Highway Authority
| Author | Angela Sydenham |
| Pages | 83-109 |
7.1 Duties of highway authority
The highway authority
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.
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.
City Council [2016] EWHC 945 (Admin).
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 1980
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.
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,
There is no statutory definition of the extent required. Lord Denning, in Tithe Redemption Comrs v Runcorn Urban District Council,
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,
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.
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.
(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.
The fence may have nothing to do with the highway.
(3) Ditches, such as those normally made by owners on the boundaries of their property, are not presumed to be part of the highway.
However, it is possible for ditches to be piped and filled in and
[1970] 1 Ch 1.
86 Public Rights of Way: The Essential Law
dedicated as part of the highway. Moreover, ditches are sometimes made specifically for draining the highway.
(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.
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 1835
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
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.
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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