Option: Implementing cycle infrastructure and improving roads for cycling
Local Authorities have a range of powers to implement cycling infrastructure and modify the highway, footway and footpaths for cyclists’ use.
There is no statutory requirement to implement infrastructure like cycle lanes but the authority may chose to do so in line with a hierarchy of considerations as set out below.
Most local highway measures are implemented through Traffic Regulation Orders (see here for more information) where local authorities are under a duty to exercise their powers to secure the ’expeditious, convenient and safe movement’ of all traffic[1]. Traffic includes cyclists as well as pedestrians, so changes to highways and paths should prioritise safety.
The law
Potential cycling measures- Hierarchy of provision
The local approach to cycling should follow the hierarchy set out by the Department for Transport, called a ‘hierarchy of provision’, it sets out a range of options from softer traffic reduction measures to off-road cycle paths:
Hierarchy of provision:
↓ Traffic volume reduction
↓ Traffic speed reduction
↓ Junction treatment, hazard site treatment, traffic management
↓ Reallocation of carriageway space
↓ Cycle tracks away from roads
↓ Conversion of footways/footpaths to shared use for pedestrians and cyclists
Local Transport Note 2/08 DFT Cycling Infrastructure Design[2]
This is not a rigid hierarchy but should be the starting point for design decisions. Manual for Streets (DfT/CLG, 2007[3]) also adopts a hierarchy of ‘users’ that considers pedestrians, cyclists and other vulnerable first in highway schemes (but does not necessarily prioritise them above other users).
The measures outlined in the hierarchy are governed by a complex range of design and implementation criteria. There are many separate powers to implement new infrastructure or restrict traffic, some traffic restriction measures are outlined in the section on parking restrictions around schools.
Excellent detailed legal guidance on cycle infrastructure was developed by Cycling England, and is available here;
Cycle Schemes and Legal Procedures. 2009. Cycling England.
Infrastructure Toolkit for Cycling Towns. 2009. Cycling England.
Design Checklist and Guidance. 2011. Cycling England.
Implementation
It is important that the measures put in place to encourage cycling are appropriate to the road and in accordance with best practice. Recent research highlights the danger of inadequate cycle lanes that may actually encourage drivers to pass closer to cyclists than they would in absence of any lane[4]. This emphasises the hierarchy approach that it may be preferable to address traffic level and speed where roads are unsuitable for proper cycling infrastructure.
The design standards set out by Cycling England are not mandatory; however, there are legal responsibilities and liability for design and maintenance that encourage good practice:
Duty to maintain the highway- S.41 the Highways Act 1980
Case law has shown that this is a relatively narrow duty that covers the fabric of a highway but not signs and markings. The standard of maintenance will depend on the nature and use of that highway but a highways authority should have sufficient systems for inspection and reporting of defects. If an authority could reasonably have been expected to know that a part of the road was dangerous to its normal traffic, the authority may be liable for any harm due to that defect which could have been reasonably expected to be repaired.
Duty on local authorities on road safety- S.39 Road Traffic Act 1988
This is a broad duty to
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Carry out studies into accidents in their area, and;
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In light of those studies take appropriate measures to prevent accidents, and;
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In constructing new roads, take appropriate measures to reduce the possibilities of accidents
This is a wide duty that is enforceable in judicial review and an authority must show that it has acted reasonably and rationally in response to accidents and when designing new roads. However, it is not likely that an individual can use this duty to establish a claim against a highway authority[5].
No duty to warn of obvious dangers
Notwithstanding the duty under the Road Traffic Act above, a highway authority is not the occupier of a highway and has no common duty of care. Historically, users of the highway are responsible for their own safety and should take the highway as they find it- this has tended to limit the authority’s responsibility to erect signs or markings unless they have caused a danger.
A statutory power does not give rise to a duty to act
An authority will not be liable for a failure to exercise a statutory power unless it was irrational not to act, in effect developing a public law duty, and there are exceptional policy grounds for compensation of people who suffer loss[6]. This test will rarely be met where there is a system of compulsory insurance to compensate victims.
Responsibility for entrapment of users into danger
There is a possibility that a highway authority may be under a duty not to re-design or alter, or fail to repair a highway where it has created a reasonable expectation about the safe state of that highway.[7]
This may have practical implications for the removal of infrastructure like speed humps, guardrails or cycle lanes if road users are trapped into danger through an expectation that the road is as safe as it was. This may be particularly true where the actions of the highway have led to a pattern of behaviour in reliance on that state of affairs.
Rational and reasonable decisions
Any decision by an authority may be over-turned or declared unlawful if it can be shown to be irrational in judicial review. This means that an authority must ensure that they are making rational and balanced decisions about road designs and road safety based on all the available evidence, guidance and policy. A road design that prioritises one type of user above all others may be unlawful where it should be expected that other users are provided for; for example, a design ignoring the needs of cyclists and pedestrians in favour of drivers.
