Highways Act 1980

then, unless an order has been made in relation to the highway under subsection (2) above, the highway shall, at the expiration of the period specified in paragraph (a) above, become for the purposes of this Act a highway maintainable at the public expense.

• (4) If the council, on being requested by the person by whom the way was dedicated or his successor to issue a certificate under subsection (3) above, refuse to issue the certificate, that person may appeal to a magistrates’ court against the refusal, and the court, if satisfied that the certificate ought to have been issued, may make an order to the effect that subsection (3) above shall apply as if the certificate had been issued on a date specified in the order.

• (5) Where a certificate has been issued by a council under subsection (3) above, or an order has been made under subsection (4) above, the certificate or a copy of the order, as the case may be, shall be deposited with the proper officer of the council and may be inspected by any person free of charge at all reasonable hours.

Power of highway authorities to adopt by agreement

38

• (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 Ministeror 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.

• (2) A local highway authority shall not have power to make an agreement under subsection (1) above with respect to a highway with respect to which they or any other highway authority have power to make an agreement under Part V or Part XII of this Act.

• (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.

• (3A) The Minister may agree with any person to undertake the maintenance of a road—

• (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 which the Minister proposes should become a trunk road; and where an agreement is made under this subsection the road shall become for the purposes of this Act a highway maintainable at the public expense on the date on which an order comes into force under section 10 directing that the road become a trunk road or, if later, the date on which the road is opened for the purposes of through traffic.

• (4) Without prejudice to the provisions of subsection (3) above and subject to the following provisions of this section, a local highway authority may, by agreement with railway, canal or tramway undertakers, undertake to maintain as part of a highway maintainable at the public expense a bridge or viaduct which carries the railway, canal or tramway of the undertakers over such a highway or which is intended to carry such a railway, canal or tramway over such a highway and is to be constructed by those undertakers or by the highway authority on their behalf.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) An agreement under this section may contain such provisions as to the dedication as a highway of any road or way to which the agreement relates, the bearing of the expenses of the construction, maintenance or improvement of any highway, road, bridge or viaduct to which the agreement relates and other relevant matters as the authority making the agreement think fit.

Adoption of certain highways in livestock rearing areas

39

Adoption of private streets

40

The foregoing provisions of this Part of this Act are without prejudice to the power or, as the case may be, the duty of the council of a county , metropolitan district or London borough, or the Common Council, to adopt private streets as highways maintainable at the public expense under Part XI of this Act.

Maintenance of highways maintainable at public expense

Duty to maintain highways maintainable at public expense

41

• (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.

• (1A) In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.

• (2) An order made by the Minister under section 10 above directing that a highway proposed to be constructed by himor a strategic highways company shall become a trunk road may, as regards—

• (a) a highway to which this subsection applies which becomes a trunk road by virtue of the order, or

• (b) a part of a highway to which this subsection applies, being a part which crosses the route of the highway to be so constructed,

contain such a direction as is specified in subsection (4) below.

• (3) Subsection (2) above applies to—

• (a) any highway maintainable at the public expense by a local highway authority, and

• (b) any highway other than a highway falling within paragraph (a) above or a highway maintainable under a special enactment or by reason of tenure, enclosure or prescription.

• (4) The direction referred to in subsection (2) above is—

• (a) in a case where the highway or part of a highway falls within subsection (3)(a) above, a direction that, notwithstanding subsection (1) above, it shall be maintained by the highway authority for that highway until such date, not being later than the date on which the new route is opened for the purposes of through traffic, as may be specified in a notice given by the Minister to that authority; and

• (b) in a case where the highway or part of a highway falls within subsection (3)(b) above, a direction that, notwithstanding subsection (1) above, the Ministeror the strategic highways company is to be under no duty to maintain it until such date as aforesaid.

• (5) Where an order under section 10 above contains a direction made in pursuance of subsections (2) to (4) above, then, until the date specified in the notice given by the Minister pursuant to the direction, in accordance with subsection (4) above, the powers of a highway authority under sections 97, 98, 270 and 301 below as respects the highway to which the direction relates are exercisable by the highway authority to whom the notice is required to be given, as well as by the Ministeror the strategic highways company .

Power of district councils to maintain certain highways

42

• (1) Subject to Part I of Schedule 7 to this Act, the council of a non-metropolitan district may undertake the maintenance of any eligible highway in the district which is a highway maintainable at the public expense.

• (2) For the purposes of subsection (1) above the following are eligible highways:—

• (a) footpaths,

• (b) bridleways,

• (ba) restricted byways, and

• (c) roads (referred to in Schedule 7 to this Act as “urban roads”) which are neither trunk roads nor classified roads and which—

• (i) are restricted roads for the purposes of section 81 of the Road Traffic Regulation Act 1984 (30 m.p.h. speed limit), or

• (ii) are subject to an order made by virtue of section 84(1)(a) of that Act imposing a speed limit not exceeding 40 m.p.h., or

• (iii) are otherwise streets in an urban area.

• (3) The county council who are the highway authority for a highway which is for the time being maintained by a non-metropolitandistrict council by virtue of this section shall reimburse to the district council any expenses incurred by them in carrying out on the highway works of maintenance necessary to secure that the duty to maintain the highway is performed, and Part II of Schedule 7 to this Act shall have effect for this purpose.

Power of parish and community councils to maintain footpaths and bridleways

43

• (1) The council of a parish or community may undertake the maintenance of any footpath , bridleway or restricted byway within the parish or community which is, in either case, a highway maintainable at the public expense; but nothing in this subsection affects the duty of any highway authority or other person to maintain any such footpath , bridleway or restricted byway.

• (2) The highway authority for any footpath , bridleway or restricted byway which a parish or community council have power to maintain under subsection (1) above, and a non-metropolitan district council for the time being maintaining any such footpath , bridleway or restricted byway by virtue of section 42 above, may undertake to defray the whole or part of any expenditure incurred by the parish or community council in maintaining the footpath , bridleway or restricted byway.

• (3) The power of a parish or community council under subsection (1) above is subject to the restrictions for the time being imposed by any enactment on their expenditure, but for the purposes of any enactment imposing such a restriction their expenditure is to be deemed not to include any expenditure falling to be defrayed by a highway authority or district council by virtue of subsection (2) above.

Person liable to maintain highway may agree to maintain publicly maintainable highway

44

Where any person is liable under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway, he may enter into an agreement with the highway authority for that highway for the maintenance by him of any highway maintainable at the public expense by the highway authority; but nothing in this section affects the duty of a highway authority to maintain a highway as respects which any such agreement is made.

Power to get materials for repair of publicly maintainable highways

45

• (1) For the purpose of repairing highways maintainable at the public expense by them, a highway authority may exercise such powers with respect to the getting of materials as are mentioned in this section.

• (2) Subject to subsection (3) below, the authority may search for, dig, get and carry away gravel, sand, stone and other materials in and from any waste or common land (including the bed of any river or brook flowing through such land).

• (3) The authority—

• (a) shall not in the exercise of their powers under subsection (2) above divert or interrupt the course of any river or brook, or dig or get materials out of any river or brook within 50 yards above or below a bridge, dam or weir;

• (b) shall not in the exercise of those powers remove such quantity of stones or other materials from any sea beach as to cause damage by inundation or increased danger of encroachment by the sea; and

• (c) shall not exercise those powers in any land forming part of a common to which section 20 of the Commons Act 1876 applies, except in accordance with that section.

• (4) Subject to subsection (5) below, the authority may gather and carry away stones lying upon any land in the non-metropolitan county, metropolitan district or London borough within which the stones are to be used.

