The main barrier and obstacle to the uptake of cycling is safety. This has been the consistent theme with which Workplace Travel Planners and all engaged on promoting cycling have had to contend for the past two decades and earlier. Recent surveys show no sign of this changing.
Safety encompasses both collisions between road users and the cycle infrastructure. This is recognized in the co-chair’s introduction thus:
“Last year’s Local transport Note on Cycle Infrastructure Design (Local Transport Note 1/20) has established a clear expectation that the facilities must be of a high standard”.
The Report recommends:
- A five-year (financial) settlement for each transport/highway authority
- Active Travel England to establish active-travel quality mark
- A new Highways Act
Does this mean that the cycling population can look forward to an end of ill-executed cycle lanes containing pinch points, non-reflective or unilluminated access controls and random sign/ lighting columns intruding into cyclists’ space? That’s beside the roulette of decaying surfaces, long-forgotten utility covers and overgrown vegetation.
While the LTN 1/20 has been “universally praised for setting exacting standards and providing delivery agencies with sufficient detail to implement them”, in practice it is likely to make not a jot of difference to the accountability of Highway Authorities for cycle safety on the existing (or new) infrastructure for one very simple reason. As it is neither Statute nor Regulation but only a guide, design shortcomings which lead to injury and loss will continue to be assessed by the Courts on the basis of the difficult common law test of reasonably foreseeable harm being caused by negligence.
Thanks to the devolution of powers to national assemblies, LTN 1/20 only applies to England and Northern Ireland. Scottish and Welsh cyclists need to refer to Cycling by Design and Active Travel Design Guidance respectively.
Non-compliance with the LTN, (for example in terms of geometric design (width), maintenance, positioning of lighting or sign poles, or conspicuity of access controls) is not a passport to restitution or compensation for the cyclist, always assuming that the cyclist’s representatives are aware of its existence.
Whatever was the cause of a cyclist’s misfortune will be analysed as to whether or not it formed part the fabric of the Highway (bollards for example are not) to ascertain if the usual Highways Act S41 provision of failure to maintain applies along with its associated Statutory Defence in S58.
Potholes and other damage to the running surface are S41 Highways Act defects, as are failing utility covers, ice and snow. Bollards, intrusive sign and lighting columns, invisible access controls and most of the infrastructure to which the LTN applies, are not.
If the HA does not apply, then the claimant is back in the wide-open spaces of what constitutes danger, common law negligence or nuisance and reasonable foreseeability of harm.
And Highway Authorities know that, which means that claims arising from failings in facility design and provision are robustly defended (and appealed when such a claimant initially succeeds), meaning that the deepest pockets win. For that reason, it will continue to be difficult to find a representative to run such an infrastructure claim on a no win no fee basis. For acceptance of a claim the lawyer’s risk assessment must indicate at least a 60% prospect of success. Not what a victim wants to hear.
When an existing provision falls short of either the current or previous LTN specifications, the prospect of a Highway Inspector either realising or doing anything about it is vanishingly small. Due to the LTN lacking authority beyond a guiding principle it is not about to become a benchmark by which sub-standard facilities are judged, nor a passport to a successful claim. Those remain the province of common law negligence or nuisance, for all but failure to maintain the fabric to which the Highways Act applies.
In summary, while the LTN is a vision of the promised land, cyclists remain stuck with the facilities which we currently have. Although those may fall lamentably short of the halcyon world described, the LTN flatters only to deceive if it is seen as a guarantee of redress for injuries sustained due to an existing (or even a new) facility which fails to measure up. The same goes for all the other learned works (London’s Cycling Design Standards) because they carry no mandatory authority.
If not already apparent, it has to be emphasised that Highway Defect and Infrastructure claims are massively complicated and fact specific. Whether all the nuances will be within the knowledge and experience of anyone but an experienced cycle lawyer are reasons to seek a specialist opinion as unfamiliarity may either lead a claimant into a time-consuming blind alley or worse, to overlook a key element which could win a claim.