Guide to Highway Law for Architects, Engineers, Surveyors and Contractors

R.A. O'Hara, Mr R A O'Hara

• Publisher: Routledge
• Year: 2002
• Print ISBN: 9780419173304
• eBook ISBN: 9781135828882
• Edition: 1
• Topic: Architecture
• Subtopic: Architecture Methods & Materials

First Published in 2004. As a consequence of so much construction work being carried out on or near highways, contractors ignore at the peril the law of highways and the influence it has, or should have, on their working methods and practices. Some knowledge of the law relating to highways is essential to anyone involved in the construction process, including the architect, engineer or surveyor advising a client as to what is possible and the contractor actually carrying out the contract works. By avoiding legal language this book aims to provide practical guidance from maintenance and improvements to activities related to construction work on or near highways.

Section 1

Introduction

At a time when so much construction work is being carried out on or near to highways, a contractor ignores at his peril the law of highways and the influence it has, or should have, on his working methods and practices; should he do so not only might he incur claims for damages from members of the general public whose rights he might infringe in his ignorance, but he may also face criminal charges laid by the local highway authority or police which may result in fines being imposed, and or the serving of injunctions (this may be either civil or criminal).

Some knowledge, understanding or awareness of the law relating to highways is essential to anyone involved in the construction process, including the architect, engineer or surveyor advising a client as to what is possible, and the contractor actually carrying out the contract works; this can be illustrated by say the influence an improvement line might have on a building design, or where access eg a carriage crossing to a property might be positioned or whether to attempt to obtain a section 38 agreement or use the advance payments code when building new roads; the contractor also would be influenced in many ways by such things as restrictions on rubbish skips parked on the highways, lorries leaving his site spreading mud on the road and heavy vehicles damaging the highway eg breaking kerb stones and paving slabs. These examples are simply elementary illustrations to help emphasise the importance of some knowledge of the law of highways. These instances relate to practical examples involving the actual building work itself but they are not the only kind of liability that arises from working on or near the highway.

The law of highways imposes on land owners adjacent to highways a strict liability regarding injuries to members of the general public resulting from work carried out on their land even if the work is carried out by independent contractors, Tarry v Ashton (1876), (1) this also helps to highlight the role of the professional when advising a client regarding a project and its possible legal implications. From such a short description of some of the difficulties which may arise it is apparent that for each and everyone involved in the construction process, from design through to the work on site a knowledge of the law relating to highways is essential if the project is going to be fulfilled satisfactorily; all professionals should be aware of the law within which they must operate, the opportunities it offers and the constraints it imposes; it is to this end that this book is directed.

Meaning of Highway

Highway law has a long history stretching back to the middle ages, and has developed mainly through the common law, and during the last century, increasingly and more importantly through legislation, to give us the law applicable in the present day; an indication of its detail, volume and complexity can be ascertained by considering that the Highways Act 1980 (the principal Act) consists of 347 sections and 25 schedules, which must make it one of the longest pieces of legislation on the statute book.

The law of highways is unique in that it grants public rights over private property so that members of the general public have a certain basic right to use a highway, the landowner retaining proprietary rights and in circumstances when that right is abused, being able to obtain a legal remedy against members of the general public.

The most commonly quoted definition is: ‘a highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects in all seasons of the year freely and at their will to pass and repass without let or hindrance…’ Ex Parte Lewis (1888) 21 (2); We must remember that the right is limited to ‘pass and repass’ and has been so for hundreds of years as can be illustrated from Goodtitle and Chester v Alker and Another (1757) (3) that’…in a highway a king hath but passage for himself and his people…’, and also that the landowner retains full ownership and control, notwithstanding the existence of a highway subject only to any applicable statutory provisions, as is shown by a second statement from the same case (Goodtitle) that the landowner’…has the right to all above and underground except only the right of passage for the king and his people…’.

A highway is not of necessity simply a roadway or carriageway but also may be a footpath, bridleway or driftway. A highway may be limited to a particular type of use Hue v Whitely (1929) (4); with limitations being placed on the use of the highway, this occurring most commonly with footpaths, bridleways and driftways. The essential characteristic of a highway is that all members of the general public have ‘the right’ to ‘pass and repass’ so that a highway cannot be dedicated to a limited section of the public such as say, the inhabitants of a particular parish, street, or locality. If a way comes under private control it is not and cannot be a highway because use would not be ‘as of right’ but only with permission of the owner, ‘on sufferance or by licence’.

Types of Highway at Common Law

There are three kinds of highway according to the limits of passage over them:

1 A cartway or carriageway is a highway over which the public has a right of way: (i) on foot, (ii) riding or accompanied by a beast of burden, (iii) with vehicles and cattle (with the possibility of the latter being excluded).

