inspection, maintenance and repair of public roads.
The contents of a road management plan should include:
· a description of those assets on public roads for which a road authority is responsible
· the standard, or target condition, of those assets to be maintained by a road authority
· a management system as established and implemented by a road authority to discharge its duty to inspect, maintain and repair public roads for which it is responsible.
Asset Description
This involves the preparation of a register of roads and ancillary areas for which a road authority is responsible. In establishing a record of assets, what is to be included covers the road, roadside, structures, and road-related infrastructure such as traffic signals and on-road electrical assets. The register of public roads is to be made available for inspection by the public.
Asset Standards
In keeping with the prime requirement for a road authority to show a duty of care and to act reasonably road management standards should be included. This can involve the nature and frequency of road inspections, the tolerable level of defects, and the response time to repair defects.
In determining appropriate standards for the management of road assets, a road authority should consider:
· the type of road asset, and the volume and nature of road usage
· the scope and cost of maintenance and inspection required to achieve the standards
· community expectations
· any relevant risk factors
· the resources available, and the competing demands for these resources
· temporary measures and warning systems to warn road users of hazards until they can be repaired to the applicable standards.
An Asset Management System to Inspect, Maintain and Repair
A road asset management system is about the management of both the physical and aspects of the use and operation of those assets that affect the condition of the asset. It applies to all assets, including the road, structures, roadsides and road infrastructure (i.e. signs, road furniture, lighting etc).
In accordance with the Act, the contents of a road management plan ‘may include details of the management system that a road authority proposes to implement in the discharge of its duty to inspect, maintain and repair public roads for which the road authority is the coordinating road authority or the responsible road authority.’
An asset management system that best meets a road authority’s needs to discharge its duty to inspect, maintain and repair public roads should include, as a minimum, policies and procedures for setting standards, monitoring road condition, establishing priorities and allocating resources, delivering and auditing maintenance programs, recording asset performance, and responding to incidents.
In developing and implementing a management system, the road authority should consider:
· relevant national, State and local government transport and other policies
· relevant standards and guidelines
· community needs and expectations regarding road standards
· resources available to the road authority
· competing priorities.
Road User Obligations
The Act also sets out to clarify the common law rights of access to the public road system. The legislation sets out certain obligations of road users. These include:
• reporting requirements if a claim is to be lodged
• travel according to the prevailing conditions
• have regard to the rights of other road users and take reasonable care.
In addition there are limits imposed on property damage claims to bar small claims. A $1000 excess applies to property damage. Without this there would be an increase in small claims and road authorities would be forced to defend actions. This would increase community costs to unacceptable levels.
Management of the Road Asset
The Act provides for an effective framework for road management. It requires that road authorities put in place a robust system of asset management linked to available resources to set the performance standards.
The community was provided with an opportunity to comment on the RMP to verify that it matches community expectations. The process of development of the RMP empowers the community through the road authority to set the ‘reasonable’ standard. These standards will then apply in any subsequent litigation to provide greater certainty for all concerned. The process also ensures that road authorities are managing the road network in a proactive manner to affordable standards and delivering a safer road network for users.
Establishing the Responsible Road Authority
A basic element of asset management is who is responsible for which asset. The road classification system in Victoria has been confusing, particularly in the case of declared Main Roads. This Act makes VicRoads responsible for all freeways and arterial roads, municipalities responsible for municipal roads and relevant State agencies responsible for non-arterial State roads. On arterial roads within urban areas, Councils are responsible for the area between the back of kerbs and the property boundary, (i.e. the footpath, outer separators and service roads.), and VicRoads generally is responsible for the balance. This clarity of which authority is responsible improves the previously blurred responsibility.
Others Who Work in Road Reserves
The courts have clarified that the community expects road authorities to manage road reserves. There are situations where the road authority does not have the power to effect proper management. Many different bodies install infrastructure in road reserves and occasionally there are conflicts. The Acts under which these bodies operate often override the powers of road authorities and confound responsible management.
The Act puts in place a consent regime where all those working in road reserves need the consent of the co-coordinating road authority prior to undertaking works. Emergencies are exempt. Regulations are to be put in place to ensure that consent is granted for classes of work to ensure the outcome is to the benefit of the community. A key aspect is to ensure that the road safety of the traveling public is enhanced.
Discussion
The High Court judgement in essence requires that a road authority in the exercise of its duties must be able to demonstrate a duty of care and to ‘act reasonably’. The Act, subsequent Codes of Practice, and RMP are centred on these two fundamental requirements.
Duty of Care – requires a road authority to act in a proactive manner by having in place road management systems that require regular road inspection, maintenance programs and response times to ensure the safety of road users. While in the past this was no doubt the intention of road authorities, the Act now stipulates that a road authority through its RMP, documents its procedures and maintains records of maintenance activities undertaken so as to demonstrate in a court that it has complied with its duty of care obligations. In so doing it forms the basis of a policy defence should a case of litigation arise. Failure of a road authority to comply with its RMP could be seen as a failure to demonstrate a duty of care.
It should be noted that a RMP forms a part of an overall road asset management system. The RMP primarily deals with those maintenance and operational activities that relate to a safety risk to road users whereas an asset management system is all encompassing dealing with not only the safety aspects but the preservation of the road asset. An example is road cracking where there is no risk to a road user but its repair is essential for maintaining the longevity of the pavement.
Act Reasonably – requires the setting of service levels or maintenance intervention levels to assure the courts that suitable standards have been applied. Who is to set what are ‘reasonable’ standards and how much road maintenance is enough for the purpose of determining whether there should be any civil liability?
Many Councils in preparing their RMP are setting service standards that are not only conservative, so that they can be achieved, but significantly more so to gain complete cover from the remotest possibility of negligence (Prabhu). This is driven by the fear that a council must meet the service level stated in their RMP otherwise it may be seen as being liable.
In setting low standards, will the courts consider these to be ‘reasonable’ if they fall below broader industry standards. Such an approach will also be defeating a primary objective of asset preservation if the maintenance of road defects are set to too low a standard and may lead to higher repair costs at a future date.