Highways maintainable at public expense: what are they, and how do you identify them?

February 11, 2022

Chris Richards

This article has been adapted from a talk which was given by the author as part of the Exchange Chambers Local Government and Social Housing Webinar 2022.

This article is intended as information only, rather than advice to be relied upon. Every case turns on its own facts. The author would always be happy to advise over email (richards@exchangechambers.co.uk) if there are any specific queries.

Introduction

If you are reading this article, you are probably familiar with the idea of a highway maintainable at public expense. This is a term which comes from the Highways Act 1980. A highway maintainable at public expense is one which highways authorities are required to maintain. If the highways authority does not maintain the highway properly, and there is an accident, there may be a claim. Most of the time, it is really obvious whether a particular highway is maintainable at public expense. However, you will occasionally encounter cases where it is much more uncertain. To be sure about whether a highway is maintainable at public expense, you may need to look carefully at the law. This article is intended to be a helpful guide to what is often a complex area of law.

What is a highway?

Before we come onto the concept of highways which are maintainable at public expense, it may be helpful to nail down what exactly is a highway. After all, a highway can only be maintainable at public expense if it is a highway.

You might think that the Highways Act 1980 would tell us what a highway is. There is a definition of sorts in section 329 of the Highways Act 1980:

Highways Act 1980, section 328:

In this Act, except where the context otherwise requires, “highway” means the whole or a part of a highway other than a ferry or waterway.

This is not particularly helpful!

We are therefore left with the common law definition. A highway is a way over which the public can freely pass and repass, at all seasons of the year, without let or hindrance.

There needs to be a ‘way’ in order for there to be a ‘highway’. If people are not travelling from A to B but are instead wandering all over the place, there will not be a way. If there is no way, there is no highway, and there is no highway maintainable at public expense.

How are highways created?

It is important to remember that there is a process by which a highway is created. Again, the highway needs to have come into existence for there to be a highway maintainable at public expense.

Highways can be created by statute. This is complex and beyond the scope of the article.

Highways can be created by the common law doctrine of dedication and acceptance:

  • Acceptance is really just the public using the highway and this can often be taken for granted.
  • Dedication as highway can be:
    • Presumed by statute where there has been continual use for 20 years (see section 31 of the Highways Act 1980);
    • Presumed under common law where the evidence considered in the round suggests that the highway has been dedicated. This usually requires evidence of the landowner intending to create a highway, and evidence of continuous and unobstructed use over a long period (though not necessarily 20 years).

In a typical highway disrepair cases you can usually take it for granted that the highway is a highway. But in more exotic cases you may need to give this some thought:

  • Has the landowner intended to create a highway which all members of the public can use? If you have a path running through a housing estate, and there is a big sign above saying ‘Residents Only’, this might be enough to rebut the suggestion that the highway has been dedicated as a highway. These were the facts in the case of Ley v. Devon County Council (unreported).
  • Is the use of the highway continuous and unobstructed? Are people able to pass and repass at all times of the year? Does the landowner sometimes block the route? Is there a gate which is sometimes closed or locked? This might again be enough to rebut the suggestion that the highway has been dedicated as a highway.

What is a highway maintainable at public expense?

You will see the phrase ‘a highway maintainable at public expense’ throughout this article. There is a definition in section 329 of the Highways Act 1980:

Highways Act 1980, section 329:

“highway maintainable at the public expense” means a highway which by virtue of section 36 above or of any other enactment (whether contained in this Act or not) is a highway which for the purposes of this Act is a highway maintainable at the public expense;

This might seem like another bit of slightly hopeless drafting. A highway maintainable at public expense is a highway which according to the Act is maintainable at public expense.

However, Section 36 of the Highways Act 1980 sets out how a highway can be maintainable at public expense. What is really being said here is if the highway falls within Section 36, it will be maintainable at public expense. We will look at Section 36 later.

Section 41 of the Highways Act sets out the duty which highways authorities are under in respect of highways which are maintainable at public expense.

Highways Act 1980, section 41(1):

 (1)  The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway.

It is important to remember that the duty only applies to highways authorities. There is a long list in section 1 of the Highways Act 1980 of the public bodies who are the highways authorities for a highways in a particular area. You will only be responsible for maintaining the highway under the act if you are the highway authority.

How else might a public body be responsible for maintaining a public highway?

It is also important to remember that the Highways Act 1980 is not the only way in which it may be suggested that a public body is responsible for a particular highway:

  • It might be argued that the public body owes a duty of care in common law to the users of a particular highway. There may be a claim brought in common-law negligence.
  • If there is a public body which is occupying the land where a public highway is present, it might be suggested that the public body has a duty to take care for the safety of visitors as a result of the Occupiers’ Liability Act 1957.

(There is also the duty in the Occupiers’ Liability Act 1984 but this is outside the scope of this article.)

