On 5th December 2024, the City of London Court confirmed that not replacing High Friction Surfacing can be considered S74 overrun where no attempt to reinstate it has occurred.

It was claimed in mitigation that although it was agreed that the HFS was not reinstated, the carriageway was, in actuality, fully available to highway users. Therefore, no actual possession of the site was in place that would interfere with the free flow of vehicular traffic.

It was also claimed that such an omission was of little detriment to the highway user and, as such, would have minimal impact.

The omission was over 12 months old, and the authority used its discretion in only applying the overrun charges from the time of notification to the relevant undertaker until the HFS was placed to complete a permanent reinstatement. This period amounted to 21 working days on a Category One road.

The resulting charge amounted to £195,000.00

Rather than enter into a meaningful negotiation with the local authority, the undertaker relied on the defence that the original reinstatement was over twelve months old and such a charge was time-barred by Regulation 9.(11) where longer than three months of a works clear notice had occurred.

After carefully considering the statutory scheme as a whole, the court determined that the charge was lawful and applied to the case’s particulars.

The charge was upheld, plus interest (circa £30,000.00) and costs.

What this ruling appears to show is:

1) HFS is confirmed as part of overall reinstatement (as the Cop already implies).
2) You can only close a reinstatement under an interim notice if an interim HFS is placed and meets necessary performance requirements.
3) A reinstatement is only completed once all the required elements are in place, whether under an interim or permanent notice.
4) Even though “slippery surface” signs may be placed before applying HFS, the reinstatement cannot be considered interim or permanent until HFS is completed.
5) Possession of a site does not necessarily mean physical possession.
6) If permanent or interim HFS fails, it is simply a non-conformance of S2 of the SROH where an intervention limit has been exceeded.

The above is a very basic summary of the court’s findings, which gave considerable attention to relevant primary and secondary legislation and associated statutory instruments.