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  1. 1. IPWEA NSW Division Annual Conference 2005 ROAD MANAGEMENT PLANS – A POLICY DEFENCE George J. Giummarra, Principal Consulting Engineer ARRB Consulting Group, 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. Introduction Background The Victorian Government, in response to The decision by the Full Bench of the High the Brodie v Singleton Shire (2001) High Court overturned a longstanding law Court decision, has introduced legislation to protecting road authorities from litigation. establish clearer principles and improved Traditionally, the common law was that a methods for road management for road road authority had a duty of care to design authorities in Victoria. Through the and construct roads safely but was not liable establishment of a Road Management Plan for merely failing to maintain a road. This the road manager has established was known as the ‘non-feasance rule’. accountabilities and the traveling public has Misfeasance was when a road authority clear expectations as to what is a undertook work in a negligent manner. ‘reasonable standard’ in a civil liability situation. The defence of non-feasance gave road authorities protection in cases where they Road Management Plans can form the had done nothing. This had the tendency to cornerstone of a policy defence for road encourage inaction and at worst a deliberate authorities. They can provide a much better move to avoid discovery of defects and basis for road authorities to deal with undertaking remedial works. Changes to the potential litigation issues from what would law mean that road authorities now owe a otherwise be impossible litigations. The duty of care to road users by actively resulting outcomes are a safer road network, exercising their maintenance powers to improved asset management systems and protect them from foreseeable risks of harm. risk management safe-guards. The High Court decision meant that road The purpose of the paper is to outline the authorities were no longer immune from introduction of Road Management Plans in liability to maintain or repair roads. They had Victoria, what they contain, and how such an to demonstrate a duty of care in their approach may prove beneficial in other operations and to act reasonably. This States. decision at the time was seen as having Page 1
  2. 2. IPWEA NSW Division Annual Conference 2005 enormous economic ramifications for other States watching to see if maybe one authorities from all tiers of government day they may emulate the Victorian model. particularly local councils. Road Management Act The States reacted to the High Court decision in different ways. In the case of The purpose of the Road Management Act New South Wales, South Australia and 2004 is to establish a coordinated Queensland they passed legislation to management system for public roads that will reintroduce the non-feasance rules, in promote safe and efficient State and local essence negating the High Court decision. public road networks and the responsible use of road reserves for other legitimate In October 2003 nonfeasance protection for purposes, such as the provision of utility road authorities in Western Australia was services. restored through legislation passed by Parliament with a conditional protection for The Road Management Act is based on the road authorities rather than the blanket following key principles: immunity that previously existed. The protection provides that a road authority is • clear allocation of road asset not liable for harm arising from a failure to ownership and management carry out or to consider carrying out road work, unless at the time of the failure it had • established processes and actual knowledge of the particular risk that accountabilities for policy decisions caused harm. and performance standards The provision in the Act goes on to clarify • provision of operational powers to that a duty of care does not necessarily achieve targets and performance apply in respect of a risk merely because a standards road authority has actual knowledge of the risk, or that specifics actions should be taken • clarification of civil liability laws for the in particular circumstances or done in a management of roads. particular way. Road Management Plans While the restoration of nonfeasance in has The Act provides that ‘a road authority may been welcomed, it is acknowledged that develop and publish a road management there is a need for this to be augmented by a plan ...’ It is not compulsory for a road more proactive approach to the development authority to prepare a Road Management of relevant standards for Councils. Plan (RMP) but without one there maybe little policy defence support against litigation. In Victoria the State Government has passed legislation, referred to as the Road Guiding the preparation of a RMP is a Management Act, which provides for a Ministerial Code of Practice whose objective significantly new statutory framework for the is to provide practical guidance for road management of roads throughout Victoria. authorities in the performance of their road The Act has given road authorities clear management functions relating to inspection, guidance on what is required to be more maintenance and repair of public roads. accountable and how to exercise their powers in a more proactive manner to The contents of a road management plan ensure their road networks are ‘reasonably’ should include: safe. • a description of those assets on public The Road Management Act was passed on roads for which a road authority is 11 May 2004 and came into full effect from 1 responsible January 2005. It is understood that all road authorities in Victoria have prepared their • the standard, or target condition, of those respective Road Management Plans with assets to be maintained by a road authority Page 2
