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Maintenance and Adoption of Highways

Document Cited authorities 38 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages167-181
Chapter 18


Maintenance and Adoption of Highways

INTRODUCTION

18.1 Not all highways that have been created will be maintainable at public expense. A survey conducted in 1972 recorded that there were at that time approximately 40,000 unadopted roads across England and Wales, composing of about 4,000 miles of track.1Such roads falls into two categories: new roads that have been constructed and subsequently dedicated to the public; and highways which, often by historical accident, remain unadopted. The emphasis in this chapter is not on the standard of repair or the liability for failing to do so, but the methods by which highways may become maintainable at public expense.

WHO IS RESPONSIBLE TO REPAIR?

18.2 Historically, the inhabitants of the local parish were responsible for repair of the highway in their area, unless it could be shown that an individual or other body was responsible for its maintenance, which may have occurred as a result of statute,2prescription,3tenure or enclosure.4

1House of Commons Library, Standard Note, ‘Roads: Unadopted’, 18 October 2010.

2Local or other Acts of Parliament may have provided expressly that a highway was not maintainable by the inhabitants of the local parish, but express words to that effect would be required.

3Liability could arise by way of prescription, but it was said the custom must have existed since time immemorial. Thus where the highway itself could be shown to post-date 1189 AD, that would be enough to rebut such a claim. The full history is beyond this work. The reader is directed to Highway Law and Practice at page 124.

4Where land over which a right of way subsisted became impassable, the courts had recognised that user of the highway might divert onto adjoining land. See e.g. R v Oldreeve (1868) 32 JP Jo 271, per Willes J, ‘if there is a public way over a man’s field, and he puts an obstruction upon it, then the public … are entitled to go round a reasonable distance into his field by the side of the way, and use that as a temporary way until he removes the obstruction. But if the obstruction is caused by the actions of the elements, then no such right accrues to the public’. Note that the right to deviate in respect of temporary obstruction has been held even for a period of 50 years. See Dawes v Hawkins (1860) 141 ER 1399. See also R (Gloucester Country Council) v Secretary of State for the Environment, Transport and the Regions (2001) 82 P & CR 15 at [57], per Hallett J. Where the land had been enclosed, so as to prevent deviation, the landowner benefiting from the enclosure would be liable to maintain and keep the way in repair. Such a liability has now been abrogated by the HA 1980. Such liability would only in any event attract itself where the highway involved had existed from time immemorial: Henn’s Case (1632) WJo 296.

168 Restrictions on the Use of Land

18.3 Section 23 of the Highways Act 1835 effectively ended the automatic liability of the parish to repair all highways in their area. After that Act came into force, where highways were constructed or otherwise dedicated to the public, such ways would not become maintainable at public expense unless a certain procedure was followed.5The 1835 Act did not apply to footpaths and bridleways, but by virtue of the National Parks and Access to the Countryside Act 1949, the provisions of the 1835 Act were later applied to all public paths (unless created by a ‘public path agreement’) following implementation on 16 December 1949.6

18.4 Neither Act had retrospective effect and thus all highways which were maintainable before 1835 at public expense remain unaffected. After that date there will be some highways which, because the formalities of the Highways Act 1835 were not followed, will be repairable by nobody.7

18.5 By virtue of section 38 of the Highways Act 1959, the duty of the inhabitants to maintain highways in their area was effectively abolished. Highways maintainable at public expense will now largely be a matter for the relevant Highway Authority.8Following the implementation of the HA 1980, a Highway created after the implementation of the Act, will become automatically maintainable at public expense where:9

(a) The highway was constructed by the Highway Authority, otherwise than on behalf of some person who is not a Highway Authority.

(b) The highway was constructed by a council under Part II of the Housing Act 1985 (subject to certain conditions).10

(c) The highway is a trunk or special road.11

(d) The highway is a footpath, bridleway or restricted byway which was created by virtue of a public path creation order, a public path diversion order or by virtue of an order under section 247 or section 257 of the TCPA 1990 or otherwise by a public path creation agreement.12

5Note, however, that Highways Act 1835, s 23 as originally enacted did not apply to footpaths and bridleways. The position then changed with the implementation of the National Parks and Access to the Countryside Act 1949.