The duty in the Occupiers’ Liability Act 1957 is set out below:

Occupiers’ Liability Act 1957, section 2:

(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

The duties under common law and the Occupiers’ Liability Act 1957 are much less important than the duty in the Highways Act 1980.

With regard to common-law negligence, there has been a distinction drawn between nonfeasance in terms of the highway (i.e. letting the highway degrade over time), and misfeasance (i.e. actively creating a danger, e.g. by digging a big hole). There is typically no liability in common-law negligence for nonfeasance. You will frequently see the Highways Act 1980 pleaded alongside common-law negligence in a typical highways disrepair case but common-law negligence usually does not take the Claimant any further.

Also, if the public body is occupying a particular piece of land, and there is a public highway running across it, it has historically been the law that there will be no liability under common law or the 1957 Act for the disrepair of the highway. The two most important cases supporting this proposition are set out below:

  • Gautret v Egerton(1867) LR 2 CP 371
  • McGeown v Northern Ireland Housing Executive [1995] 1 AC 233

The reasoning behind this rule is that a person using a public highway is not doing so because they have the permission of the landowner. They are doing so as of right. The duty in the 1957 Act (and common law) applies to a visitor, which is different to someone who is there as of right. However, there are some obiter comments in the recent case of Barlow v Wigan MBC [2020] EWCA 696 which suggest that this rule should only apply where the person is only lawfully on the land because of the presence of the public highway.

We can see that the duty in the Highways Act 1980 is the most important. This is going to be the focus of the rest of the article.

The list of highways maintainable at public expense

Highways authorities are required by section 36(6) of the Highways Act 1980 to keep a list of the highways maintainable at public expense in their area.

Highways Act 1980, section 36(6):

(6) The council of every county, metropolitan district] and London borough and the Common Council shall cause to be made, and shall keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense.

Section 36(7) makes clear that members of the public should be able to inspect this list.

This is a big trap for the unwary. The fact that a highway is on this list does not make it a highway maintainable at public expense. Equally, a highway is not on the list, it may still be maintainable at public expense. The list has no legal force to it. To be sure about whether a highway is maintainable at public expense you have to look under the bonnet and consider the law which determines whether a highway is maintainable at public expense.

The starting point – section 36 of the Highways Act 1980

Section 36 of the Highways Act 1980 gives a long list of ways in which a highway can be maintainable at public expense.

These can be divided neatly into two:

We have section 36(1), which states that highways which were maintainable before the commencement of the Highways Act 1980 continue to be so.

Highways Act 1980, section 36(1):

(1)  All such highways as immediately before the commencement of this Act were highways maintainable at the public expense for the purposes of the Highways Act 1959 continue to be so maintainable (subject to this section and to any order of a magistrates’ court under section 47 below) for the purposes of this Act.

We have section 36(2), which gives a list of individual types of highway which will be treated as being maintainable at public expense. We will come back to these later.

Highways Act 1980, section 36(2):

(2)  Without prejudice to any other enactment (whether contained in this Act or not) whereby a highway may become for the purposes of this Act a highway maintainable at the public expense, and subject to this section and section 232(7) below, and to any order of a magistrates’ court under section 47 below, the following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at the public expense—

[…]

Section 36(1) of the Highways Act 1980: highways which were maintainable at public expense before the commencement of the Highways Act 1980

Let’s start with Section 36(1). This states that highways which were maintainable before the commencement of the Highways Act 1980 continue to be so.

This is where things get really interesting. In order to see which highways were maintainable at public expense before the commencement of the Highways Act 1980, we have to look at an earlier version of the Highways Act 1980. This is the Highways Act 1959.

Section 38(1) of the Highways Act 1959

We start with Section 38 of the Highways Act 1959. This is very similar to section 36 of the Highways Act 1980 in that it sets out the ways in which a highway may be maintainable at public expense.

Section 38(1) is important in that removes any responsibility for maintaining highways from the inhabitants at large. We will see that before 1959 the inhabitants at large were sometimes liable for looking after public highways.

Highways Act 1959, section 38(1):

(1)  After the commencement of this Act no duty with respect to the maintenance of highways shall lie on the inhabitants at large of any area.

Section 38(2)(a) of the Highways Act 1959

Section 38(2)(a) then deals with highways which were maintainable before the commencement of the Act. You can see this is very similar to Section 36(1) of the Highways Act 1980.

