Article 20 Construction and maintenance of local highway worksI1

Any local highways constructed, altered or diverted under this Order must be completed to the reasonable satisfaction of the relevant highway authority and must, as regards the part constructed, altered or diverted, unless otherwise agreed between the undertaker and the relevant highway authority, be maintained by and at the expense of the undertaker for a period of 12 months from the day on which they are first open to through traffic and at the expiry of that period by and at the expense of the relevant highway authority.

In any action against the undertaker in respect of loss or damage resulting from any failure by it to maintain a local highway under this article, it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the undertaker had taken such care as in all the circumstances was reasonably required to secure that the part of the local highway to which the action relates was not dangerous to traffic.

For the purposes of a defence under paragraph (2), the court must in particular have regard to the following matters—

but for the purposes of such a defence it is not relevant that the undertaker had arranged for a competent person to carry out or supervise the maintenance of that part of the local highway to which the action relates unless it is also proved that the undertaker had given that person proper instructions with regard to the maintenance of the highway and that those instructions had been carried out.