2 A bridleway is a highway over which the rights of passage are limited by excluding vehicles and sometimes the right of driftway (driving cattle), they are limited to foot traffic and the riding or leading of horses depending on limitations imposed and advertised by signposts; also it now includes the riding of bicycles, which became lawful in these circumstances following the enactment of the Countryside Act 1968 S30.

3 A footpath is a highway where the right of passage is limited to passage on foot.

Creation of Highways

The creation of a highway comes about either through the common law doctrine of dedication and acceptance or by the application of a statutory provision. In theory a public right of way may be claimed on prescription, (the vesting of a right by reason of lapse of time—originated in Roman law) ie continuous uninterrupted use for a period of 20 years Fairey v Southampton CC (1956) 2, (5); but it would be defeated on proof that the right came about after 1188 (time immemorial). As user by the public may be evidence of dedication it is not necessary nowadays to rely on common law prescription as 20 years’ established use will bring about the dedication under statute S311980 Act, ie there is an ‘implied’ dedication.

Highways, then, come into existence in one of two ways:

1. by dedication
2. by statute.

(i) By Dedication

A road or way becomes a highway when the owner of the soil either expressly or by inference from his conduct indicates that the public should have a right of passage (‘right to pass and repass’) across his land. The acceptance is acknowledged by the public using the way (referred to as ‘user by the public’ or ‘general public user’); and from the moment that a dedicated way has been accepted by the public that right ‘to pass and repass’ comes into existence and a highway is created.

Express dedication comes about when by formal deed to the local highway authority the owner of the soil grants the right and the local authority accepts; the most striking example of this being when a developer completes the construction of estate roads, under the supervision of the authority, eg a S38,1980 Act agreement, and hands them over to the local authority upon which they become highways and in these circumstances fully the responsibility of the authority for maintenance and repair.

An important point to note is that under common law the dedication of itself does not create a highway (the above example is conducted under statutory rule) but that there must be acceptance by the general public (public user) ‘as of right’.

Dedication presupposes animus dedicandi, ie an intention to dedicate; as above it may be expressed in writing or words but (outside statutory arrangements) is often, if not usually, a matter of inference brought about by regular public use, ie implied dedication. This will be so where the owner has either said things or conducted himself in such a way as to imply that he has granted the right of way to the public, A-G v Esher Linoleum Co Ltd (1901), (6); and that the dedication may be inferred from a time prior to the earliest proved user, Williams and Ellis v Cobb (1935), (7), where evidence of use prior to 1856 was admitted to establish dedication (similarity with Fairey’s case.)

To prevent the inference being drawn the landowner must in some way show he has no intention of dedicating the way; it must be done in some clear, positive manner or by legal process; it is insufficient for him to claim he has no intention to dedicate, ie that the intention not to dedicate was ‘locked away in his head’ or that he told a person, a total stranger to the locality, or turned back a stranger on an isolated occasion. Consequently notices clearly indicating a lack of intention to dedicate require to be posted eg ‘private way’, ‘Not Public Right of Way’ etc. These challenge the assumption that continuous use has existed for 20 years and defeat S311980 Act. The same effect is obtained by a landowner by giving notice to the local authority and indicating on a map deposited with it, those ways over his land which are highways and those which are not.

A landowner can show his control, ie that the right to use the way is under ‘licence or sufference’ by interfering with the way and preventing its use; for this purpose it is usually satisfactory if the way is closed one day a year Lewis v Thomas (1950) (8). (Traditionally the railway companies provided many examples of this as many ‘ways’ were on railway land over which they intended keeping control.)

Other Aspects

1 There is no public right to wander at will (‘jus spatiandi’). This could only be granted by statute. The use of an esplanade for strolling up and down or for amusement is not inconsistent with it being a highway: Sandgate UDC v Kent CC (1898, (9); Ramus v Southend Local Board (1892), (10), where the promenade became a highway. It must not though become or be a nuisance: A-G v Blackpool Corporation (1907), (ll): where motor racing was held to be illegal. (Note present day developments in Birmingham where a Local Act has granted authority for motor racing on the ring road and equally with cycle racing in city centres.)

2 Cul-de-sacs There is no rule of law which prevents a cul-de-sac from being a highway but the defining of a way as a highway usually infers ‘somewhere to go to’ and is unlikely to be inferred as such simply by public usage. However if there is something of interest to see at the end of the cul-de-sac that may be sufficient to justify creation of a public highway. Roberts v Webster (1967), (12); Moser v Ambleside UDC (1925), (13).

3 Foreshore There is no general public right of way over the foreshore, but a highway may exist along or across a particular part of it.