Section 38(2)(a) again states that highways which were maintainable by the inhabitants at large, or a highway authority, before the commencement of the Highways Act 1959 will be maintainable at public expense:

Highways Act 1959, section 38(2)(a):

(2)  Without prejudice to any other enactment (whether contained in this Act or not) whereby a highway may become for the purposes of this Act a highway maintainable at the public expense, and subject to the provisions of this section and of subsection (6) of section two hundred and six of this Act, and to any order of a magistrates’ court made under section fifty of this Act, the following highways shall for the purposes of this Act be highways maintainable at the public expense, that is to say—

(a)  a highway which immediately before the commencement of this Act was maintainable by the inhabitants at large of any area or maintainable by a highway authority;

This raises the question – which highways were maintainable by the inhabitants at large, or a highway authority, before 1959? Here we really have to go back into the mists of time. The time when a highway came into existence often governs whether it was maintainable by the time the 1959 Act comes along.

There are four types of highway which will generally be maintainable before 1959.

[A] Highways in existence before 31 August 1835

We meet here an even earlier Highways Act – the Highways Act 1835.

Before 31 August 1835, which was the commencement of the Highways Act 1835, the inhabitants of the parish through which the highway ran were generally liable to repair the highway. The exception was where it could be proven that someone else was responsible for the repairs. These highways are often termed ‘ancient highways’. The chance of anyone being able to prove that someone other than the inhabitants at large was liable for repairing the highway is pretty low and you can usually take it as read that highways in existence before 1835, were repairable by the inhabitants at large. This means that they are maintainable at public expense under Section 38(2)(a) of the Highways Act 1959 and therefore Section 36(1) of the Highways Act 1980.

[B] Roads built between 1835 and 1959 (which had been formally adopted by the inhabitants at large)

Section 23 of the Highways Act 1835 stated that new “roads and occupation ways” would not be maintainable by the inhabitants at large unless a formal adoption procedure was followed. The adoption procedure is described in the Act. If the formal adoption procedure was followed the road should be maintainable. There may not be evidence of the adoption procedure being followed. However, the court can infer (where appropriate) that the road continued to have been maintained by the inhabitants at large. Evidence of repairs taking place can be enough to show that it was adopted.

[C] Footways dedicated between 1835 and 1949

Section 47 of the National Parks and Access to the Countryside Act 1949 is not particularly clearly worded but the effect of it is to recognise that public paths which are in existence by the commencement of the act will be repairable by the inhabitants at large. This act has been repealed but Barlow refers to it without any point being taken.

National Parks and Access to the Countryside Act 1949, section 47:

(1)  Subject to the following provisions of this Part of this Act, the rule of law whereby a highway is repairable by the inhabitants at large shall apply to all public paths, whether coming into existence before or after the commencement of this Act, notwithstanding anything contained in any enactment passed or made before the commencement of this Act and notwithstanding any liability to repair of any other person; and accordingly the enactments relating to highways so repairable shall have effect in relation to all such public paths.

[D] Footways dedicated between 1949 and 1959 (which had been formally adopted by the inhabitants at large)

Section 49 of the National Parks and Access to the Countryside Act 1949 stated that new footpaths would not be maintainable by the inhabitants at large unless a formal adoption procedure was followed. I repeat what was said earlier about the court being able to infer that the paths had been adopted.

National Parks and Access to the Countryside Act 1949, section 49:

Section twenty-three of the Highway Act, 1835 (which provides that such highways as are therein mentioned shall not become repairable by the inhabitants at large unless certain conditions are complied with on the dedication thereof) shall apply to any public path dedicated after the commencement of this Act otherwise than in pursuance of a public path agreement.

Section 38(2)(b-e) of the Highways Act 1959

Section 38(2)(b-e)) then lists the individual types of highway which will be treated as being maintainable at public expense. You can see that the content is very similar to Section 36(2) of the Highways Act 1980. I will say more about this when we return to Section 36(2) of the Highways Act 1980.

Highways Act 1959, section 38(2):

(b)  a highway constructed by a highway authority after the commencement of this Act, otherwise than on behalf of some other person not being a highway authority;

(c)  a highway constructed by the council of a borough or urban district within their own area under Part V of the Housing Act, 1957, and a highway constructed by a local authority outside their own area under the said Part V, being, in the latter case, a highway the liability to maintain which is, by virtue of the said Part V, vested in the council of the county, borough or district in which the highway is situated;

(d)  a highway being a trunk road or a special road; and

(e)  a highway, being a footpath or bridleway, created after the commencement of this Act in consequence of a public path creation order or a public path diversion order or dedicated after the said commencement in pursuance of a public path creation agreement.

We now return to the Highways Act 1980.

Section 36(2) of the Highways Act 1980: the list of highways specifically maintainable at public expense

Section 36(2) gives a list of individual types of highway which will be treated as being maintainable at public expense.

