Patrick Taylor

Pothole Britain

As we know, a pothole is not hole as such but a pot-shaped hollow in a road or footpath. The United Kingdom has a very large number, at least in the millions. They tend to start small then gradually become bigger. When a pothole in a public highway reaches a certain size, especially its depth compared with the surrounding surface, it is officially regarded as a defect in need of repair (for public safety amongst other reasons). But it will not necessarily be repaired.

Potholes are not a trifling matter. In March 2023 the Prime Minister said "it's time to put an end to pothole pain." Most people in Britain already know this, and they also know that just because the Prime Minister says something will happen, it doesn't mean it will.

A pothole must be at least 40mm deep.

The system is that the Prime Minister does not fix potholes himself – the Highway Authority does. In the town where I live, the Highway Authority is Bolton Council. It has a 'Highway Asset Management Policy & Strategy' published here. It says that highway infrastructure is the most valuable asset owned by the public sector in the UK – more valuable even than all the hospitals or all the schools or the two aircraft carriers. It doesn't mean roads are necessarily more important than NHS waiting lists; it is more a case that decent roads are good for the economy which, in turn, helps to provide money for the NHS. The approach is about the most efficient use of public resources in overall terms.

Bolton Council may be the local Highway Authority but only a limited proportion of the Council Tax it collects is spent on roads. Most funding for highways comes from the government via the Greater Manchester Combined Authority (GMCA, of which Bolton is a part). So the Council itself doesn't receive direct Government funding, GMCA does, and that's Andy Burnham, not the Prime Minister. When the Prime Minister says "it's time to put an end to pothole pain" he means it's time for Andy Burnham to do it, and here's some more money (a share of £200 million for the entire country, bringing the national total to £5.5 billion for highway maintenance by 2025).

GMCA capital funding is for all highway assets, not just roads, so that includes bridges, street lighting, highway drainage and signage in the broader sense. The bulk is spent on the roads as the largest asset. The allocation is determined by how much asset the local Highway Authority (Bolton) manages. Bolton Council is expected to determine the priority needs by systematic asset management to include economic as well as condition factors.

The 'asset management' system seems to make sense but it cuts out an element of local democracy. The government, of course, does not like local democracy. Budget-wise, Bolton Council seems powerless where local roads are concerned. Maintenance priorities are determined not by local political considerations (our votes) but by condition (surveyed independently) and graded in simple terms: Red, Amber, Green (Green = no maintenance required, Red = beyond simple 'maintenance'). It is most economical overall to address Amber status roads with minimal requirements to get them to Green or low Amber.

Bolton Council's 'Highway Asset Management Policy & Strategy' falls apart when it says a key theme of asset management is customer focus.

"An effective Asset Management system must focus on the service an asset provides compared with customer expectations, rather than a solely objective technical assessment. The technical condition of an asset can be measured in a structured manner to produce an objective score, but this may not reflect the opinion of the public about an asset, or how they use or avoid using an asset. Part of the process of creating an Asset Management Plan includes consulting customers on their priorities and requirements, which in turn leads to setting levels of service for assets."

(I have no idea what this means but it does not seem like an asset management system.)

By-passing the system

One way is to somehow inform the Council of "the opinion of the public about an asset." Residents in a particular area could get together and prove that not resurfacing a particularly potholed section of a particular road is poor asset management in the context of the entire Borough – not easy. A better way might be to remind the Council about its legal obligations under the Highways Act 1980. The Law comes above politics.

Clearly, potholes are the result of inadequate maintenance. If a road is inspected every day and immediately repaired where required, there would be no potholes, but that is not realistic because the cost would far outweigh the overall economic cost of the sub-standard asset.

A Highway Authority can be sued for damages for the non-repair of a public highway. Section 58 of the Highways Act however provides a 'special defence' and rightly so for the reason above. The Acts says that a court shall in particular have regard to the following matters:

(a) the character of the highway, and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the highway;

(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;

(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose and what warning notices of its condition had been displayed.

If a defect, such as a pothole, is reported to the Highway Authority, it will not want to be sued, so if the person reporting it means business, those five conditions will need to be shown as not applicable.

The Greater Manchester Highway Safety Inspection Framework:

"Highway Authorities need to prove that they have taken such care as in all the circumstances was reasonably required to secure that the part of the highway was not dangerous for traffic. This is usually proved by the Council having a reasonable system of routine scheduled highway safety inspections in place, having regard to various factors set out within section 58 of the Highways Act 1980."

Bolton Council's highway asset management policy provides such a system. It varies for classified and non-classified (mostly residential) roads. Not surprisingly most attention is given to the classified road network. Not surprisingly either, unclassified roads tend to be where the potholes are; they are by far the largest proportion of the network but receive only a visual inspection, and only once per year. In addition, to deserve maintenance, they need to be a much worse condition than classified roads.

In short, the Highway Authority has plenty of defences against being sued for damages for the non-repair of a residential road. It means when you drive now, you are not looking at the road ahead; you are looking for potholes.

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Page last modified: 27 June, 2023