• (5) The authority—

• (a) shall not exercise the powers conferred by subsection (4) above in a garden, yard, avenue to a house, lawn, park, paddock or inclosed plantation, or in an inclosed wood not exceeding 100 acres in extent;

• (b) shall not in the case of any other inclosed land exercise those powers unless either they have obtained the consent of the owner and of the occupier of that land, or a magistrates’ court has made an order authorising them to exercise those powers in the case of that land; and

• (c) shall not in the exercise of those powers remove such quantity of stones or other materials from any sea beach as to cause damage by inundation or increased danger of encroachment by the sea.

• (6) If the authority cannot get sufficient materials by the exercise of their powers under the foregoing provisions of this section, a magistrates’ court may make an order authorising them to search for, dig, get and carry away materials in and from any inclosed land in the non-metropolitan county, metropolitan district or London borough within which the materials are to be used, other than any such land as is mentioned in subsection (5)(a) above.

• (7) For the purpose of repairing a bridge maintainable at the public expense and so much of a highway so maintainable as is carried by the bridge or forms the approaches to the bridge up to 100 yards from each end of the bridge, the authority may take and carry away the rubbish or refuse stones from any quarry in the non-metropolitan county or metropolitan district within which the materials are to be used or, if the materials are to be used in Greater London, from any quarry in Greater London.

• (8) Subject to subsection (9) below, for the purpose of repairing or reconstructing a bridge maintainable at the public expense, the authority may be authorised by an order of a magistrates’ court to quarry stone from any quarry in the non-metropolitan county or metropolitan district in which the bridge is or, if the bridge is in Greater London, from any quarry in Greater London.

• (9) No order shall be made under subsection (8) above in relation to a quarry which has not been worked at any time during the 3 years immediately preceding the date on which a complaint for such an order is made; and no stone shall be taken from a quarry situated in a garden, yard, avenue to a house, lawn, paddock or inclosed plantation, or in land on which ornamental timber trees are growing, except with the consent of the owner of the quarry.

• (10) An authority who exercise any of the powers conferred by this section shall pay compensation to persons interested in any land for any damage done thereto by the carriage of the materials obtained by the authority and also, in cases falling within subsection (6) or subsection (8) above, for the value of those materials.

• (11) At least one month before making a complaint to a magistrates’ court for an order under subsection (5) or subsection (6) above the authority shall give notice of their intention to make such a complaint to the owner, and to the occupier, of the land from which they propose to get materials.

• (12) In relation to highways in respect of which a non-metropolitan district council’s powers of maintenance under section 42 above are exercisable, references in this section and section 46 below to a highway authority include references to the district council; and for the purposes of this section—

• “inclosed land” includes any land in the exclusive occupation of one or more persons for agricultural purposes, though not separated by a fence or otherwise from adjoining land of another person, or from a highway; and

• “London borough” includes the City of London.

Supplemental provisions with respect to the getting of materials under section 45

46

• (1) Where an excavation is made by a highway authority in the exercise of powers conferred by section 45 above, the authority shall—

• (a) while work is in progress, and thereafter so long as the excavation remains open, keep the excavation sufficiently fenced to prevent accidents to persons or animals,

• (b) if no materials are found therein, fill up the excavation within 3 days from the date on which the excavation was made,

• (c) if materials are found, then within 14 days from the date on which sufficient materials have been obtained, fill up the excavation or slope it down and fence it off, if the owner or occupier of the land in question so requires, and thereafter keep it so fenced, and

• (d) when filling up an excavation, make good and level the ground and cover it with the turf or clod dug therefrom.

• (2) An authority who fail to comply with any of the provisions of subsection (1) above are guilty of an offence and liable to a fine not exceeding level 1 on the standard scale.

• (3) If in the exercise of powers conferred by section 45 above materials are dug so as to damage or endanger a highway, occupation road, ford, dam, mine, building, works or apparatus, the authority are guilty of an offence and, without prejudice to any civil proceedings which may be available against them, liable to a fine not exceeding level 1 on the standard scale.

• (4) A person who, without the consent of the highway authority,—

• (a) takes away any materials purchased, gotten or gathered by them for the repair of highways, or

• (b) takes away any materials from a quarry or excavation opened by the authority before their workmen have ceased working thereat for 6 weeks,

is guilty of an offence and liable to a fine not exceeding level 1 on the standard scale; but in the case of a quarry or excavation in private grounds, nothing in this subsection prevents the owner or occupier from getting materials therefrom for his own private use and not for sale.

Power of magistrates' court to declare unnecessary highway to be not maintainable at public expense

47

• (1) Where a highway authority are of opinion that a highway maintainable at the public expense by them is unnecessary for public use and therefore ought not to be maintained at the public expense, they may, subject to subsections (2) to (4) below, apply to a magistrates’ court for an order declaring that the highway shall cease to be so maintained.

• (2) No application shall be made under this section for an order relating to a trunk road, special road, metropolitan road, footpath, bridleway or restricted byway.

• (3) Where a county council, as highway authority, propose to make an application under this section for an order relating to any highway in England, they shall give notice of the proposal to the council of the district in which the highway is situated, and the application shall not be made if, within 2 months from the date of service of the notice by the county council, notice is given to the county council by the district council that the district council have refused to consent to the making of the application.

• (4) If a highway authority propose to make an application under this section for an order relating to a highway situated in a parish or a community they shall give notice of the proposal—

• (a) to the council of the parish or community, or

• (b) in the case of a parish not having a separate parish council, to the chairman of the parish meeting,

and the application shall not be made if, within 2 months from the date of service of the notice by the highway authority, notice is given to the highway authority by the council of the parish or community or the chairman of the parish meeting, as the case may be, that the council or meeting have refused to consent to the making of the application.

• (5) Where an application is made to a magistrates’ court under this section, 2 or more justices of the peace acting for the petty sessions area for which the court acts shall together view the highway to which the application relates, and no further proceedings shall be taken on the application unless they are of opinion, after viewing the highway, that there was ground for making the application.

• (6) The designated officer for the justices who view a highway in accordance with the provisions of subsection (5) above shall, as soon as practicable after the view, notify the highway authority by whom an application under this section relating to the highway was made of the decision of the justices and, if the justices decide that there was ground for making the application, of the time, not being less than 6 weeks from the date of the notice, and place, at which the application is to be heard by a magistrates’ court.

• (7) A magistrates’ court shall not hear an application under this section unless it is satisfied that the highway authority making the application have—

• (a) not less than one month before the date on which the application is to be heard by the court, given notice to the owners and the occupiers of all lands adjoining the highway to which the application relates of the making of the application, and the purpose of it, and of the time and place at which the application is to be heard by the court, and

• (b) given public notice in the terms and manner required by subsection (8) below.

• (8) A highway authority making an application under this section shall publish, once at least in each of the 4 weeks immediately preceding the week in which the application is to be heard, in a local newspaper circulating in the area in which the highway to which the application relates is situated, a notice—

• (a) stating that an application has been made to a magistrates’ court under this section and the purpose of the application,

• (b) describing the highway, and

• (c) specifying the time and place at which the application is to be heard,

and shall cause a copy of the notice to be fixed, at least 14 days before the date on which the application is to be heard by the court, to the principal doors of every church and chapel in the parish or community in which the highway is situated, or in some conspicuous position near the highway.

• (9) On the hearing of an application for an order under this section, a magistrates’ court shall hear any person who objects to the order being made and may either dismiss the application or make an order declaring that the highway to which the application relates shall cease to be maintained at the public expense.

• (10) Where an order is made under this section the highway to which the order relates shall cease to be a highway maintainable at the public expense.

• (11) The highway authority on whose application an order is made under this section shall give notice of the making of the order to any public utility undertakers having apparatus under, in, upon, over, along or across the highway to which the order relates.

Power of magistrates' court to order a highway to be again maintainable at public expense

48

• (1) Subject to subsection (2) below, if it appears to a magistrates’ court that, in consequence of any change of circumstances since the time at which an order was made under section 47 above, the highway to which the order relates has again become of public use and ought to be maintained at the public expense, the court may by order direct that the highway shall again become for the purposes of this Act a highway maintainable at the public expense.

