A recent Court of Appeal judgment in the case of the Department for Transport, Environment and the Regions v Mott MacDonald Ltd, Amey Mouchel Ltd and Cornwall County Council [2006 27th July], has confirmed that the statutory duty imposed on highway authorities to maintain highways that are maintainable at the public expense, does extend to repairing and maintaining drains beneath the surface of the road.
It was further held the duty to repair is not limited to fixing defective drains but extends to clearing blockages. This might mean clearing blocked drains but it may also mean dealing with the consequences of inadequate drainage.
This is quite an important decision for local authorities and their contractors, making it clear that the law has not changed since the landmark ruling case of Burnside v Emerson in 1968, despite the fact that the judge at first instance (HH Judge Richard Seymour Q.C.) had been (wrongly) persuaded that case had been overruled in Goodes v East Sussex County Council by the House of Lords in 2000.
Background to statutory powers of highway authority
- Section 41(1) of the Highways Act 1980 (HA 1980) provides that a highway authority is under a duty to maintain those highways in the area for which it is responsible, which are highways "maintainable at the public's expense (public highways).
- Section 329 of the HA 1980 defines "maintenance" as including repair.
In Burnside v Emerson , it was held that the statutory duty on highways authorities to repair highways (under the legislation preceding and replaced by the HA 1980) included a duty to repair drains.
Although Burnside has been applied by the Court of Appeal relatively recently (Thoburn v Northumberland County Council, 19 January 1999, unreported), there have been a number of subsequent cases which have suggested that the Burnside ruling has been overruled:
- Hereford and Worcester County Council v Newman  1 WLR, which concerned a hedge and barbed wire fence crossing rural footpaths.
- Haydon v Kent County Council , which concerned snow and ice on an urban footpath.
- Goodes v East Sussex County Council ,which concerned snow and ice on a road.
- Gorringe v Calderdale MBC , which concerned a failure to provide an advance sign of a sharp crest in a road.
- Thompson v Hampshire County Council , which concerned an accident caused by tripping in a ditch hidden by grass.
The judge at first instance in this case held that the ruling in Burnside had effectively been overruled by the House of Lords in Goodes v East Sussex County Council so that:
- The duty to repair a highway was limited to keeping the surface of roadways in repair.
- There was no duty to deal with obstructions that made a highway "less commodious" but did not actually damage the highway surface.
Facts of the Case
This was an appeal by the Department for Transport Local Government and the Regions (DTLR).
The appeal was in three consolidated cases that arose from similar accidents. In each of the cases, the accident was allegedly caused by standing water on the highway. The water was attributed to the blocked drains (by silt, debris and vegetation) serving the highway. It was claimed that the failure on the part of Cornwall County Council (as highway authority) to unblock the drains was a breach of its duty under section 41(1) of the HA 1980.
The council settled each of the claims with the original claimants but sought to recover the payments from its managing agents. The managing agents argued that there was no breach of duty under section 41(1) of the HA 1980 following the House of Lords' decision in Goodes v East Sussex County Council.
The court at first instance held that Burnside had effectively been overruled by Goodes and that, as the council was not liable in the claims made against it, the claims by the council against the managing agents would be dismissed.
The council appealed.
The Court of Appeal allowed the appeal, holding that the judge at first instance had been wrong. This meant that the contractors responsible for carrying out the highway maintenance on behalf of the council were liable to the council for the amount claimed (in the region of £1.6 million).
The Court of Appeal:
- Analysed each of the cases put forward as together overruling Burnside and found that they did not throw doubt on the decision in that case. The cases did not support the proposition that the duty to maintain was confined to the road surface and the decision in Burnside was still good law.
- Ruled that a highway authority's statutory duty is to maintain the highway and this duty extends not only to the surface of the highway, meaning that part of the surface of the highway used by traffic or pedestrians, but also to drains beneath or beyond the surface or central reservation.
- Ruled that the duty to maintain drains extends not only to the repair of physical defects in the fabric of the drains, but also to the clearance of blockages in drains that are otherwise in good physical repair.
The court further observed that, had Parliament wished to respond to the ruling in Burnside, it could have done so when it enacted the HA 1980, but it did not do so.
This decision is a significant one for highways authorities and contractors responsible to highways authorities for road maintenance.
The decision confirms what has for a long time been regarded as settled law and which only recently has come under scrutiny. It is now clear that if an accident occurs on a highway as a result of a lack of repair to the road surface or an obstruction on the surface caused, for example, by a failure to deal with blocked, faulty or inadequate drains, the highway authority will be liable.
I leave this one final thought with you; although not clear in this case, if there was a section 104 Water Industry Act Agreement in place would this have made a difference on who is liable for blocked drains that may later result in a highway accident?
Responsibility to maintain drains, sewers…etc, will fall to be the responsibility of the statutory utility providers (eg Severn Trent, Anglian Water, Thames Water…etc). Highway authorities should make sure when adopting through section 38 of the HA 1980 the section 104 agreement is in place, it may just make a difference on liability in similar circumstances.