Section 56 Process
The Section 56 process (Highways Act 1980)
Section 56 of the Highways Act 1980 provides a statutory process by which a member of the public can go to the court and obtain an order requiring a highway authority to repair a highway maintainable at the public expense. The highway authority's room for manoeuvre in this process is limited. If the highway in question is publicly maintainable — even if it is not properly recorded as such — and is out of repair, then the court will make the order the complainant seeks. The highway authority can plead lack of funds or alternative priorities, but these will buy little extra time: once the complainant has satisfied the necessary tests, the order will follow.
The courts have taken a narrow view on what constitutes an out of repair situation. Obstructions — things wilfully placed on, or done to, the highway — will not usually make a highway out of repair. An out of repair condition arises from neglect and decay, from the failure of a highway authority to keep the highway in repair. See Worcester County Council v Newman  WLR 912; Westley v Hertfordshire County Council (unreported), Byway & Bridleway 1998/10/74.
This process is in the civil jurisdiction of the courts (either the magistrates' court or the crown court, depending on the path the complainant has to follow) and the principles of open and reasonable dealings between parties in civil litigation will have a bearing on the outcome. A highway authority that denies matters that are true, and that are statutory duties, which it later admits, will put itself in a bad position, especially as regards costs. A highway authority would be ill-advised to take and maintain an unjustified negative response to a notice and complaint made under s.56.
The s.56 process explained
s.56(1) A person ('the complainant') who alleges that a way or bridge is:
- a) 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,
- b) 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.
For minor highway cases this process is only of practical application between a complainant and a highway authority, although s.56(1) can in theory be used against other persons liable to maintain highways. The complainant is not obliged to provide a map, but the notice must provide information adequate for the highway authority to identify the highway in question and locate the portion alleged to be out of repair. The notice does not need to specify how the highway is out of repair or to what standard it should be repaired. The notice must be properly served on the highway authority. Section 322(1) of HA80 states that a notice is 'duly given or served if it is given to or served on the secretary or clerk of the corporation'. Section 56(2) provides that the highway authority may serve a notice on the complainant admitting certain facts. Take care here: under the provisions of s.321(1) any such notice may be given only:
- a) by the proper officer of the council,
- b) by any officer of the council authorised by them in writing to sign documents of a particular kind or, as the case may be, the particular document.
The 'proper officer' is a formal post within an authority, usually vesting in the clerk/chief executive or a senior legal officer. Experience suggests that rights of way officers — even senior departmental managers — may not be authorised in writing (e.g. by a resolution of the council) to give a proper notice under s.321(1). The form of the highway authority's response to the complainant determines how the complaint proceeds. If, inside one month from the date of service of the original notice, the highway authority serves a counter-notice admitting:
- (i) that the highway or bridge in the notice is a publicly maintainable highway,
- (ii) that the authority is the highway authority liable to maintain it, then the matter will proceed to the magistrates' court.
However, if the highway authority fails to respond within one month, or issues a notice invalid under the provisions of s.321, or does not admit both (i) and (ii) above, the case then proceeds to the crown court.
Hearings in the magistrates' court
Once the highway authority has served its notice on the complainant admitting that the highway or bridge in the notice is a publicly maintainable highway and the authority is the highway authority liable to maintain it, the complainant has six months in which to apply to a magistrates' court for an order under s.56(4). The highway authority would be wise to enter into a dialogue with the complainant at this stage to find out whether there is the possibility of an informal agreement to make the claimed necessary repairs in a reasonable period and avoid the need to go to the court. If the highway authority does not agree that the highway is out of repair, it should tell the complainant so.
If the complainant commences an action in the magistrates' court, this will be by summons, and the first date given will be for a pre-trial review of the issues involved. Highway authorities should be mindful that any complainant prepared to bring a case to court is at this point exposed to the risk of costs against, and is therefore likely to be reasonably confident of a successful outcome to the complaint and/or determined to proceed. The pre-trial review may be before a senior clerk or a bench of magistrates or a district judge. Directions will be given as to a future date for either a further review or the full hearing. The parties must exchange skeleton arguments, case authorities and witness statements in advance of the case coming to court.
If a complaint under s.56 comes to a hearing before the magistrates (who should be screened by the clerk to avoid council affiliations) or a district judge, then the court is competent to consider only three matters:
- Is the highway out of repair?
- If it is, what time period should be allowed for the highway authority to make the necessary repairs?
- The costs of the successful party.