• (2) An order under this section shall not be made except on the application of a person interested in the maintenance of the highway to which the application relates, and on proof that not less than 1 month before making the application he gave notice to the highway authority for the highway of his intention to make an application under this section.

Maintenance of privately maintainable highways

Maintenance of approaches to certain privately maintainable bridges

49

Where a person is liable to maintain the approaches to a bridge by reason of the fact that he is liable to maintain the bridge by reason of tenure or prescription, his liability to maintain the approaches extends to 100 yards from each end of the bridge.

Maintenance of privately maintainable footpaths and bridleways

50

• (1) Where apart from section 41 above a person would under a special enactment or by reason of tenure, enclosure or prescription be under an obligation to maintain a footpath or bridleway, the operation of section 41(1) does not release him from the obligation.

• (2) The council of a non-metropolitan district, parish or community may undertake by virtue of this subsection the maintenance of any footpath or bridleway within the district, parish or community (other than a footpath or bridleway the maintenance of which they have power to undertake under section 42 or, as the case may be, section 43 above) whether or not any other person is under a duty to maintain the footpath or bridleway; but nothing in this subsection affects the duty of any other person to maintain any such footpath or bridleway.

• (3) The power of a district council under subsection (2) above is subject to Part I of Schedule 7 to this Act; and the power of a parish or community council under that subsection is subject to the restrictions for the time being imposed by any enactment on their expenditure.

No liability to maintain by reason of enclosure if highway fenced with consent of highway authority

51

• (1) If a person across whose land there is a highway maintainable at the public expense erects a fence between the highway and the adjoining land, and the fence is erected with the consent of the highway authority for the highway, he does not thereby become liable to maintain the highway by reason of enclosure.

• (2) Nothing in subsection (1) above is to be construed as imposing on any person a liability to maintain a highway by reason of enclosure.

Power to get materials for repair of privately maintainable highways

52

• (1) A person liable to maintain a highway by reason of tenure, enclosure or prescription has, for the purpose of repairing it, the like powers with respect to the getting of materials as are conferred on a highway authority by section 45(2) to (6) above for the purpose of repairing highways maintainable at the public expense by them.

• (2) A person on whom powers are conferred by this section is, with respect to the exercise of those powers, subject to the like duties and liabilities under section 45(10) and (11) above and under section 46(1) to (3) above as are a highway authority with respect to the exercise of the powers conferred on them by section 45.

Power of magistrates' court to extinguish liability to maintain privately maintainable highway

53

• (1) Where a person is liable by reason of tenure, enclosure or prescription to maintain a highway, a magistrates’ court may, on a complaint made either by that person or by the highway authority for the highway, make an order that the liability of that person to maintain the highway shall be extinguished, and on the extinguishment of that liability the highway, if it is not then a highway maintainable at the public expense, shall become for the purposes of this Act a highway maintainable at the public expense.

• (2) Where a complaint is made to a magistrates' court under this section by a person liable as aforesaid to maintain a highway—

• (a) the highway authority for the highway have a right to be heard by the court at the hearing of the complaint, and

• (b) the court shall not make an order on the complaint unless it is satisfied that not less than 21 days before the date on which the complaint is heard by the court the complainant gave notice to the highway authority for the highway of the making of the complaint and of the time and place at which it was to be heard by the court.

• (3) Where by virtue of an order under this section the liability of a person to maintain a highway is extinguished, that person is liable to pay to the highway authority for the highway such sum as may be agreed between him and that authority or, in default of agreement, as may be determined by arbitration to represent the value to him of the extinguishment of his liability.

• (4) A sum payable by any person under subsection (3) above shall, at his option, be paid—

• (a) as a lump sum, or

• (b) by annual payments of such amount, and continuing for such number of years, as may be agreed between him and the highway authority or, in default of agreement, as may be determined by arbitration.

• (5) Any matter which by virtue of subsection (3) or (4) above is to be determined by arbitration shall be determined by a single arbitrator appointed, in default of agreement between the parties concerned, by the Minister.

• (6) Nothing in this section affects any exemption from rating under any enactment as continued by section 117 of the General Rate Act 1967.

Extinguishment of liability to maintain privately maintainable highway diverted by order of magistrates' court

54

• (1) Where a highway which a person is liable to maintain under a special enactment or by reason of tenure, enclosure or prescription is diverted in accordance with an order made under section 116 below, then—

• (a) the substituted highway becomes for the purposes of this Act a highway maintainable at the public expense, and

• (b) the person liable as aforesaid to maintain the highway so diverted is liable to pay to the highway authority for the substituted highway such sum as may be agreed between him and that authority or, in default of agreement, as may be determined by arbitration to represent the value to him of the extinguishment of his liability.

• (2) A sum payable by any person under subsection (1) above shall, at his option, be paid—

• (a) as a lump sum, or

• (b) by annual payments of such amount, and continuing for such number of years, as may be agreed between him and the highway authority or, in default of agreement, as may be determined by arbitration.

• (3) Any matter which by virtue of subsection (1) or (2) above is to be determined by arbitration shall be determined by a single arbitrator appointed, in default of agreement between the parties concerned, by the Minister.

Extinguishment of liability to maintain or improve bridges comprised in trunk roads and special roads

55

• (1) Where a highway comprising a bridge becomes a trunk road, and the bridge is transferred to the Ministeror a strategic highways company (“the trunk road authority”) under this Act, then, if immediately before the transfer the bridge was not a highway maintainable at the public expense, any liability of the owners of the bridge for the maintenance or improvement of it or of the highway carried by it is thereupon extinguished.

• (2) Where the liability of the owners of a bridge is extinguished under subsection (1) above, the owners shall pay to the trunk road authority such sum as may be agreed between them and the authority or, in default of agreement, as may be determined by arbitration to represent the value to the owners of the extinguishment of their liability.

• (3) Any sum payable by the owners of a bridge under subsection (2) above shall, in so far as it exceeds any sum payable by the trunk road authority to the owners under this Act, be paid, at the option of the owners—

• (a) as a lump sum, or

• (b) by annual instalments of such amount, and continuing for such number of years, as may be agreed between the owners and the trunk road authority or, in default of agreement, as may be determined by arbitration, or

• (c) by perpetual annual payments of such amount as may be so agreed or determined.

• (4) The foregoing provisions of this section apply where a highway comprising a bridge is included in the route prescribed by a scheme under section 16 above authorising the provision of a special road by a local highway authority and the bridge is transferred to the special road authority, as they apply where such a highway becomes a trunk road and the bridge is transferred to thetrunk road authority ; and accordingly those provisions have effect as if the references therein to a trunk road and to the Minister , a strategic highways company or trunk road authority included references to a special road and to the special road authority.

• (5) In this section—

• “bridge” includes so much of the approaches thereto as supports or protects the surface of the trunk road or special road;

• “owners”, in relation to a bridge, means the persons who, immediately before the transfer of the bridge to the trunk road authority or the special road authority, were responsible for the maintenance of it, and includes any persons who, in pursuance of any agreement with the persons so responsible, were then discharging that responsibility on their behalf.

Enforcement of liability for maintenance

Proceedings for an order to repair highway

56

• (1) A person (“the complainant”) who alleges that a way or bridge—

• (a) is a highway maintainable at the public expense or a highway which a person is liable to maintain under a special enactment or by reason of tenure, enclosure or prescription, and

• (b) is out of repair,

may serve a notice on the highway authority or other person alleged to be liable to maintain the way or bridge (“ the respondent”) requiring the respondent to state whether he admits that the way or bridge is a highway and that he is liable to maintain it.

• (2) If, within 1 month from the date of service on him of a notice under subsection (1) above, the respondent does not serve on the complainant a notice admitting both that the way or bridge in question is a highway and that the respondent is liable to maintain it, the complainant may apply to the Crown Court for an order requiring the respondent, if the court finds that the way or bridge is a highway which the respondent is liable to maintain and is out of repair, to put it in proper repair within such reasonable period as may be specified in the order.

