Highway Authority

AuthorAngela Sydenham
7 Highway Authority

7.1 Duties of highway authority

The highway authority1has many duties and powers relating to public rights of way. These include making of improvement plans and public path orders, maintaining publicly maintainable rights of way including unblocking drains and felling trees,2and asserting and protecting the rights of the public to the use and enjoyment of rights of way.

The highway authority must:

 keep the surface of public rights of way which are maintained at public expense in a fit state for public use

 make sure obstructions are removed

 maintain some bridges over natural watercourses, including farm ditches

 provide at least a 25% contribution to landowners’ costs for replacing and maintaining structures for the control of animals, e.g. gates or stiles, on completion of the work to a standard the highway authority is satisfied with

 make sure there are no notices that prevent or discourage the use of a public right of way

 add signs where a public right of way leaves metalled roads

 make sure the public’s rights to use a public right of way are protected

 make sure landowners carry out their duties, and take action if they don’t.3

Anyone can report an obstruction to the local authority and request that it be removed. The authority must respond to all requests within 1 month to confirm receipt, contact the person who complained to tell them what action is being taken and ensure the obstruction is removed, either by the local authority or the person responsible for it.

1For definition, see HA 1980, s 1.

2Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950; R (Dillner) v Sheffield

City Council [2016] EWHC 945 (Admin).

3Natural England Guidance, ‘Public rights of way: local highway responsibilities’, available at www.gov.uk/guidance/public-rights-of-way-local-authority-responsibilities.

84 Public Rights of Way: The Essential Law

If the obstruction is not removed within 2 months of receipt of the complaint, the person who complained can apply for a court order to have it removed. The magistrates’ court may then take out an order against the local highway authority for the removal of the obstruction.

7.2 Legal interest of highway authority

7.2.1 Public maintainable highways

Where a highway is publicly maintainable, the surface is vested in the highway authority. Section 263(1) of the HA 19804provides, ‘… every highway maintainable at the public expense, together with the materials and scrapings thereof, vests in the highway authority who are for the time being the highway authority for the highway’.

The question of whether a highway is maintainable at public expense is complex. But as a guiding principle, public rights of way will be publicly maintainable if they are created formally or if they were created before 16 December 1949.5

7.2.2 The extent of the public maintainable highway

The highway authority has a statutory form of determinable fee simple in that its interest lasts until the highway is stopped up or diverted. However, that interest does not extend up to the sky and down to the centre of the earth. The interest in the airspace and below the surface is limited to that which is required by the authority for the exercise of its powers and the performance of its statutory duties. In the words of Lord Herschell in Tunbridge Wells Corpn v Baird,6‘The interest of the highway authority is that which is necessary for its control, protection and maintenance as a highway for public use’.

There is no statutory definition of the extent required. Lord Denning, in Tithe Redemption Comrs v Runcorn Urban District Council,7referred to ‘the top spit, or perhaps, I should say the top two spits of the road …’.

The question most often arises in connection with the laying of pipes, wires, cables and other apparatus in the highway. It has also arisen in relation to possession proceedings. In Wiltshire County Council v Frazer,8it

4This provision was first introduced by Public Health Act 1848, s 68.

5See 7.3.1.

6[1896] AC 434.

7[1954] 2 WLR 518.

8(1984) 47 P&CR 69.

was held that the highway authority’s ownership of the surface enabled it to bring an action for possession against squatters who had set up their caravans on the highway.

The width of the highway is also an important issue. Where rights of way are entered on the definitive map, the width may be specified in the statement accompanying the map. If not, the width may be ascertained from other documents. Failing that, the width will be the historic use of the route.9

There are also presumptions in relation to highways which may be relevant, depending on whether there is: (1) a metalled road; (2) fences or dykes; (3) ditches; or (4) no defined track:

(1) The public are not confined to using only the metalled road. It may be that the verges of the road have also been dedicated to the public use. But where a metalled road crosses unenclosed land, and there is no indication of the limits of the highway by fences, ditches, etc., then the presumption is that the public right of way is limited to the metal track.10

(2) If it is established that fences adjoining a highway were put up in order to separate it from the adjoining land, there is a presumption that the public are entitled to a right of passage over the whole space between the hedges and dykes unless there is evidence to the contrary.11However, there is no presumption that the fences were put up to separate the adjoining land from the highway.12

The fence may have nothing to do with the highway.13For instance, the fence may be so far away from the road that it cannot have any connection with it; or the fence may have been put up for the purpose of separating farmland from waste.

