Road Management Plan Report, June 2013

ROAD MANAGEMENT PLAN REPORT

JUNE 2013

Table of contents

1.Introduction

2.Public Notices

3.RMP Review

4.RMP Review Recommendation

Attachment 1

1.2011 Road Management Plan Audit Recommendations:

2.2012 Road Management Plan Audit Recommendations:

3.Risk Management / Insurance Branch Comments

4.Road Management (Feb 2010 version) Review

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1. Introduction

A review of the City Of Melbourne’s Road Management Plan (Feb 2010 version) was undertaken by the Engineering Services Branch in June 2013, pursuant to section 54 (5) of the Road Management Act 2004 and section 301 of the Road Management (General) Regulations 2005.

The RMP review included the following actions:

• Placement of public notices in The Age and Melbourne Leader newspapers and Victorian Government Gazette;
• Establishment of a RMP review committee comprising Michael Norton (Principal Engineer Infrastructure - Chairperson), Craig Stevens (Principal Engineer Services), Bandara Rajapakse (Team leader Infrastructure Design) and Lionel Galappatthi (Team Leader Assets and Maintenance Works);
• Analysis of the RMP audit report recommendations conducted in 2011 and 2012 by independent auditor Frank Sultana; and
• Seeking advice from the Council’s Risk Management / Insurance Branch and the Council’s public liability insurer Civic Mutual Plus.

1. Public Notices

Public notices were placed in The Age and Melbourne Leader newspapers and the Victorian Government Gazette in May 2013 allowing for the 28 day period for the receipt of any public submissions. No public submissions were received.

1. RMP Review

The review committee met on two occasions dated 13 and 25 June 2013. The review comprised the following elements:

• Assessment of the 2011 and 2012 RMP audit report recommendations for relevance to impact on the Council’s current RMP version;
• Assessment of advice received from Council’s Risk management / Insurance Branch and Civic Mutual Plus (Council’s public liability insurer) on suggested improvements / enhancements to the Council’s current RMP;
• Review of the Council’s current RMP intervention and response time standards and any administrative / document reference updates. The review committee adopteda practical approach to the achievement of response times to ensure that Council’s liability to a claim is further protected; and
• The RMP review is detailed in Attachment 1 table

1. RMP Review Recommendation

The RMP review committee recommends the following:

• The Council’s current RMP (version Feb 2010) be amended as detailed in Attachment 1 table including minor updates to reference documents;
• The process to amendthe Council’s RMP be pursuant to section 54 (6) of the Road Management Act 2004 and sections 303 and 304 of the Road Management (General) Regulations 2005;
• The RMP (2013 version) be amended in November 2013; and
• The amended RMP be approved by the Manager Engineering Services as Council delegate in accordance with Council’s resolution dated 24 November 2009

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Attachment 1

1. 2011 Road Management Plan Audit Recommendations:

1. 2012 Road Management Plan Audit Recommendations:

1. Risk Management / Insurance Branch Comments

1. In regards to Council’s liability exposure if possible the benchmarks set in our Civil Infrastructure contract should be slightly higher than the Road Management Plan, but certainly not the other way round. If the benchmarks are exactly the same in both documents then the moment there is underperformance in the Civil Infrastructure contract it will mean we have breached our Road Management Plan and have legal exposure if the claimant can demonstrate this breach (in court or via Freedom of Information). From a legal perspective reactive intervention should be Council’s first risk priority.

1. Consider how the plan can cope with damage to infrastructure during extreme weather events, e.g., if flooding causes a large number of high risks across the municipality then can we repair or make safe if our resources are going to be stretched? There is a section on Force Majeure on page 20 but this seems to relate to formally declared natural disasters and events as opposed to more regular once a year type extreme weather events.

1. Page 33, Intervention Levels for Third party claims – consider a conservative approach for these. We’re continuing discussions with Lionel about claims involving third party assets, particularly Telstra pit covers. In 2011 we received a claim that alleged that “Council had knowledge ofthe defective footpath, conveyed its knowledge of the defective footpath to Telstra and failed to monitor Telstra's repair of the footpath.” The plaintiff's solicitors indicated that they will rely on, not only the existence of a 'sunken pit', but also the presence of a 'raised edge' of footpath adjacent to the 'sunken pit’. We successfully argued that we didn’t have liability in this matter and did not have to pay any compensation, however we had considerable costs just to investigate and defend.

3. Risk Management / Insurance Branch Comments (cont’d.)

1. Recommend reviewing the non-road areas such as off-street car-parks that are listed in the register of public roads. Listing these aspects in the Road Management Plan makes them judged against the Road Management Plan standards. A comment from one of our lawyers who takes a more aggressive approach to defending liability claims is that “if you leave a road off you can never be liable for it under Section 107 of the Road Management Act”

1. The MAV audit also recommended that we document our maintenance programs and standards for our Shared Pathways and this is being followed up separately with Park Services so that they detail this in their documents rather than the Road Management Plan.

1. Page 23, response times for High Risks - 40minutes appears to be a little ambitious; in our benchmarking with other metro Councils we’ve found they have a 4 hour period for responding to high risks. In last year’s MAV Insurance Liability audit your branch scored maximum points for our reactive and proactive inspections from a sample of four roads and footpaths, however intervention levels were not fully met in the two previous audits.

1. We also undertook some comparison with the VicRoads Road Management Plan and their levels are also considerably more conservative than Council’s, with a 4 hour period for their highest category defects/risks.

1. There also seems to be no definition for low, medium and high risks, perhaps you could use the definitions that you’ve used within the Civil Infrastructure contract.

1. Just a general comment on ‘repairing or make safe’ - Council’s actions regarding particular claims may be argued as not appropriate if it can be demonstrated by claimants that the actions were not reasonable (e.g., if someone was injured where a temporary witches hat was placed over a high risk area for several days as opposed to another better temporary solution such as hot mix asphalt.)

3. Risk Management / Insurance Branch Comments (cont’d.)

1. Alternative approaches – One of our lawyers with a slightly differing view to MAV Insurance has advised us that for more legal protection you could remove the prescriptive/mandatory time frames from the Road Management Plan and just keep this document very high level and flexible, whereas you would have a separate Road Management Policy that lists the specific standards. Apparently City of Dandenong do this but other Councils haven’t taken this approach.

1. Further notes from the MAV Insurance guidelines:

• It is crucial that if a RM Plan is to offer maximum assistance in defending claims it must be achievable and compliance must be capable of being demonstrated under the scrutiny of litigation. It serves no good purpose for a RM Plan to be aspirational in nature - so don’t set the bar higher than you can reasonably jump. The most common areas that tend to be unachievable are:

• proactive inspection timelines
• intervention levels – consider the legal precedent to determine whether they are really achievable or necessary given your resources and competing priorities. The Supreme Court of Victoria Court of Appeal decisions of Boroondara City Council v Cattanach [2004], and Greater Shepparton City Council v. Davis [2004] found that councils do not owe a duty of care to protect pedestrians from obvious defects or hazards in footpaths and roads
• timeframes for response to defects that are over intervention levels.

1. Road Management (Feb 2010 version) Review

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