• (3) The complainant for an order under subsection (2) above shall give notice in writing of the application to the appropriate officer of the Crown Court and the notice shall specify—

• (a) the situation of the way or bridge to which the application relates,

• (b) the name of the respondent,

• (c) the part of the way or bridge which is alleged to be out of repair, and

• (d) the nature of the alleged disrepair;

and the complainant shall serve a copy of the notice on the respondent.

• (4) If, within 1 month from the date of service on him of a notice under subsection (1) above, the respondent serves on the complainant a notice admitting both that the way or bridge in question is a highway and that the respondent is liable to maintain it, the complainant may, within 6 months from the date of service on him of that notice, apply to a magistrates’ court for an order requiring the respondent, if the court finds that the highway is out of repair, to put it in proper repair within such reasonable period as may be specified in the order.

• (5) A court in determining under this section whether a highway is out of repair shall not be required to view the highway unless it thinks fit, and any such view may be made by any 2 or more of the members of the court.

• (6) If at the expiration of the period specified in an order made under subsection (2) or (4) above a magistrates’ court is satisfied that the highway to which the order relates has not been put in proper repair, then, unless the court thinks fit to extend the period, it shall by order authorise the complainant (if he has not the necessary power in that behalf) to carry out such works as may be necessary to put the highway in proper repair.

• (7) Any expenses which a complainant reasonably incurs in carrying out works authorised by an order under subsection (6) above are recoverable from the respondent summarily as a civil debt.

• (8) Where any expenses recoverable under subsection (7) above are recovered from the respondent, then, if the respondent would have been entitled to recover from some other person the whole or part of the expenses of repairing the highway in question if he had repaired it himself, he is entitled to recover from that other person the whole or the like part, as the case may be, of the expenses recovered from him.

• (9) Where an application is made under this section for an order requiring the respondent to put in proper repair a footpath or bridleway which, in either case, is a highway maintainable at the public expense and some other person is liable to maintain the footpath or bridleway under a special enactment or by reason of tenure, enclosure or prescription, that other person has a right to be heard by the court which hears the application, but only on the question whether the footpath or bridleway is in proper repair.

Default powers of highway authorities in respect of non-repair of privately maintainable highways

57

• (1) Where a person is liable under a special enactment or by reason of tenure, enclosure or prescription to maintain a footpath or bridleway which, in either case, is a highway maintainable at the public expense, and the highway authority for the highway repair it in the performance of their duty to maintain it, they may, subject to subsection (3) below, recover the necessary expenses of doing so from that person in any court of competent jurisdiction.

• (2) Where a person is liable as aforesaid to maintain a highway other than such a footpath or bridleway as is referred to in subsection (1) above the highway authority for the highway may, if in their opinion the highway is not in proper repair, repair it and, subject to subsection (3) below, recover the necessary expenses of doing so from that person in any court of competent jurisdiction.

• (3) The right of recovery conferred by the foregoing provisions of this section is not exercisable—

• (a) in a case where a highway authority repair a footpath or bridleway in obedience to an order of a court made under section 56 above, unless not less than 21 days before the date on which the application was heard by the court the authority gave notice to the person liable to maintain the path or way of the making of an application with respect to it and of the time and place at which the application was to be heard by the court (so however that there is no obligation to give notice to him under this paragraph if he was the person on whose application the order of the court was made);

• (b) in any other case, unless the highway authority, before repairing the highway, have given notice to the person liable to maintain it that the highway is not in proper repair, specifying a reasonable time within which he may repair it, and he has failed to repair it within that time.

• (4) Where a highway authority exercise a right of recovery from any person under the foregoing provisions of this section, then, if that person would have been entitled to recover from some other person the whole or part of the expenses of repairing the highway if he had repaired it himself, he is entitled to recover from that other person the whole or the like part, as the case may be, of the expenses recovered from him by the highway authority.

Special defence in action against a highway authority for damages for non-repair of highway

58

• (1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.

• (2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—

• (a) the character of the highway, and the traffic which was reasonably to be expected to use it;

• (b) the standard of maintenance appropriate for a highway of that character and used by such traffic;

• (c) the state of repair in which a reasonable person would have expected to find the highway;

• (d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;

• (e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;

but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.

• (3) This section binds the Crown.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recovery by highway authorities etc. of certain expenses incurred in maintaining highways

Recovery of expenses due to extraordinary traffic

59

• (1) Subject to subsection (3) below, where it appears to the highway authority for a highway maintainable at the public expense, by a certificate of their proper officer, that having regard to the average expense of maintaining the highway or other similar highways in the neighbourhood extraordinary expenses have been or will be incurred by the authority in maintaining the highway by reason of the damage caused by excessive weight passing along the highway, or other extraordinary traffic thereon, the highway authority may recover from any person (“the operator”) by or in consequence of whose order the traffic has been conducted the excess expenses.

• (2) In subsection (1) above “the excess expenses” means such expenses as may be proved to the satisfaction of the court having cognizance of the case to have been or to be likely to be incurred by the highway authority by reason of the damage arising from the extraordinary traffic; and for the purposes of that subsection the expenses incurred by a highway authority in maintaining a highway are (without prejudice to the application of this section to a by-pass provided under this Act for use in connection with a cattle-grid) to be taken to include expenses incurred by them in maintaining a cattle-grid provided for the highway under this Act.

• (3) If before traffic which may cause such damage commences the operator admits liability in respect of such traffic, then—

• (a) the operator and the highway authority may agree for the payment by the operator to the highway authority of a sum by way of a composition of such liability, or

• (b) either party may require that the sum to be so paid shall be determined by arbitration;

and where a sum has been so agreed or determined the operator is liable to pay that sum to the highway authority and is not liable to proceedings for the recovery of the excess expenses under subsection (1) above.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) Proceedings for the recovery of any sums under this section shall be commenced within 12 months from the time at which the damage has been done or, where the damage is the consequence of any particular building contract or work extending over a long period, not later than 6 months from the date of completion of the contract or work.

• (6) In the application of this section to highways for which the Minister is the highway authority the words “by a certificate of their proper officer” in subsection (1) are to be omitted.

Liability of certain persons for cost of use of alternative route where highway closed by reason of their works

60

Regulations supplementing maintenance powers of district councils

Regulations supplementing maintenance powers of district councils

61

The Minister may by regulations empower non-metropolitan district councils, in relation to highways in respect of which their powers of maintenance under sections 42 and 50 above are exercisable, to exercise subject to such terms and conditions as may be specified in the regulations such additional powers as appear to him—

• (a) to be appropriate to supplement powers of maintenance; and

• (b) to correspond to powers exercisable in relation to highways by highway authorities;

and accordingly in those sections, in Schedule 7 to this Act and in any other enactment referring to the powers of non-metropolitan district councils under those sections, the expressions “maintenance” and “maintain” where used with respect to the powers of non-metropolitan district councils under those sections, are to be construed as including the carrying out of operations in the exercise of powers conferred on non-metropolitan district councils by regulations under this section.

Part V — Improvement of Highways

General power of improvement

General power of improvement

62

• (1) The provisions of this Part of this Act have effect for the purpose of empowering or requiring highway authorities and other persons to improve highways.

• (2) Without prejudice to the powers of improvement specifically conferred on highway authorities by the following provisions of this Part of this Act, any such authority may, subject to subsection (3) below, carry out, in relation to a highway maintainable at the public expense by them, any work (including the provision of equipment) for the improvement of the highway.