Highways Act 1980, section 36(2)(a):

(2) […] the following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at the public expense—

(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority;

Looking at this section, you might be forgiven for thinking that any highway which had ever been constructed by a highway authority would be maintainable at public expense. This is the plain reading of this section. However, the scope of this section has been tightened by the case of:

Barlow v Wigan Metropolitan Borough Council [2020] EWCA Civ 696

  • The highway authority needs to be acting in the capacity of a highway authority when constructing a highway for it to be highway maintainable at public expense. A highways authority which is not exercising a highway authority function when creating the highway (for example, if they are creating a park), will not be creating a highway maintainable at public expense.
  • It is not particularly clear from the judgment but it seems to be the case that this section only applies to highways constructed from 1980 onwards. Section 38(2)(b) of the Highways Act 1959 refers to highways constructed by a highway authority “after the commencement of this Act”. Section 36(2)(a) of the Highways Act 1980 is identical, but removes the reference to highways constructed “after the commencement of this Act”. The thought of the Claimant in Barlow was that Parliament had removed this section to make clear that any highway which had ever been constructed by a highways authority would be maintainable at public expense. However, there seems to have been some digging into the Parliamentary record and it was found that the Highways Act 1980 was intended to consolidate earlier legislation rather than make any dramatic changes. It seems to have been accepted that Section 36(2)(a) of the Highways Act 1980 should also be read as it if refers to highways constructed by a highway authority “after the commencement of this Act”. Section 38(2)(b) of the Highways Act 1959 is the equivalent provision for highways which were constructed between 1959 and 1980.

We then have section 36(2)(b):

Highways Act 1980, section 36(2)(b):

(b) a highway constructed by a council within their own area under Part II of the Housing Act 1985, other than one in respect of which the local highway authority are satisfied that it has not been properly constructed, and a highway constructed by a council outside their own area under the said Part II, being, in the latter case, a highway the liability to maintain which is, by virtue of the said Part II, vested in the council who are the local highway authority for the area in which the highway is situated;

This is something you will come across from time to time. The courts are often willing to infer that highways which are associated with housing constructed by local councils have been constructed under Housing Act powers. The point is made in the case of Gulliksen that no local authority can provide housing except under statutory authority:

Gulliksen v Pembrokeshire County Council [2002] EWCA Civ 968

“It is not necessary to delve deeply into Part V of the Housing Act 1957. Since no local authority can provide housing except under statutory authority, one can take it, in the absence of contrary evidence, that it was under the powers contained in that Part (in particular s.92) that the defendant’s predecessor authority built the Mount Estate, and that the paths were laid out and surfaced under the power contained in s. 107: “A local authority may lay out and construct public streets or roads and open spaces on land acquired or appropriated by them for the purposes of this Part of this Act…”. [para 19]

We then have the types of highway in section 36(2)(c-f):

Highways Act 1980, section 36(2)(c-f):

(c) a highway that is a trunk road or a special road; . . .

(d) a highway, being a footpath, bridleway or restricted byway created in consequence of a public path creation order or a public path diversion order or in consequence of an order made by the Minister of Transport or the Secretary of State under section 247 of the Town and Country Planning Act 1990 or by a competent authority under section 257 of that Act, or dedicated in pursuance of a public path creation agreement.

(e) a highway, being a footpath, bridleway or restricted byway, created in consequence of a rail crossing diversion order, or of an order made under section 14 or 16 of the Harbours Act 1964, or of an order made under section 1 or 3 of the Transport and Works Act 1992.

(f) a highway, being a footpath, a bridleway, a restricted byway or a way over which the public have a right of way for vehicular and all other kinds of traffic, created in consequence of a special diversion order or an SSSI diversion order.

These are quite technical and uncommonly encountered.

The possibility of a highway, which is not otherwise maintainable at public expense, being maintained at public expense

One thing which I come across occasionally is a highway which would not normally be maintainable at public expense, but which the highways authority is still maintaining.

This may be through confusion. The highways inspector may be intending to maintain a particular road and has actually ended up maintaining a different road.

This may be through generosity. The highways inspector may be maintaining a particular highway and then also keeping an eye on something adjacent.

Importantly, there is no part of the Highways Act 1980 which suggests that a highway is maintainable simply because a highways authority has been maintaining it.

Section 38 of the Highways Act 1980 refers to the power of highways authorities to adopt highways by agreement. However, this section does not fit the situation I have described. There has not been any ‘agreement’ if the highways authority has decided unilaterally to maintain a highway. The section also refers to a transfer of responsibility and it is not clear from where the responsibility would be transferred.

Highways Act 1980, section 38(1):

(1)  Subject to subsection (2) below, where any person is liable under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway, the Minister, or a strategic highways company, whichever is the highway authority, in the case of a trunk road, or a local highway authority, in any other case, may agree with that person to undertake the maintenance of that highway; and where an agreement is made under this subsection the highway 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 and the liability of that person to maintain the highway shall be extinguished.

However – there is a word of warning for Defendants. Whenever I have dealt with cases like this when acting for Claimants, the Judge has immediately taken it as read that the highway was maintainable at public expense. This is why it is really important for Defendants to be sure about which highways they are legally obliged to maintain.