  3. 3. IPWEA NSW Division Annual Conference 2005 • a management system as established An Asset Management System to and implemented by a road authority to Inspect, Maintain and Repair discharge its duty to inspect, maintain and repair public roads for which it is A road asset management system is about responsible. the management of both the physical and aspects of the use and operation of those assets that affect the condition of the asset. Asset Description It applies to all assets, including the road, This involves the preparation of a register of structures, roadsides and road infrastructure roads and ancillary areas for which a road (i.e. signs, road furniture, lighting etc). authority is responsible. In establishing a record of assets, what is to be included In accordance with the Act, the contents of a covers the road, roadside, structures, and road management plan ‘may include details of road-related infrastructure such as traffic the management system that a road authority proposes to implement in the discharge of its signals and on-road electrical assets. The duty to inspect, maintain and repair public register of public roads is to be made roads for which the road authority is the available for inspection by the public. coordinating road authority or the responsible road authority.’ Asset Standards An asset management system that best In keeping with the prime requirement for a meets a road authority’s needs to discharge road authority to show a duty of care and to its duty to inspect, maintain and repair public act reasonably road management roads should include, as a minimum, policies standards should be included. This can and procedures for setting standards, involve the nature and frequency of road monitoring road condition, establishing inspections, the tolerable level of defects, priorities and allocating resources, delivering and the response time to repair defects. and auditing maintenance programs, recording asset performance, and In determining appropriate standards for the responding to incidents. management of road assets, a road authority should consider: In developing and implementing a management system, the road authority • the type of road asset, and the should consider: volume and nature of road usage • relevant national, State and local • the scope and cost of maintenance government transport and other and inspection required to achieve policies the standards • relevant standards and guidelines • community expectations • community needs and expectations • any relevant risk factors regarding road standards • the resources available, and the • resources available to the road competing demands for these authority resources • competing priorities. • temporary measures and warning systems to warn road users of Road User Obligations hazards until they can be repaired to the applicable standards. 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: Page 3
  4. 4. IPWEA NSW Division Annual Conference 2005 • reporting requirements if a claim is responsible for the balance. This clarity of to be lodged which authority is responsible improves the previously blurred responsibility. • travel according to the prevailing conditions Others Who Work in Road Reserves • have regard to the rights of other The courts have clarified that the community road users and take reasonable care. expects road authorities to manage road reserves. There are situations where the In addition there are limits imposed on road authority does not have the power to property damage claims to bar small claims. effect proper management. Many different A $1000 excess applies to property damage. bodies install infrastructure in road reserves Without this there would be an increase in and occasionally there are conflicts. The small claims and road authorities would be Acts under which these bodies operate often forced to defend actions. This would override the powers of road authorities and increase community costs to unacceptable confound responsible management. levels. The Act puts in place a consent regime Management of the Road Asset where all those working in road reserves need the consent of the co-coordinating road The Act provides for an effective framework authority prior to undertaking works. for road management. It requires that road Emergencies are exempt. Regulations are to authorities put in place a robust system of be put in place to ensure that consent is asset management linked to available granted for classes of work to ensure the resources to set the performance standards. outcome is to the benefit of the community. A key aspect is to ensure that the road The community was provided with an safety of the traveling public is enhanced. opportunity to comment on the RMP to verify that it matches community expectations. The Discussion process of development of the RMP empowers the community through the road The High Court judgement in essence authority to set the ‘reasonable’ standard. requires that a road authority in the exercise These standards will then apply in any of its duties must be able to demonstrate a subsequent litigation to provide greater duty of care and to ‘act reasonably’. The certainty for all concerned. The process also Act, subsequent Codes of Practice, and ensures that road authorities are managing RMP are centred on these two fundamental the road network in a proactive manner to requirements. affordable standards and delivering a safer road network for users. Duty of Care – requires a road authority to act in a proactive manner by having in place Establishing the Responsible Road road management systems that require Authority regular road inspection, maintenance programs and response times to ensure the A basic element of asset management is safety of road users. While in the past this who is responsible for which asset. The road was no doubt the intention of road classification system in Victoria has been authorities, the Act now stipulates that a road confusing, particularly in the case of authority through its RMP, documents its declared Main Roads. This Act makes procedures and maintains records of VicRoads responsible for all freeways and maintenance activities undertaken so as to arterial roads, municipalities responsible for demonstrate in a court that it has complied municipal roads and relevant State agencies with its duty of care obligations. In so doing responsible for non-arterial State roads. On it forms the basis of a policy defence should arterial roads within urban areas, Councils a case of litigation arise. Failure of a road are responsible for the area between the authority to comply with its RMP could be back of kerbs and the property boundary, seen as a failure to demonstrate a duty of (i.e. the footpath, outer separators and care. service roads.), and VicRoads generally is Page 4