• (3) Notwithstanding subsection (2) above, but without prejudice to any enactment not contained in this Part of this Act, work of any of the following descriptions shall be carried out only under the powers specifically conferred by the following provisions of this Part of this Act, and not under this section—

• (a) the division of carriageways, provision of roundabouts and variation of the relative widths of carriageways and footways;

• (b) the construction of cycle tracks;

• (c) the provision of subways, refuges, pillars, walls, barriers, rails, fences or posts for the use or protection of persons using a highway;

• (d) the construction and reconstruction of bridges and alteration of level of highways;

• (e) the planting of trees, shrubs and other vegetation and laying out of grass verges;

• (f) the provision, maintenance, alteration, improvement or other dealing with cattle-grids, by-passes, gates and other works for use in connection with cattle-grids;

• (ff) the construction, maintenance and removal of road humps;

• (fg) the construction and removal of such traffic calming works as may be specially authorised by the Secretary of State under section 90G below or prescribed by regulations made by him under section 90H below;

• (g) the execution of works for the purpose of draining a highway or of otherwise preventing surface water from flowing on to it;

• (h) the provision of barriers or other works for the purpose of affording to a highway protection against hazards of nature.

• (4) A highway authority may alter or remove any works executed by them under this section.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Relief of main carriageway of trunk road from local traffic

Relief of main carriageway of trunk road from local traffic

63

Without prejudice to section 10(3) above, the Ministeror a strategic highways company may construct as part of a trunk road a highway for the purpose of relieving a main carriageway of the trunk road from local traffic; but this section does not authorise the construction of a highway which is separated from the remainder of the trunk road by intervening land.

Dual carriageways, roundabouts and cycle tracks

Dual carriageways and roundabouts

64

• (1) Where a highway maintainable at the public expense consists of or comprises a made-up carriageway, the highway authority liable to maintain it may construct and maintain works in that carriageway—

• (a) along any length of the highway, for separating a part of the carriageway which is to be used by traffic moving in one direction from a part of the carriageway which is to be used (whether at all times or at particular times only) by traffic moving in the other direction;

• (b) at crossroads or other junctions, for regulating the movement of traffic.

• (2) The powers conferred by subsection (1) above include power, in relation to any such works as are referred to in that subsection—

• (a) to light them,

• (b) to pave, grass or otherwise cover them or any part of them,

• (c) to erect pillars, walls, rails or fences on, around or across them or any part of them, and

• (d) to plant on them trees, shrubs and other vegetation either for ornament or in the interests of safety.

• (3) A highway authority may alter or remove any works constructed by them under this section.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Cycle tracks

65

• (1) Without prejudice to section 24 above, a highway authority may, in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway, construct a cycle track as part of the highway; and they may light any cycle track constructed by them under this section.

• (2) A highway authority may alter or remove a cycle track constructed by them under this section.

Safety provisions

Footways and guard-rails etc. for publicly maintainable highways

66

• (1) It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway, a proper and sufficient footway as part of the highway in any case where they consider the provision of a footway as necessary or desirable for the safety or accommodation of pedestrians; and they may light any footway provided by them under this subsection.

• (2) A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.

• (3) A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of a footpath or bridleway, such barriers, posts, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.

• (4) The powers conferred by the foregoing provisions of this section to provide any works include power to alter or remove them.

• (5) The power conferred by subsection (3) above, and the power to alter or remove any works provided under that subsection, shall not be exercised so as to obstruct any private access to any premises or interfere with the carrying out of agricultural operations.

• (6) The powers of a highway authority under subsections (2) and (3) above may, with the consent of the Ministeror a strategic highways company, be exercised by the council of a county or metropolitan district in relation to any part within the county or metropolitan district but outside Greater London of a highway for which the Ministeror the strategic highways company is the highway authority.

• (7) The powers of a highway authority under subsections (2) and (3) above may, with the consent of the highway authority, be exercised by the council of a London borough or, as the case may require, by the Common Council in relation to any part within the borough, or the City, of a highway for which the council, or the Common Council, are not the highway authority.

• (8) A highway authority or council shall pay compensation to any person who sustains damage by reason of the execution by them of works under subsection (2) or (3) above.

Guard-rails etc. in private streets

67

• (1) Subject to the provisions of this section, in any street which is not a highway maintainable at the public expense and which consists of or comprises a carriageway a local authority may provide and maintain such pillars, rails or fences as they think necessary for the purpose of safeguarding persons using the street.

• (2) The power under subsection (1) above to provide any works includes power to alter or remove them.

• (3) Schedule 8 to this Act (consents before carrying out work in streets) applies to the powers conferred on local authorities by this section.

• (4) A local authority shall pay compensation to any person who sustains damage by reason of the execution by them of works under this section.

• (5) In this section “local authority” means any of the following, namely, the council of a district or London borough,. . . the Common Council and the Council of the Isles of Scilly but in relation to a street in Wales, means a Welsh council.

Refuges

68

• (1) A highway authority may, in relation to a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway, construct and maintain works in that carriageway for providing places of refuge for the protection of pedestrians crossing the carriageway.

• (2) Subsections (2) to (5) of section 64 above apply in relation to works mentioned in subsection (1) above as they apply in relation to works mentioned in subsection (1) of that section.

Subways

69

• (1) For the purpose of protecting from danger traffic along a highway which consists of or comprises a made-up carriageway, or of making the crossing of it less dangerous to pedestrians, the highway authority for the highway may construct, light and maintain subways under the highway for the use of pedestrians, and may alter, remove or close temporarily any such subway.

• (2) With respect to highways in Greater London, the powers of a highway authority under subsection (1) above may be exercised with that authority’s consent—

• (a) in the case of a highway for which the Ministeror a strategic highways company is the highway authority, by the council of a London borough or the Common Council, as respects any parts of the highway in that council’s area; and

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Subsection (1) above has effect in relation to a road which consists of or comprises a made-up carriageway and to which the public have access, but which is not a highway, as if it were a highway and as if the council of the district or London borough in which the road is situated were the highway authority for it or, in the case of a road situated in the City, as if the Common Council were the highway authority for it or, in the case of a road in Wales, as if the Welsh council in whose area it is situated were the highway authortiy for it.

Footbridges over highways

70

• (1) Without prejudice to any other powers of theirs to construct or reconstruct bridges, the highway authority for any highway may, for the purpose of protecting traffic along the highway from danger, or of making the crossing of it less dangerous to, or easier for, pedestrians, construct, light and maintain a bridge over the highway for the use of pedestrians, and may alter, remove or close temporarily any such bridge.

• (2) A bridge constructed under this section may form part of a bridge constructed for the use of vehicles or of a bridge providing a way from premises on one side of a highway to premises on the other or a means of access from a highway to any premises.

• (3) The supports of, and approaches to, a bridge constructed under this section may be situated—

• (a) in the highway over which the bridge is to be constructed; or

• (b) subject to subsection (4) below, in any other highway that crosses or enters the route of the first-mentioned highway.

• (4) The supports of, or approaches to, a bridge to be constructed under this section shall not be constructed in such a highway as is mentioned in subsection (3)(b) above unless the highway authority by whom the bridge is to be constructed are the highway authority for that highway or the highway authority for it have given their consent.

• (5) Where any bridge proposed to be constructed under this section by a highway authority will provide or improve an access to a highway from any street vested in some other highway authority or any other premises, the highway authority may enter into agreements with that other authority or any person having an interest in those premises—

• (a) for the making by the other party to the agreement of contributions towards the expenses to be incurred by the highway authority in constructing, lighting and maintaining the bridge;

• (b) with respect to the use of the bridge and its maintenance.

• (6) A highway authority shall pay compensation to any person who sustains damage by reason of the execution by them under this section of works in or over a highway.

Margins for horses and livestock

71

• (1) It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made-up carriageway adequate grass or other margins as part of the highway in any case where they consider the provision of margins necessary or desirable for the safety or accommodation of ridden horses and driven livestock; and a highway authority may light a margin provided by them under this section.

• (2) A highway authority may alter or remove a margin provided by them under this section.