4 Artificial Structures A Highway may exist over embankments, sea walls and piers. Greenwich Board of Works v Maudsley (1870), (14).

5 Churchways. This is a way over which parishioners, only, have a right of way to go to and from their parish church. It is distinguished from a highway by the fact that the right is applicable to a restricted class, ie the parishioners and not members of the general public, it is impossible to create in modern times: Farquhar v Newbury UDC (1909), (15). In A-G v Mallock (1931), (16); the public have no right to enter a church at all times: dedication is not inferred.

(ii) By Statute

The Highways Act 1980, as other previous Highways Acts, has provisions whereby either the Minister or the Local Highway Authority can obtain land, either by agreement or compulsorily, to build roads which automatically, without public user, become highways maintainable at public expense. This would as a matter of course include any drainage of the highway that may be necessary Should the statute authorise merely the setting out and making of a road it fails to become a highway automatically until it is set out or substantially completed but should there be public user of incomplete roads, dedication and acceptance may be inferred: Cubitt v Lady Caroline Maxse (1873), Hals, (17).

Previously it has been alluded to that legislation has increasingly become more important in this area of law and it is consequently worth while to consider this development in some detail.

Highways Legislation

Legislation has for centuries had an influence on the law of highways, one of the earliest examples being from the Statute of Winchester 1285 whereby bushes and undergrowth had to be cleared for up to two hundred feet on either side of the highway in an attempt to make it less convenient in providing shelter for robbers (shades of modern under-passes and the problems they create!) Up to the end of the 18th century there were many different statutes applicable to highways, usually introduced to meet a particular need and only local in application, ie local byelaws; the same principle still applies in that Local Acts contain powers applicable only to that particular local government area, eg Sheffield, Manchester, Leeds, Birmingham etc. Towards the end of the 18th century many of those Acts were consolidated and amended, for example in 1766 and 1773 and remained in force until reforming legislation of the 19th century was enacted, this becoming known as the Highways Act 1835 to 1885 and remaining the main legislation in this field until the Highways Act 1959, this Act being the basis of today’s legislation. The 1959 Act was subsequently amended in 1961 and 1971, the whole being repealed and replaced by the Highways Act 1980 which came into force on the 1st January 1981 and is now the principal Act.

The Highways Act 1980

The 1980 Act is an extremely long and detailed piece of legislation consisting of 345 sections and 25 schedules dealing with all aspects of highway work much of it impinging directly on the work of the contractor which he should take into consideration when planning layouts and production programmes, for instance providing access to a site, S184, or the temporary closing of a highway to facilitate either demolition or unloading of materials (obstruction S136) or the co-ordination in a production programme of a local authority team to break open the highway and make a sewer connection, while other parts are an influence only on the periphery of the actual building process as in which code to use when ‘making up’ streets Part XI, and is more the concern of the professional adviser to the client than the contractor.

The Act provides rules and procedures governing the construction of highways from legal creation and construction specification, to the control of the behaviour of people using the highway be they building owners, contractors or members of the general public (S 168 (1)). This latter point should not be confused with the obligations imposed on the use of vehicular traffic by the Road Traffic Acts.

Administration of the Act

The Act makes provision for the creation of highway authorities and agreements between these authorities to initiate, supervise and regulate the many provisions and powers set down in the Act. The following are only some of the provisions made: the creation of trunk roads, special roads; maintenance and improvement of highways; stopping up and or diversion of highways, stopping up of access to highways; laying out and the construction of new streets, the making up of private streets; to regulate the use of builders skips (S139) on the highway and a whole range of building activity from mixing mortar to stacking materials, erecting scaffolding (S169) and hoardings (S172); other powers regulate the positioning of buildings by designating improvement lines and building lines as well as powers to order the reverse hanging of doors, and gates which open outwards over the highway (S153). There are also sections dealing with what are called ‘savings’ (S333 to S339) whereby the section(s) state clearly that the Act does not automatically authorise a particular action but exceptions can be made by the appropriate authority (S336); permission to extract materials from the foreshore obtained under the Coast Protection Act (1949) (S18, S34) or by completion of the correct procedure (as with Telegraph Act 1878 S7 or S338 ‘80 Act which shows the 1980 Act does not interfere with the Post Office’s (or British Telecom’s) rights under the Telegraph Acts 1878).

Other Acts of Parliament

Other Acts of Parliament have an influence on work in or on the highway as in the following examples:

The National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968 both have provisions relating to highways in the form of footpaths and bridleways which have little relevance to builders other than in the event of obtaining a diversion related to development....

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Glossary
• Section 1
• Section 2
• Section 3
• Section 4
• Section 5
• Section 6
• Appendix 1
• Appendix 2
• Appendix 3
• Bibliography