(3) Ditches, such as those normally made by owners on the boundaries of their property, are not presumed to be part of the highway.14

However, it is possible for ditches to be piped and filled in and

9Easton v Richmond Highway Board (1871) LR 7 QB 69.

10Belmore (Countess) v Kent County Council [1901] 1 Ch 873.

11Sinclair v Kearsley [2010] EWCA Civ 112.

12Hale v Norfolk County Council [2001] 2 WLR 1481, qualifying Attorney General v Beynon

[1970] 1 Ch 1.

13Hinds and Diplock v Breconshire County Council [1938] 4 All ER 24.

14Hanscombe v Bedfordshire County Council [1938] 1 Ch 944.

86 Public Rights of Way: The Essential Law

dedicated as part of the highway. Moreover, ditches are sometimes made specifically for draining the highway.15

(4) Where there is a public right of passage over a field or open space but no defined track, then the right is probably confined to a strip of reasonable width running between specified points.

Sometimes highways are created as a result of statute or by orders or agreements. These may, and sometimes must, specify the widths.16

7.2.3 Non-publicly maintainable highways

If a highway is not publicly maintainable, the surface as well as the subsoil will remain vested in the landowner. However, the highway authority has powers of control over the highway and could therefore be liable in nuisance for obstruction.

7.3 Maintaining of public rights of way

7.3.1 Public rights of way which are publicly maintainable

Dedication before 16 December 1949

At common law, the general rule was that the inhabitants of a parish were liable to repair all highways within the parish. The Highways Act 183517

provided that in order for highways dedicated after the Act came into force to be publicly maintainable, a procedure had to be followed. The Act did not apply to footpaths or bridleways which continued to be repairable by the public at large.

Section 47 of the National Parks and Access to the Countryside Act 1949 (NPACA 1949) declared that all existing public paths were repairable by

15Chorley Corpn v Nightingale [1907] 2 KB 637.

16Town and Country Planning (Public Path Orders) Regulations 1993 (SI 1993/10), amended by the SI 1995/451 Regulations; Public Path Orders Regulations 1993 (SI 1993/11), amended by the SI 1995/451 Regulations; Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 (SI 1993/12), amended by (SI 1995/451 Regulations); Rail Crossing Extinguishment and Diversion Orders Regulations 1993 (SI 1993/9), amended by the SI 1995/451 Regulations. See also the Planning Inspectorate, Rights of Way Section, Advice Note No 16, ‘Widths on orders’ (May 2003), available at www.gov.uk/government/publications/rights-ofway-advice-note-16-widths-on-orders.

17Highways Act 1835, s 23.

the inhabitants at large. Therefore, it was considered that the duty to maintain such paths would lie with the parish, even if there had been no formal adoption. Section 49 of the NPACA 1949 expressly provided that section 23 of the Highways Act 1835 should apply to all paths dedicated after the commencement of the 1949 Act. In other words, such paths would no longer be publicly maintainable unless one of the provisions discussed below applied.

Paths created by public path creation orders or agreements

Section 38 of the Highways Act 1959 provided that footpaths and bridleways created after the passing of the Act, pursuant to public path creation orders and agreements, should be maintained at public expense.

Formally adopted paths

A landowner may expressly dedicate a public right of way, but unless it is formally adopted following the statutory procedures, it will not be maintainable at public expense. To do this, he must give notice of the proposed dedication to the highway authority and repair it for at least 12 months.18

Diverted paths

Paths diverted pursuant to diversion orders, including special and Site of Special Scientific Interest (SSSI) diversion orders, and agreements will be...

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