Widths

Widening of highways

72

• (1) A highway authority may widen any highway for which they are the highway authority and may for that purpose agree with a person having power in that behalf for the dedication of adjoining land as part of a highway.

• (2) A council . . . have the like power to enter into a public path creation agreement under section 25 above, or to make a public path creation order under section 26 above, for the purpose of securing the widening of an existing footpath , bridleway or restricted byway as they have for the purpose of securing the creation of a footpath , bridleway or restricted byway, and references in those sections to the dedication or creation of a footpath , bridleway or restricted byway are to be construed accordingly.

• (3) The council of a parish or community have the like power to enter into an agreement under section 30 above for the purpose of securing the widening of an existing highway in the parish or community or an adjoining parish or community as they have for the purpose of securing the dedication of a highway, and references in that section to the dedication of a highway are to be construed accordingly.

Power to prescribe improvement line for widening street

73

• (1) Where in the opinion of a highway authority—

• (a) a street which is a highway maintainable at the public expense by them is narrow or inconvenient, or without any sufficiently regular boundary line, or

• (b) it is necessary or desirable that such a street should be widened,

the authority may prescribe in relation to either one side or both sides of the street, or at or within a distance of 15 yards from any corner of the street, a line to which the street is to be widened (in this section referred to as an “improvement line”).

• (2) Where an improvement line prescribed under this section in relation to any street is in force, then, subject to subsections (3) and (4) below, no new building shall be erected, and no permanent excavation below the level of the street shall be made, nearer to the centre line of the street than the improvement line, except with the consent of the authority who prescribed the line, and the authority may give a consent for such period and subject to such conditions as they may deem expedient.

• (3) The prohibition imposed by subsection (2) above does not affect any right of statutory undertakers to make an excavation for the purpose of laying, altering, maintaining or renewing any main, sewer, pipe, electric line, cable, duct or other work or apparatus.

• (4) Where an authority prescribe an improvement line under this section, a person aggrieved by the decision to prescribe the line or by the refusal of consent under subsection (2) above or by the period for which the consent is given or any conditions attached to it may appeal to the Crown Court.

• (5) A condition imposed in connection with the giving of a consent under subsection (2) above is binding on the successor in title to every owner, and on every lessee and every occupier, of any land to which it relates.

• (6) If a person contravenes the provisions of this section, or any condition imposed in connection with the giving of a consent under it, he is, without prejudice to any other proceedings which may be available against him, guilty of an offence and liable to a fine not exceeding level 1 on the standard scale; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding £2 for each day on which the offence is so continued.

• (7) Where in the opinion of a highway authority an improvement line prescribed by them under this section, or any part of such a line, is no longer necessary or desirable and should be revoked, they may revoke the line or that part of it.

• (8) Schedule 9 to this Act has effect in relation to the prescription of an improvement line under this section and to the revocation of such a line or any part of it.

• (9) Any person whose property is injuriously affected by the prescribing of an improvement line under this section is, subject to the following provisions thereof, entitled to recover from the authority who prescribed the line compensation for the injury sustained.

• (10) A person is not entitled to compensation on account of any building erected, contract made, or other thing done, after the date on which a plan showing the improvement line was deposited in accordance with the provisions of paragraph 5 of Schedule 9 to this Act, except as regards work done for the purpose of finishing a building the erection of which had begun before that date, or of carrying out a contract made before that date.

• (11) Nothing in this section applies to or affects, without the consent of the undertakers concerned—

• (a) any property occupied or used by railway undertakers for the purposes of a railway comprised in the railway undertaking; or

• (b) any property belonging to any of the following undertakers and used by them for the following purposes respectively, that is to say, by canal undertakers for those of a canal comprised in the canal undertaking, by inland navigation undertakers for those of a navigation comprised in the inland navigation undertaking, by dock undertakers for those of a dock comprised in the dock undertaking, or by harbour undertakers for those of a harbour comprised in the harbour undertaking; or

• (c) any land used by gas undertakers for the manufacture or storage of gas, by electricity undertakers for the generation of electricity. . . by water undertakers as a pumping station or reservoir for water or by sewerage undertakers as a pumping station or sewage disposal works.

A consent required by this subsection shall not be unreasonably withheld, and any question whether the withholding of such a consent is unreasonable shall, except where the street in question is one for which the Minister is the highway authority, be determined by the Secretary of State.

• (12) In relation to any prohibition or restriction on the use of land or buildings imposed by the Minister by the prescription of an improvement line under this section or by virtue of any condition imposed by him in connection with the giving of a consent under subsection (2) above, section 1(1)(c) of the Local Land Charges Act 1975 shall have effect as if the references to the date of the commencement of that Act were omitted.

• (13) In this section “building” includes any erection however, and with whatever material, it is constructed and any part of a building, and “new building” includes any addition to an existing building.

Power to prescribe a building line

74

• (1) Subject to the provisions of this section, a highway authority may prescribe, in relation to either one side or both sides of a highway maintainable at the public expense for which they are the highway authority, a frontage line for building (in this section referred to as a “building line”).

• (2) Where a building line prescribed under this section in relation to any highway is in force, no new building, other than a boundary wall or fence, shall be erected, and no permanent excavation below the level of the highway shall be made, nearer to the centre line of the highway than the building line, except with the consent of the authority who prescribed the line; and the authority may give a consent for such period and subject to such conditions as they deem expedient.

• (3) The prohibition imposed by subsection (2) above does not affect any right of light railway, tramway, electricity, gas water undertakers or sewerage undertakers to make an excavation for the purpose of laying, altering, maintaining or renewing any main, sewer, pipe, electric line, duct or other apparatus.

• (4) A condition imposed in connection with the giving of a consent under subsection (2) above is binding on the successor in title to every owner, and on every lessee and every occupier, of any land to which it relates.

• (5) If a person contravenes the provisions of this section, or any condition imposed in connection with the giving of a consent under it, he is, without prejudice to any other proceedings which may be available against him, guilty of an offence and liable to a fine not exceeding level 1 on the standard scale; and if the offence is continued after conviction, he is guilty of a further offence and liable to a fine not exceeding £2 for each day on which the offence is so continued.

• (6) Where in the opinion of a highway authority a building line prescribed by them under this section, or any part of such a line, is no longer necessary or desirable and should be revoked, they may revoke the line or that part of it.

• (7) Schedule 9 to this Act has effect in relation to the prescription of a building line under this section and to the revocation of such line or any part of it.

• (8) Any person whose property is injuriously affected by the prescribing of a building line under this section is entitled, subject to subsection (9) below, to recover from the authority who prescribed the line compensation for the injury sustained.

• (9) A person is not entitled to compensation under subsection (8) above—

• (a) unless he made a claim within 6 months from the date on which the building line was prescribed or, if the claimant is a person to whom a notice of the prescribing of the line was required to be given by paragraph 8 of Schedule 9 to this Act, within 6 months from the date on which such a notice was given to him; or

• (b) on account of anything done by him after the date on which a notice of the proposal to prescribe the line was served on him, except so far as it was done for the purpose of finishing a building the erection of which had begun before that date, or of carrying out a contract made before that date.

• (10) Any two or more authorities on whom powers are conferred by this section may by agreement exercise those powers jointly, and the agreement may provide for the apportionment of any expenses incurred under it.

• (11) Nothing in this section applies to or affects, without the consent of the undertakers concerned—

• (a) any land belonging to any of the following undertakers, and held by them for the following purposes respectively, that is to say, by railway undertakers for those of a railway comprised in the railway undertaking, by canal undertakers for those of a canal comprised in the canal undertaking, by inland navigation undertakers for those of a navigation comprised in the inland navigation undertaking, by dock undertakers for those of a dock comprised in the dock undertaking, or by harbour undertakers for those of a harbour comprised in the harbour undertaking; or

• (b) any land used by gas undertakers for the manufacture or storage of gas, by electricity undertakers for the generation of electricity. . . by water undertakers as a pumping station or reservoir for water or by sewerage undertakers as a pumping station or sewage disposal works.