Whether or not the highway is out of repair is a question of fact for the court to determine (s.56(4)), although where the highway authority has admitted that the highway is out of repair it might be perverse for the court to hold otherwise. If the highway authority argues that the highway is not out of repair, it is up to the complainant to bring evidence — e.g. photographs, expert witnesses, user witnesses — and to make submissions on the legal issues involved. The highway authority may cross-examine and bring its own witnesses.
If the court holds that the highway is not out of repair, the complaint is dismissed and, in the normal way of things, the complainant will be ordered to pay the highway authority's costs. If the court finds that the highway is out of repair, then the complainant succeeds and will, in the normal way of things, be awarded costs against the highway authority. The court must then make an order directing that the highway be put into repair in a 'reasonable period' (see below), but will not usually direct the precise way in which a highway should be put in repair; for example it is not usual for the court to order a particular surface material. The method of effecting the repairs is generally a matter for the highway authority, but a crown court judge has recently directed that an 'ordinary road' be repaired with either tarmacadam or concrete (see Seymour v East Riding of Yorkshire, below).
It has been argued in court by a highway authority that the language of s.56 indicates that the court has a discretion, even if it finds that the highway is out of repair, whether or not to make an order. This is not so. The disposal of complaints by a magistrates' court is covered by s.53(2) of the Magistrates' Court Act 1980 which states: 'The court, after hearing the evidence and the parties, shall make the order for which the complaint is made or dismiss the complaint.' If the facts of the complaint are found proven, then the magistrates must make the order sought.
Hearings in the crown court
A complaint under s.56 goes to the crown court where:
- a) the highway authority fails to respond to the original notice inside one month,
- b) the highway authority denies that the highway in the notice is a publicly repairable highway,
- c) the highway authority denies that it is the authority liable to repair the way in the notice.
Case (b) above is the most likely. A highway authority will tend to respond to a s.56 notice on the basis of what is recorded in the definitive map and list of streets. If the route in question is not in either, then the authority will naturally respond in the negative. Take care here. If a complainant is prepared to take the risk of going to the crown court on a route that is not currently recorded as publicly maintainable, then the highway authority should assume that the complainant has built a case on firm evidence and proceed accordingly. Some complainants may use the s.56 process as a way to get the highway authority to agree that a non-recorded highway is a publicly maintainable highway, rather than with the ultimate purpose of getting repairs done. The highway authority should keep this in mind: conceding status (if the evidence justifies) may satisfy the complainant and keep the matter from going to court.
If the complainant is intending to adduce evidence in court to prove that the route in the notice is a publicly maintainable highway, even though this is not recorded by, or admitted by, the highway authority, then the complainant should be open with the highway authority as to all the evidence. Not only should the complainant provide the respondent highway authority with his evidence and skeleton argument well in advance of the hearing, but the highway authority should ask him for it at an early stage. The authority can then decide whether to concede or contest, remembering that a complainant prepared to take the risk of arguing unrecorded status to a crown court has probably built a case in advance.
In case (a) above, where the highway authority fails to respond within one month and the complainant proceeds to the crown court, the authority must review its position. If the authority intends to argue that the route is not a publicly repairable highway for which it is the highway authority, then nonservice of the notice is of little material effect. If the route is a publicly maintainable highway that the highway authority is liable to maintain, i.e. a case that should in the normal way have gone to the magistrates, then the authority has a choice. It can either contest the case on the grounds that the road is not out of repair, or it can concede and agree the terms of an order to be made by the crown court. Once the one-month period for service of the notice under s.56(2) has expired, the highway authority cannot steer the case to the magistrates instead of the crown court by a late admission.
Disputed liability to maintain
If the route specified in the complainant's s.56 notice is not in the list of streets or the definitive map, the highway authority is likely not to admit that the route is maintainable at public expense, and that it is the highway authority liability to maintain. The complainant must then be prepared to prove these matters in the crown court. Such proof essentially comes down to showing that the route was a highway before 31 August 1835 or (less likely) has been adopted by a highway authority since.
The complainant can use witness testimony (modern user evidence) to prove the status but this may not be helpful to show maintenance liability, unless witnesses recall that the highway authority has maintained the route. If the complainant can show that the route was a highway (other than a public footpath) prior to 1835 it will be presumptively maintainable at public expense; there will be no need to show that the route was actually maintained by a highway authority. Such evidence will come from historical documentary sources. So the question the crown court and the highway authority must address is: on the balance of probabilities, does the evidence show that the route specified in the s.56 notice was a highway on 31 August 1835? For a public footpath unless there is documentary evidence that the highway was maintainable at public expense, then it will be necessary for the complainant to show that the route was a public footpath prior to 1949, in which case it will be highway maintainable at public expense. If the crown court holds the evidence sufficient, then the complainant gets his order. If not, the complaint is dismissed. A highway authority facing such a case must assess the evidence (and look for counter-balancing evidence of its own) and decide whether to concede or fight. The skills of definitive map staff in weighing documentary evidence are valuable here.
