Public Maintenance
From GPG
What Ways are Publicly Maintainable?
Basics
Before the coming into force of the Highway Act 1835, all highways were considered to be maintainable by the 'inhabitants at large in the parish'. The common law position was that the inhabitants of a parish were bound to repair the highways unless it could be shown that responsibility for repair has attached instead to an individual or corporate body (by reason of tenure, inclsoure or prescription). The 1835 Act altered the law so that it was no longer the case that any road or occupation way was repairable by the parish unless it was expressly adopted by a highway authority under the formal procedure set down in the Act. All footpaths whether created before or after the 1835 Act remained the responsibility of the inhabitants at large until December 1949 when the National Parks and Access to the Countryside Act 1949 came into effect (see below). The position as regards bridleways is unclear though Sauvain contends (Highway Law 2nd edition page 391) that since section 23 of the 1835 Act did not apply to bridleways they continued to be maintainable by the inhabitants at large.
After the 1835 Act it was possible for roads to come into existence that were not the responsibility of any person or body to repair, apart from roads such as these and highways that were privately maintainable the underlying principle remained that liability to repair remained with the inhabitants of the parish, although in practice increasingly the highway authorities carried out the actual repair work. The common law duty of the inhabitants, though increasingly rarely invoked after 1835, was not removed until the coming into force of the Highways Act 1959.
Roads
From 1835 onwards any road or occupation road coming into existence, only became publicly repairable if 'adopted' under the prescribed statutory procedure. So:
- any road in existence at 31 August 1835 is prima facie publicly repairable,unless it can be shown that some other person or body has become responsible for repair;
- any road or occupation way coming into existence post 1835 is not publicly maintainable unless adopted. Adoption can be express, i.e. by a resolution or other formal process having been completed, or implied, e.g. by virtue of public repair having been carried out openly and unchallenged over a period of years;
Footpaths and bridleways
The provisions in the 1835 Act (section 23) did not apply to footpaths and bridleways. The liability on the inhabitants of the parish to maintain footpaths and probably bridleways (see above) continued as it had before the 1835 Act. In practice, increasingly, maintenance (such as it was) was in fact carried out by the County Councils in the rural districts and by the Borough and Urban District Councils in urban districts. By the time of the report of the Special Committee on Footpaths and Access to the Countryside (Cmd. 7207 September 1947 "the Hobhouse Committee") the position had become somewhat confused and the report noted "a number of highway authorities have invoked s 23 of the Highway Act 1835 as justifying the view that highway authorities are not liable to maintain all the rights of way referred to in our terms of reference." (Para 60.) Whatever doubt there may have been about the position with regard to footpaths and bridleways was resolved by section 47 of the National Parks and Access to the Countryside Act 1949.
National Parks and Access to the Countryside Act 1949
Section 47 of the Act provided that all existing public paths (i.e. footpaths and bridleways but not roads used as public paths) including those that had arisen over private roads or occupation ways were repairable by the inhabitants at large. Section 49 of the Act also provided that section 23 of the Highway Act 1835 (i.e. the adoption provisions) was to apply to all public paths expressly dedicated after the commencement of the 1949 Act, except those which were the subject of a public path agreement.
In "Rights of Way a guide to law and practice" fourth edition section 10.2.4 (page 275) the authors contend that the difference in wording between section 47 and section 49 of the 1949 Act meant that any paths coming into existence (by long user), but not expressly dedicated, should still be considered to be maintainable by the public even if there has been no adoption under section 23 of the 1835 Act. This does not appear to have been the contemporary view of the meaning of the legislation. However, in practical terms most highway authorities take the view that all footpaths and bridleways shown on the original definitive map and statement for their area are publicly maintainable except where is can be shown that some private liability exists (in practice this rarely occurs.)
Roads used as public paths were publicly maintainable if they were pre 1835 highways, or had been adopted.
Highways Act 1959 and Highways Act 1980
Section 38 of the 1959 Act finally abolished the ancient duty of the inhabitants of the parish to repair their highways and formally transferred the maintenance responsibility to the highway authority. The Act also repealed section 23 of the 1835 Act, but replaced it with a provision (section 39) that had a similar intention of preventing the public from becoming liable for highway maintenance without the highway being adopted.
The 1959 Act was itself repealed by the Highways Act 1980. Section 36 of the 1980 Act lists the categories of highway that are publicly maintainable.
Byways open to all traffic (BOATs) and restricted byways
All restricted byways are highways maintainable at public expense by virtue of section 49(1) of the Countryside and Rights of Way Act 2000.
All BOATs that were formerly RUPPS are also now highways maintainable at public expense either because they became so on reclassification or because a previous anomaly whereby RUPPs that were subject to an abandoned review were not publicly maintainable was corrected by Schedule 5 paragraph 5 of the Countryside and Rights of Way Act 2000.
The maintenance position for any BOAT added to the definitive map and statement as a result of a modification (as opposed to a reclassification) order will depend on the particular circumstances of the maintenance liability for the individual route. If it was a pre 1835 carriageway, or had been adopted by agreement then it will be publicly maintainable as a BOAT. For routes that were previously recorded on the definitive map as a footpath or bridleway and which were subsequently 'upgraded' to BOAT by a modification order even if no liability to maintain the route as a BOAT exists the authority may be liable to maintain the route as a footpath or bridleway.
Highways Act 1980 and Town and Country Planning Act 1990
Any footpath, bridleway or restricted byway that is created by virtue of a public path creation or diversion order under the 1980 or 1990 Acts will be publicly maintainable (whether the order is made by the highway authority or district council), as will any path created by agreement under the provisions of section25 of the 1980 Act or one constructed by the highway authority. A path dedicated by agreement with a local council under the provisions of section 30 of the 1980 Act, however, is not publicly maintainable.
Cycle Tracks Act 1984
Any footpath converted to cycle track status automatically becomes a publicly maintainable highway.
Rights that arise at common law or under section 31 of the Highways Act 1980
The position in respect of a right of way that has come into being by way of presumed dedication under section31 of the Highways Act 1980 or under common law will depend on when the public's rights arose. Any path that is deemed to have been dedicated after the coming into effect of the Highways Act 1959 will not be publicly maintainable and this position was not altered by the 1980 Act. For such a path to become publicly maintainable the highway authority must adopt it. For rights that are deemed to have been dedicated prior to the 1959 Highway Act it may be necessary to seek legal advice before coming to a view on the liability of the highway authority.
Express dedication
Any competent landowner can expressly dedicate a right of way to the public and, if the public accepts the way (evidenced through user) then the right of way comes into being. But dedication, unlike creation by agreement or order, does not in itself make the consequent right of way publicly maintainable; that would require a process of adoption.