A consent required by this subsection shall not be unreasonably withheld, and any question whether the withholding of such a consent is unreasonable shall, except where the highway in question is one for which the Minister is the highway authority, be determined by the Minister.

• (12) In relation to any prohibition or restriction on the use of land or buildings imposed by the Minister by the prescription of a building line under this section or by virtue of any condition imposed by him in connection with the giving of a consent under subsection (2) above, section 1(1)(c) of the Local Land Charges Act 1975 has effect as if the reference to the date of the commencement of that Act were omitted.

• (13) In this section—

• “building” and “new building” have the same meaning respectively as in section 73 above; and

• “light railway undertakers” means persons authorised by any enactment to carry on a light railway undertaking.

Variation of widths of carriageways and footways

75

• (1) Where a highway maintainable at the public expense comprises both a footway or footways and a carriageway, the highway authority may vary the relative widths of the carriageway and of any footway.

• (2) Where any part of a highway is carried by a bridge over a railway, canal, inland navigation, dock or harbour or forms the approaches to such a bridge, the powers conferred by this section shall not be exercised in relation to that part without the consent of the railway, canal, inland navigation, dock or harbour undertakers concerned.

• (3) A consent required by subsection (2) above shall not be unreasonably withheld, and any question whether the withholding of such consent is unreasonable shall be determined by the Minister.

Levels

Levelling of highways

76

A highway authority may execute works for levelling a highway maintainable at the public expense by them.

Alteration of levels

77

• (1) Without prejudice to section 76 above, a highway authority may raise or lower or otherwise alter, as they think fit, the level of a highway maintainable at the public expense by them.

• (2) A highway authority shall pay compensation to any person who sustains damage by reason of the execution by them of works under this section.

Comers

Cutting off of corners

78

A highway authority may execute works for cutting off the corners of a highway maintainable at the public expense by them.

Prevention of obstruction to view at corners

79

• (1) Where, in the case of a highway maintainable at the public expense, the highway authority for the highway deem it necessary for the prevention of danger arising from obstruction to the view of persons using the highway to impose restrictions with respect to any land at or near any corner or bend in the highway or any junction of the highway with a road to which the public has access, the authority may, subject to the provisions of this section, serve a notice, together with a plan showing the land to which the notice relates,—

• (a) on the owner or occupier of the land, directing him to alter any wall (other than a wall forming part of the structure of a permanent edifice), fence, hoarding, paling, tree, shrub or other vegetation on the land so as to cause it to conform with any requirements specified in the notice; or

• (b) on every owner, lessee and occupier of the land, restraining them either absolutely or subject to such conditions as may be specified in the notice from causing or permitting any building, wall, fence, hoarding, paling, tree, shrub or other vegetation to be erected or planted on the land.

• (2) A notice under subsection (1) above may at any time be withdrawn by the authority by whom it was given.

• (3) A notice restraining the erection of any building on land shall not be served by a highway authority except with the consent of the council of the non-metropolitan district in which the land is situated or if the land is situated in a London borough or the City and the highway authority concerned is ... the Minister, with the consent of the council of that London borough or the Common Council, as the case may require.

• (3A) In relation to any land in Wales—

• (a) subsection (3) above does not apply; but

• (b) if the Minister is the highway authority, he shall not serve a notice restraining the erection of any building on the land except with the consent of the Welsh council in whose area the land is situated.

• (4) A copy of a notice under subsection (1)(a) above shall be served on the owner or on the occupier of any land according as the notice was served on the occupier or on the owner of it.

• (5) A notice under subsection (1)(b) above does not prevent any owner, lessee or occupier of any land from executing or permitting the reconstruction or repair, in such manner as not to create any new obstruction to the view of persons using the adjacent highways, of any building which was on the land before the service of the notice.

• (6) A restriction imposed by a notice under subsection (1) above comes into force on the service of the notice and, while in force, is binding on the successor in title to every owner, and on every lessee and every occupier, of the land to which it relates.

• (7) A person on whom a notice has been served under subsection (1) above may, within 14 days from the date of the receipt of the notice by him, give notice to the authority by whom the notice was given objecting to any requirement specified in it, or to any restriction imposed by it, and stating reasons for his objections.

• (8) Where notice is given under subsection (7) above the question whether the notice under subsection (1) above is to be withdrawn as respects any requirement or restriction objected to shall be determined, if the parties so agree, by a single arbitrator appointed by them and, in default of agreement, shall be determined by the county court, and in determining a question under this subsection the arbitrator or court shall have power to order that the requirement or restriction objected to shall have effect subject to such modifications, if any, as the arbitrator or court may direct.

• (9) A person on whom a notice is served under subsection (1) above may, notwithstanding anything in any conveyance, or in any lease or other agreement, do all such things as may be necessary for complying with the requirements of the notice.

• (10) Subject to the provisions of this section, if a person on whom a notice is served under subsection (1) above contravenes the provisions of the notice, he is, without prejudice to any other proceedings which may be available against him, guilty of an offence and liable to a fine not exceeding level 1 on the standard scale; and if the offence is continued after conviction, he is guilty of a further offence and liable to a fine not exceeding £2 for each day on which the offence is so continued.

• (11) Any person sustaining loss in direct consequence of any requirement of a notice served under subsection (1) above, and any person who proves that his property is injuriously affected by restrictions imposed by a notice served under that subsection, is entitled, if he makes a claim within 6 months from the date of service of the notice, to recover from the authority by whom the notice was served compensation for the injury sustained.

• (12) A person on whom a notice is served under subsection (1) above is entitled to recover from the authority by whom the notice was served any expenses reasonably incurred by him in carrying out any directions contained in the notice.

• (13) If any question arises under subsection (12) above whether any expenses were reasonably incurred by any person as there provided, it shall be determined, if the parties so agree, by a single arbitrator appointed by them and, in default of agreement, shall be determined by the county court.

• (14) Any two or more authorities on whom powers are conferred by this section may by agreement exercise those powers jointly, and the agreement may provide for the apportionment of any expenses incurred under it.

• (15) Nothing in this section—

• (a) authorises the service by a local highway authority in England of a notice under this section with respect to any wall forming part of an ancient monument or other object of archaeological interest, except with the consent of the Secretary of State; or

• (aa) authorises the service by a local highway authority in Wales of a notice under this section with respect to any wall forming part of a monument of special historic interest (within the meaning of Part 2 of the Historic Environment (Wales) Act 2023) or other object of archaeological interest, except with the consent of the Welsh Ministers; or

• (b) applies with respect to a wall belonging to any of the following undertakers, that is to say, railway undertakers, canal undertakers, inland navigation undertakers, dock undertakers, or harbour undertakers, where the wall forms part of or is necessary for the maintenance of a railway comprised in the railway undertaking, a canal comprised in the canal undertaking, a navigation comprised in the inland navigation undertaking, a dock comprised in the dock undertaking, or a harbour comprised in the harbour undertaking.

• (16) In relation to any prohibition or restriction on the use of land or buildings imposed by the Minister by a notice served by him under this section, section 1(1)(c) of the Local Land Charges Act 1975 has effect as if the references to the date of the commencement of that Act were omitted.

• (17) In this section—

• “building” includes any erection however, and with whatever material, it is constructed, and any part of a building;

• “wall” includes any partition with whatever material it is constructed, and any bank.

Fences and boundaries

Power to fence highways

80

• (1) Subject to the provisions of this section, a highway authority may erect and maintain fences or posts for the purpose of preventing access to—

• (a) a highway maintainable at the public expense by them,

• (b) land on which in accordance with plans made or approved by the Minister or a strategic highways company they are for the time being constructing or intending to construct a highway shown in the plans which is to be a highway so maintainable, or

• (c) land on which in pursuance of a scheme under section 16 above, or of an order under section 14 or 18 above, they are for the time being constructing or intending to construct a highway.