The standard of repair
Burgess v Northwich Local Board (1880) QBD 264: Lindley J. held that the duty to repair a road means the duty to keep the road in such a state as to be safe and fit for ordinary traffic.
A.G. v Benyon (1969) 2 AER 273: The public is entitled to enjoy the full width of a highway. The width is a matter of evidence, but where there is a made-up carriageway then prima facie the full width that is made-up is highway.
R v High Halden (1859) 1FF 678: Blackburn J. said that the road must be kept in such repair as to be reasonably passable for the ordinary traffic of the neighbourhood at all times of the year. This view has been regularly upheld since.
A.G. v Scott (1904) 1 KB 404 (1905) 2 KB 160: The level of repair changes as the ordinary traffic changes. A highway authority cannot refuse to repair a road necessary for motor traffic on the grounds that it was dedicated and originally made in the days of horsedrawn traffic.
R v Claxby (Inhabitants) (1855) 24 LJQB 223: In general, the level of repair must follow the character of the traffic using, or wanting to use, a road, but a lessening of the frequency of use of a road is not a reason to lower the standard of repair.
Worcester County Council v Newman (CA) (1975) WLR 912: Approves a pleading in Archbold (1862) describing a highway 'was and yet is very ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same.'
R v Inhabitants of Healaugh, The Times 18 April 1863, p3: A public footpath close to a river was foundrous. Baron Martin: '... the way ought to be put into such a state of repair as that persons might walk along dry shod ...'
Barnes v Metropolitan Borough Council of Bury (1990) Case No. A90 2375: In Bolton crown court, an application under s.56 where the highway authority did not admit repair liability. On finding that the road is publicly repairable and out of repair: 'We do not consider that the situation and nature of Hawkshaw Lane require it to be maintained to the same standard as an urban street. That would be inappropriate and incongruous. We consider and order that it be:
- adequately drained, and
- surfaced — not necessarily with a tarmacadam surface but with something that is reasonably suitable for a country lane...'.
What would be a reasonable time period to state in an order to repair?
Plainly the Justices cannot be 'Wednesbury unreasonable' in stating a time period. There are some examples available that may assist the court. This list is typical: there are no known examples that lie outside the shortest and longest periods specified.
Barnes v Metropolitan Borough Council of Bury (1990) Case No. A90 2375: In the crown court: 'Bearing in mind the financial constraints that we recognize the authority are under we are prepared to allow them some time in which to effect the repairs. We therefore order that this work be completed by September 30 1992.' This hearing above was in February 1991. The council stated that it would be difficult therefore to include the work in the schedules for 1991/2. This gave the highway authority between 19 and 20 months to do the work.
Sorensen v Cheshire County Council, 9 November 1979: Judge David QC, in Knutsford crown court, allowed 24 months for completion of the work; the roads were ancient stone carriageways then badly out of repair. The order of the court was that the out of repair section should be repaired at least to the same width as the good parts. The highway authority contended in the early stages that the road was not out of repair.
Riggall v Hereford County Council, 24 November 1970: In this action brought by a landowner resident near one end of a long rough stone lane, a complaint was laid under the 1959 forerunner of s.56. On 8 December 1979 Hereford justices ordered the road repaired by 1 December 1980 — 12 months. Interestingly the highway authority put a tarmac surface on this road consequent on the order.
Seymour v British Waterways (1983): Leeds crown court ordered that a new bridge be constructed over a canal within nine months and, in the meanwhile, a temporary bridge be erected at that point to accommodate users.
Kind v Cumbria County Council, November 1998: Judge Phillips in Carlisle crown court gave Cumbria County Council 18 months to repair an old stone turnpike that was seriously waterlogged.
Kind v North Yorkshire County Council, June 2000: Harrogate magistrates gave North Yorkshire County Council 27 months to repair a very badly eroded and waterlogged stone unclassified road at Pockstones Moor, near Pateley Bridge.
Seymour v East Riding of Yorkshire Council, June 2000: Hull crown court ordered the repair, with tarmacadam or concrete, of a section of carriageway, inside six months.
For various articles and case examples, see the Byways and Bridleways Trust Rights of Way Reports and Materials Database.