Adoption and Maintenance of Highways
Highways can be maintained at public expense through adoption by highway authorities or other statutory processes. Not all highways are automatically maintainable at public cost, and specific criteria need to be met for a highway to be classified as maintainable. The adoption process and various methods, such as those outlined in the Highways Act 1980, play a crucial role in determining which highways are eligible for public maintenance.
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Presentation Transcript
ADOPTION AND ADOPTION AND MAINTENANCE OF MAINTENANCE OF HIGHWAYS HIGHWAYS
Introduction Introduction Not all highways are maintainable at the public expense. Highways may become maintainable at the public expense by being adopted by the highway authority pursuant to a statutory process. In addition, some highways may be maintainable at the public expense despite not having been formally adopted.
Introduction Introduction S.36 HA specifies such highways maintainable at the public expense, which include: Highways that were so maintainable under the Highways Act 1959; Highways constructed by a highway authority; Highways constructed under the housing legislation; Trunk roads and special roads; and Public paths created pursuant to creation orders, agreements and diversion orders.
Introduction Introduction Highways that are created due to long use over time will not be maintainable at the public expense unless they are subsequently adopted by the highway authority.
Adoption Adoption Three primary methods of adoption: 1. Section 38 Highways Act 1980. 2. Section 37 Highways Act 1980. 3. Section 228 Highways Act 1980.
Section 38 Section 38 Agreements Agreements S.38(3): A local highway authority may agree with any person to undertake the maintenance of a way (a) which that person is willing and has the necessary power to dedicate as a highway, or (b) which is to be constructed by that person, or by a highway authority on his behalf, and which he proposes to dedicate as a highway; and where an agreement is made under this subsection the way to which the agreement relates shall, on such date as may be specified in the agreement, become for the purposes of this Act a highway maintainable at the public expense.
Power to Dedicate Power to Dedicate Only the freehold owner can effectively dedicate as the person with the capacity to bind the land in perpetuity. Importance of demonstrating title.
Importance of Importance of Plans Plans Accuracy of plans is crucial. Betterment Properties Weymouth v James Carthy [2010] EWCA Civ 1401 - importance of ensuring that intention of parties is agreement and plans. accurately reflected in
Registration Registration Overseas Construction (1995) 70 P & CR 322 section 38 agreements not binding on subsequent purchasers. Investment Services v Simcobuild Importance of registering as a local land charge to ensure its enforceability.
Section 37 Section 37 Adoption Adoption S.37(1): A person who proposes to dedicate a way as a highway and who desires that the proposed highway shall become maintainable at the public expense by virtue of this section shall give notice of the proposal, not less than 3 months before the date of the proposed dedication, to the council who would, if the way were a highway, be the highway authority therefor, describing the location and width of the proposed highway and the nature of the proposed dedication.
Section 37 Section 37 Adoption Adoption Notification procedure. Capacity to dedicate. HA able to object on ground not of sufficient utility to public . Certification requirement. Commuted sum cannot be required. Uncertainty and delay implications.
Section 228 Section 228 Adoption Adoption S.228(1): When any street works have been executed in a private street, the street works authority may, by notice displayed in a prominent position in the street, declare the street to be a highway which for the purposes of this Act is a highway maintainable at the public expense, and on the expiration of one month from the day on which the notice was first so displayed the street shall, subject to subsections (2) to (4) below, become such a highway.
Section 228 Section 228 Adoption Adoption Street works defined in s.203(3) as: any works for the sewering, levelling, paving, metalling, flagging, channelling and making good of a street, and includes the provision of proper means for lighting a street . Very wide. Not required to be carried out by the street works authority.
Section 228 Section 228 Adoption Adoption Private street defined in s.203(2) as a street that is not a highway maintainable at the public expense . Street is very widely defined. BUT street must not have any highway maintainable at the public expense running along it.
Section 228 Section 228 Adoption Adoption Notice by street works authority declaring street to be highway maintainable at public expense. Right of owner(s) of street to object. Street works authority able to apply to magistrates court for order overruling objection. Only other means of challenging section 228 notice is judicial review within 2 month period.
Section 228 Section 228 Adoption Adoption Rusby v Harr [2006] EWCA Civ 865 Highway status cannot be challenged by landowner subsequently in civil proceedings for trespass after expiry of time limits. Grounds of objection to s.228 notice include the sufficient public utility test. Authority only required to adopt under s.228 where application made by majority in rateable value of owners of premises in street under s.228(7).
S.41 Duty of S.41 Duty of Maintenance Maintenance S.41 HA: Duty on highway authority to maintain a highway maintainable at the public expense. Maintenance is partially defined in s.329(1) as including repair .
S.41 Duty of S.41 Duty of Maintenance Maintenance Nature of Duty: House of Lords in Goodes v. East Sussex County Council [2000] 1 WLR 1356. Duty is confined to keeping the structure and physical fabric of the highway in repair. Duty does not extend to transient matters on highway such as accumulation of water, ice, snow or oil on the surface of the highway (but separate duty in s.41(1A) re ice & snow.
S.41 Duty of S.41 Duty of Maintenance Maintenance Nature of Duty: Physical fabric includes highway drainage system. No requirement to improve highway. Obstructions do not amount to a highway being out of repair . May include retaining walls.
S.41 Duty of S.41 Duty of Maintenance Maintenance Standard of Maintenance: Highway must be kept in such a state of repair that it is reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition: Goodes.
S.58 Defence S.58 Defence Special Defence available under s.58 if authority able to prove that it has taken such care as in all the circumstances was reasonably required to secure that the highway was not dangerous for traffic. Number of relevant factors taken into account: s.58(2). BUT lack of ability to rely on lack of resources as s.41 is an absolute duty.
Enforcement of Enforcement of Duty Duty S.56 process available to any person to seek enforcement of s.41 duty by serving a notice on highway authority alleging a highway maintainable at the public expense is out of repair. Very valuable weapon.