• (2) A highway authority may alter or remove a fence or post erected by them under this section.

• (3) The powers conferred by this section shall not be exercised so as to—

• (a) interfere with a fence or gate required for the purpose of agriculture; or

• (b) obstruct a public right of way; or

• (c) obstruct any means of access for the construction, formation or laying out of which planning permission has been granted under Part III or, in relation to England, Part 13 of the Town and Country Planning 1990 (or under any enactment replaced by the said Part III) and, in the case of a trunk road, consent has been given under section 175B (consent of highway authority required for trunk road access) ; or

• (d) obstruct any means of access which was constructed, formed or laid out before 1st July 1948, unless it was constructed, formed or laid out in contravention of restrictions in force under section 1 or 2 of the Restriction of Ribbon Development Act 1935.

• (4) As respects—

• (a) a highway that is a trunk road, and

• (b) land on which the Minister or a strategic highways company is for the time being constructing or intending to construct a highway that is, or is to be, a trunk road, either in accordance with plans made by him or it in which the road is shown or in pursuance of a scheme under section 16 above,

the powers under this section may be exercised not only by the Minister or a strategic highways company but also, where the road or land is outside Greater London, by the council of the county or metropolitan district in which it is situated, or where the road or land is in Greater London, by ... the council of the London borough in which it is situated.

Provision of highway boundary posts

81

A highway authority may erect and maintain, in a highway for which they are the highway authority, posts or stones to mark the boundary of the highway and may alter or remove any post or stone erected by them under this section.

Cattle-grids

Provision of cattle-grids and by-passes

82

• (1) Where, whether on the representations of owners or occupiers of agricultural land or otherwise, and after such consultation with any such owners and occupiers as the highway authority consider requisite, it appears to the highway authority for a highway which consists of or comprises a carriageway expedient so to do for controlling the passage of animals along the highway, the authority may, subject to the provisions of this section and sections 83 to 90 below, provide for the highway, and maintain, a cattle-grid in the highway or partly in the highway and partly in adjoining land.

• (2) Where a highway authority provide a cattle-grid under this Act they shall also provide, either by means of a gate or other works on the highway or by means of a by-pass, or partly by one of those means and partly by the other, and maintain, facilities for the passage under proper control of animals and all other traffic that is unable to pass over the cattle-grid and is entitled by law to go along the highway.

• (3) Save as provided by subsection (4) below, the powers conferred by the foregoing provisions of this section do not include power to place any part of a cattle-grid in land not forming part of the highway and not belonging to the highway authority, or to provide a by-pass on land not belonging to the highway authority, except in so far as is authorised by any such agreement as is provided for by section 87 below.

• (4) Where after complying with the provisions of Schedule 10 to this Act the highway authority determine, as respects any common or waste land not forming part of the highway but adjoining the highway or adjacent thereto, that it is expedient so to do, the authority may place any part of a cattle-grid in, or provide a by-pass on, any of that land notwithstanding that it does not form part of the highway and does not belong to the authority.

• (5) Without prejudice to subsection (3) above, a highway authority shall not provide a by-pass along any part of a highway unless, after complying with the provisions of Schedule 10 to this Act, the authority determine that it is expedient so to do.

• (6) In this Act—

• “cattle-grid” means a device designed to prevent the passage of animals, or animals of any particular description, but to allow the passage of all or some other traffic, and includes any fence or other works necessary for securing the efficient operation of the said device; and

• “by-pass”, in relation to a cattle-grid provided for a highway, means a way, over land not comprised within the limits of the highway, for the traffic for which the by-pass is provided, with a public right of way thereover—for that traffic, orif any part of the by-pass is provided along an existing highway, for that traffic and for any other traffic entitled to use the highway before the by-pass was provided,subject in either case to the limitation that there may be placed on the way any such gate or other works as may be necessary for the proper control of all or any of such traffic and the efficient operation of the cattle-grid for use in connection with which the by-pass is provided;

and references in this Act to the provision or maintenance of a by-pass include references to the provision or maintenance of any such gate or other works.

• (7) Subject to subsection (8) below, a highway authority may alter or improve—

• (a) a cattle-grid or by-pass provided under this Act for a highway for which they are are the highway authority;

• (b) any works provided for use in connection with such a cattle-grid or provided for the purposes of such a by-pass.

• (8) A highway authority shall not carry out any alteration or improvement under subsection (7) above whereby traffic of a description which before the alteration or improvement could lawfully have gone along the highway (either by passing over the cattle-grid or by going through a gate or along a by-pass provided under subsection (2) above) will be prevented from so going along the highway.

Removal of cattle-grids and discontinuance of by-passes

83

• (1) Where it appears to a highway authority, after such consultation with such owners and such occupiers of agricultural land as the highway authority consider requisite, that a cattle-grid provided under this Act for a highway for which they are the highway authority is no longer required, the authority may remove the cattle-grid and any gate or other works on the highway which have been provided for use in connection with it, making good the site thereof.

• (2) Where a by-pass has been provided for use in connection with a cattle-grid and the highway authority remove the cattle-grid they may direct that the by-pass is to be discontinued, and where they give such a direction they may remove all or any of the works provided for the purposes of the by-pass.

• (3) If a direction under subsection (2) above so provides, then as from such date as may be specified in the direction the public right of way over the by-pass shall be extinguished.

• (4) Where a by-pass or any part of one has been provided along an existing highway, then—

• (a) notwithstanding subsection (3) above, a direction under subsection (2) above shall not extinguish any right of way which existed before the by-pass was provided;

• (b) if the cattle-grid for use in connection with which the by-pass was provided is removed, as soon as may be thereafter the highway authority shall (whether or not they direct that the by-pass is to be discontinued, but without prejudice to their power to remove works under subsection (2) above if they do so direct) remove so much of the works provided for the purpose of the by-pass as obstructs the exercise of any right of way existing before the by-pass was provided.

Maintenance of cattle-grids and by-passes

84

• (1) A cattle-grid provided under this Act for a highway, a gate or other works on a highway provided for use in connection with such a cattle-grid, and any works provided for the purposes of a by-pass provided under this Act, are maintainable by the highway authority for the highway.

• (2) A by-pass provided under this Act shall, unless and until the highway authority give a direction discontinuing the by-pass, in all cases be a highway which for the purposes of this Act is a highway maintainable at the public expense for which that authority are the highway authority.

Exercise of powers by agreement between neighbouring authorities

85

• (1) Where a highway maintainable at the public expense is intersected, joined or continued by a highway for which the highway authority are an authority other than the highway authority for the first-mentioned highway, the following provisions have effect.

• (2) The highway authority for the first mentioned highway (“the first authority”) and the other authority (“the second authority”) may enter into an agreement as to the exercise by the second authority of that authority’s powers under sections 82 and 83 above in relation to the highway for which they are the highway authority; and any such agreement may provide for the first authority to defray the whole or any part of the expenses incurred by the second authority in consequence of the agreement.

• (3) The second authority shall not unreasonably refuse to enter into an agreement under this section; and if any question arises as to the terms (including terms as to payments) to be included in such an agreement, or whether the refusal of that authority to enter into such an agreement is unreasonable, the question shall be determined by arbitration.

Supersession of gates by cattle-grids

86

• (1) Where—

• (a) any person has the right to install a gate or gates in a highway, and

• (b) a highway authority providing or proposing to provide a cattle-grid in the highway under section 82 above determine, after complying with the provisions of Schedule 10 to this Act, that the purpose for which the above-mentioned right is exercisable will be adequately achieved by the provision of the cattle-grid,

the right is not exercisable, so long as the cattle-grid is provided, except with the approval of the highway authority, and the highway authority may require that a gate or gates installed in the exercise of the right before the provision of the cattle-grid shall be removed or may themselves remove any such gate or gates.