  5. 5. IPWEA NSW Division Annual Conference 2005 It should be noted that a RMP forms a part of standards set will then apply in any an overall road asset management system. subsequent litigation to provide greater The RMP primarily deals with those certainty for all concerned. The process also maintenance and operational activities that ensures that road authorities are managing relate to a safety risk to road users whereas the road network in a proactive manner, to an asset management system is all affordable standards and delivering a safer encompassing dealing with not only the road network for uses. safety aspects but the preservation of the road asset. An example is road cracking • resources available for road where there is no risk to a road user but its maintenance repair is essential for maintaining the longevity of the pavement. • adopting differing service levels based on the road hierarchy Act Reasonably – requires the setting of service levels or maintenance intervention • developing a system of prioritisation levels to assure the courts that suitable that provides transparency standards have been applied. Who is to set what are ‘reasonable’ standards and how • community consultation in setting much road maintenance is enough for the reasonable standards purpose of determining whether there should be any civil liability? Conclusion Many Councils in preparing their RMP are setting service standards that are not only The Road Management Act in Victoria has conservative, so that they can be achieved, upheld the intent of the High Court decision but significantly more so to gain complete and will contribute towards improved road cover from the remotest possibility of safety. This is being achieved by negligence (Prabhu). This is driven by the establishing amongst the various road fear that a council must meet the service authorities improved road management level stated in their RMP otherwise it may be systems that will ensure road assets are seen as being liable. better maintained with the resources available, clarify the responsibility of road In setting low standards, will the courts users and provide an improved policy consider these to be ‘reasonable’ if they fall defence mechanism when dealing with below broader industry standards. Such an potential litigation. approach will also be defeating a primary objective of asset preservation if the The preparation of a RMP has enabled a maintenance of road defects are set to too road authority to establish and document an low a standard and may lead to higher repair improved system for the management of its costs at a future date. public road functions that take into account road user needs and expectations within an Many road authorities have over the years economic framework based on meeting established maintenance programs which ‘reasonable’ maintenance service levels and fitted their budgets and maintained asset preservation requirements. reasonable level of acceptance amongst their road users. Under a RMP these A RMP provides a clear statement to the procedures and levels of service need to be community on how a road authority is to documented so that should a failure occur manage its road assets and provides resulting in the potential of litigation and the engineering staff with clear directions in the maintenance works were carried out within fulfilment of their duties. This latter point on the stipulated service levels the Act provides its own has proven a most worthwhile for a policy defence rather than having to exercise in having a documented set of justify standards adopted. procedures, response times and service standards etc on the better management of In setting service levels consideration should its road assets. be given to the factors listed below. The Page 5
  6. 6. IPWEA NSW Division Annual Conference 2005 While the Road Management Act applies City of Cockburn Development of a Road only to road authorities in Victoria, its Management Plan Stage 1 Dec 04 (not principles, objectives and procedures can be published) readily applied in other States providing a sound basis for the better management of City of Knox Road Management Plan (Draft) road assets and a likely policy defence for 2004 potential litigation. Code of Practice for Road Management Plans (Draft) 2004 References Prabhu A., Pilot testing of road management Cardinia Shire Road Management Plan plans. Public Works Engineering Journal (Draft) 2004 Dec 04 Victorian Road Management Act 2004 Page 6
  7. 7. IPWEA NSW Division Annual Conference 2005 Author Biography George’s work experience has extended across a wide range of engineering activities including transport planning, road design, construction, research and traffic engineering. Much of George’s work, before beginning at ARRB, was associated with VicRoads and its predecessors, and a secondment to a Local Government planning authority. At ARRB, George has been responsible for the establishment of research programs and technology transfer activities for Local Government and other agencies associated with local roads across Australia and overseas. George has been successful in providing a number of projects aimed directly at meeting the needs of local roads. This has included the preparation of Manuals relating to Unsealed Roads, Sealed Local Roads and Local Roads Bridge Management. Dip CE., FRMIT, MEngSc., CE, Grad Postal Address: George Giummarra, 500 Burwood DipBus, MITE, Highway Vermont South, Vic 3133 FIPWEA, FIEAust Tel: 03 9881 1563 Fax: 03 9887 8104 Mobile: 0418 541 137 E-mail: Website: Page 7