6National Parks and Access to the Countryside Act 1949, s 49.

7But see Leigh Urban District Council v King [1901] 1 QB 747.

8But see paras 17.1 et seq.

9These are all outlined at HA 1980, s 36(2).

10The highway will be maintainable at public expense where a highway is constructed by a council within its area under Housing Act 1985, Pt II, other than one in respect of which the local Highway Authority is satisfied has not been properly constructed, and a highway constructed by a council outside its own area under Pt II, being in the latter case, a highway the liability to maintain which is vested in the council which is the local Highway Authority for the area in which the highway is situated. HA 1980, s 36(2)(b).

11For the definitions of ‘trunk’ and ‘special roads’, see paras 15.7 and 15.10. Note that a trunk or special road will be maintainable at public expense, but not in respect of a bridge or some other part which another person is liable to maintain by virtue or a charter or special enactment, or by reason of tenure, enclosure or prescription. HA 1980, s 36(3).

12In relation to public path creation orders, see paras 16.44–16.47. For public path diversion orders see paras 20.57 et seq. For public path creation agreements see paras 16.37–16.40. In relation to orders under TCPA 1990, ss 247 and 257, for s 247 see para 20.8 and for s 257 see para 20.25.

(e) The highway is a footpath, bridleway or restricted byway created by virtue of a rail crossing diversion order, or by an order under section 14 or section 16 of the Harbours Act 1964 or by virtue of section 1 or section 3 of the Transport and Works Act 1992.13

(f) The highway is a footpath, bridleway, restricted byway or a way over which the public have a right of way for vehicular and all other kinds of traffic created by virtue of a special diversion order or a site of special scientific interest (SSSI) order.14

18.6 The list provided above is not exhaustive, but where a highway has been constructed after the coming into force of the HA 1980 and it does not fall in one of the above listed categories, the highway will generally not be maintainable at public expense, unless it has been formally adopted by one of the procedures discussed below.

18.7 Where a Highway Authority is of the view that a highway it is obliged to maintain is no longer necessary for public use, it can apply for an order to discharge its liability to so maintain the way.15A list of all publicly maintainable roads is kept by the relevant council (as above) for each area.16Broadly speaking, however, we can deduce that a highway will be publicly maintainable where:

(a) the highway is a highway which existed before 31 August 1835 or a public path (bridleway or footpath) which existed before 16 December 1949;17or

(b) the highway was created after 1835/1949 and the relevant procedure as applied at the time was followed so as to make the road maintainable at public expense;18or

(c) the highway has, as a result of some subsequent procedure, been formally adopted by the Highway Authority.19

THE ADOPTION OF ROADS

18.8 The HA 1980 provides for specific ways in which a highway may become maintainable at public expense. Principally, these are contained in sections 37 and

13In relation to Rail Crossing Diversion Orders, see paras 20.69–20.74.

14For SSSI diversion orders, see paras 20.75–20.78.

15See HA 1980, s 47.

16HA 1980, s 36(6).

17The dates provided relate to the implementation dates of the Highways Act 1835 and the National

Parks and Access to the Countryside Act 1949, respectively.

18The HA 1980 does not have retrospective effect and the Act makes it expressly clear that, where a highway was publicly maintainable for the purposes of the Highways Act 1959, it will continue to be so maintainable, HA 1980, s 36(1).

19See e.g. the provisions within HA 1980, s 38 as explained below where an existing highway (even where it is currently maintainable by some other person as a result of any special enactment, prescription or tenure) may become publicly maintainable by agreement.

170 Restrictions on the Use of Land

38. The reader should also see the private street works code and the advanced payments code, which are dealt with below.

Highways Act 1980, section 37

18.9 Section 37 of the HA 1980 allows for a person seeking to dedicate land as a highway (i.e. where it has not yet been so dedicated) and who desires such a way to become maintainable at public expense, to be able to give notice of his proposal to the Highway Authority for the area in which the proposed way subsists. Such a notice must be served not less than 3 months before the date of the proposed dedication. The notice must describe the location and width of the proposed highway and the nature of the intended way.20Where a person seeks to dedicate, as...

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