Article 13 Construction and maintenance of new, altered or diverted streets and other structuresI1

Subject to paragraphs (2) to (6), the streets authorised to be constructed, altered or diverted under this Order are to be public highways and are to be maintained by and at the expense of the highway authority.

Any special road or trunk road to be constructed under this Order must be completed to the reasonable satisfaction of the strategic highway authority and, unless otherwise agreed in writing with the strategic highway authority, the highway including any culverts or other structures laid under it must be maintained by and at the expense of the strategic highway authority from its completion.

Where a special road or trunk road is altered or diverted under this Order, the altered or diverted part of the highway must be completed to the reasonable satisfaction of the strategic highway authority and, unless otherwise agreed in writing with the strategic highway authority, that part of the highway including any culverts or other structures laid under it must be maintained by and at the expense of the strategic highway authority from its completion.

Where a street which is not and is not intended to be a public highway is constructed, altered or diverted under this Order, the street (or part of the street as the case may be) must, when completed to the reasonable satisfaction of the street authority and unless otherwise agreed in writing with the street authority, be maintained by and at the expense of the undertaker for a period of 12 months from its completion and at the expiry of that period by and at the expense of the street authority.

In the case of a bridge constructed under this Order to carry a highway (other than a special road or a trunk road) over or under a special road or trunk road, the highway surface (being those elements over the waterproofing membrane and indicator layer) must from its completion be maintained by and at the expense of the undertaker and the remaining structure of the bridge must be maintained by and at the expense of the strategic highway authority unless otherwise agreed in writing with the strategic highway authority.

In the case of a bridge constructed under this Order to carry a highway (other than a special road or a trunk road) over or under another highway which is not a special road or trunk road, both the highway surface and the structure of the bridge must be maintained by and at the expense of the undertaker from their completion.

In any action against the undertaker or the strategic highway authority in respect of loss or damage resulting from any failure by it to maintain a street or structure 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 or the strategic highway authority had taken such care as in all the circumstances was reasonably required to secure that the part of the street or structure to which the action relates was not dangerous to traffic.

For the purposes of a defence under paragraph (7), the court must in particular have regard to the following matters—

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