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Highways Act 1980

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Highways Act 1980

1980 CHAPTER 66

An Act to consolidate the Highways Acts 1959 to 1971 and related enactments, with amendments to give effect to recommendations of the Law Commission.

[13th November 1980]

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Modifications etc. (not altering text)

C1Act: definition of "carriageway" applied (1.1.1963) by Pipelines Act 1962 (c. 58, SIF 102), ss. 15(10), 70(3); S.I. 1963/2790, art. 1

Act: definitions ("highway authority", "local highway authority", "special road", "special road authority" and "traffic") applied (1.11.1991) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 26(1)(with ss. 25(2), 167(2)); S.I. 1991/2288, art. 3, Sch.

Act: definitions ("highway" and "highway authority") applied (1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), ss. 219(1), 223(2) (with ss. 82(3), 186(1), 222(1), Sch. 13 para. 1, Sch. 14 para. 6)

Act: definitions ("bridleway" and "footpath") applied (1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), ss. 167, 223(2), Sch. 11 para. 10 (with ss. 82(3), 186(1), 222(1), Sch. 13 para. 1, Sch. 14 para. 6)

Act: definitions applied (1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), ss. 183, 223(2), Sch. 13 para. 3(1) (with ss. 82(3), 186(1), 222(1), Sch. 13 para. 1, Sch. 14 para. 6)

Act: definition of "highway" applied (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 221(1), 225(2) (with ss. 16(6), 179, 222(3), 224(1), 225(4), Sch. 22 para. 1)

Act: definitions ("bridleway" and "footpath") applied (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 168, 225(2), Sch. 19 para. 10 (with ss. 16(6), 179, 222(3), 224(1), 225(4), Sch. 22 para. 1)

Act: definitions applied (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 178, 225(2), Sch. 22 para. 3(1) (with ss. 16(6), 179, 222(3), 224(1), 225(4), Sch. 22 para. 1)

Act: definitions ("highway authority" and "local highway authority") applied (14.7.1992) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 86(1) (with s. 167(4)(5)); S.I. 1992/1686, art. 3, Sch.

Act: definitions ("carriageway" and "footway") applied (14.7.1992) by New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 105(1) (with s. 167(4)(5)); S.I. 1992/1686, art. 3, Sch.

C2Act: functions of Minister of Transport (except those exercisable jointly with Secretary of State under ss. 258, 300(2), Sch. 1 paras. 7, 8, 14, 15, 18, 19, 21) now exercisable by Secretary of State by S.I. 1981/238, arts. 2(2), 3(2)(3)

Act: certain functions made exercisable as specified (25.7.1995) by S.I. 1995/1986, art. 2, Sch. 1 (which affecting provisions were revoked (24.3.2009) by S.I. 2009/721, art. 4(1)(2) (subject to art. 4(3)(4))

Act: powers transferred (1.7.1999) (subject to the specified exceptions in the amending S.I.) by S.I. 1999/672, art. 2, Sch.

C10Act: certain functions made exercisable as specified (24.3.2009) by The Contracting Out (Highway Functions) Order 2009 (S.I. 2009/721), art. 3, Sch. 1

C11Act: power to amend conferred (1.10.2010) by Flood and Water Management Act 2010 (c. 29), ss. 28, 49(3) (with s. 49(1)(6)); S.I. 2010/2169, art. 4, Sch.

Commencement Information

I1Act not in force at Royal Assent, see s. 345(2); Act wholly in force at 1.1.1981

Part IE+W+S+N.I. Highway Authorities and Agreements Between Authorities

Highway authoritiesE+W+S+N.I.

1 Highway authorities: general provision.E+W

(1)The Minister is the highway authority for—

(a)any highway which is a trunk road;

[F1(aa)any special road provided by him;]

(b)any highway as respects which an order made by him under any enactment expressly provides that he is to be the highway authority for it but does not direct that the highway is to be a trunk road;

(c)any highway (not falling within paragraph (a) above) transferred to him by an order under section 14 or 18 below;

(d)any other highway being a highway constructed by him, except where by virtue of section 2, 4(3) or 5(2) below or by virtue of some other enactment a local highway authority are the highway authority for it or where by means of an order made under section 14 or 18 below the highway is transferred to a local highway authority.

(2)Outside Greater London the council of a county [F2or metropolitan district] are the highway authority for all highways in the county [F2or, as the case may be, the district], whether or not maintainable at the public expense, which are not highways for which under subsection (1) above the Minister is the highway authority.

[F3(2A)Transport for London is the highway authority for all GLA roads.]

(3)[F4The council] of a London borough or the Common Council are the highway authority for all highways in the borough or, as the case may be, in the City, whether or not maintainable at the public expense, which are not [F5for the time being GLA roads or]. . . F6 highways for which under subsection (1) above the Minister is the highway authority.

[F7(3A)In Wales the council of a county or county borough are the highway authority for all highways in the county or, as the case may be, the county borough, whether or not maintainable at the public expense, which are not highways for which the Minister is the highway authority under subsection (1) above.]

(4)Subsection (2) above is subject, as respects any highway outside Greater London for which the Minister is not the highway authority under subsection (1) above, to any provision of this Act, or of any order made under this or any other Act, by virtue of which a council other than the council of the county [F8or, as the case may be, the metropolitan district] in which the highway is situated are the highway authority therefor.

[F9(5)Subsection (3A) above is subject to any provision of this Act, or of any order made under this or any other Act, by virtue of which a council other than the Welsh council for the area in which the highway is situated are the highway authority.]

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Amendments (Textual)

F3S. 1(2A) inserted (3.7.2000) by 1999 c. 29, s. 259(2), (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(2)(c), Sch. Pt. 3

F7S. 1(3A) inserted (3.4.1995 for limited purposes, as mentioned in S.I. 1995/852 and 1.4.1996 otherwise, as mentioned in S.I. 1996/396) by 1994 c. 19, s. 22(1), Sch. 7 Pt. I para. 1(2) (with s. 54(7), Sch. 17 paras. 22(1), 23(2)); S.I. 1995/852, art. 4(1)(5), Sch. 2 (with saving in art. 4(6)); S.I. 1996/396, art. 3, Sch. 1.

F9S. 1(5) added (3.4.1995 for limited purposes, as mentioned in S.I. 1995/852 and 1.4.1996 otherwise, as mentioned in S.I. 1996/396) by 1994 c. 19, s. 22(1), Sch. 7 Pt. I para. 1(3) (with s. 54(7), Sch. 17 paras. 22(1), 23(2)); S.I. 1995/852, art. 4(1)(5), Sch. 2 (with saving in art. 4(6)); S.I. 1996/396, art. 3, Sch. 1.

2 Highway authority for road which ceases to be a trunk road.E+W

[F10(1)]Where an order made under section 10 below directs that a trunk road shall cease to be a trunk road, then, as from the date specified in that behalf in the order, the following authority, that is to say—

(a)where the road is situated outside Greater London, the council of the county [F11or metropolitan district], and

[F12(b)where the road is situated in Greater London, Transport for London,]

shall become the highway authority for the road.

[F10(2)In the case of a special road provided by the Minister, subsection (1) above has effect subject to any provision of the order directing that the Minister shall continue to be the highway authority for the road.]

[F13(3)Where Transport for London becomes the highway authority for a road by virtue of subsection (1) above, the road shall become a GLA road.]

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Amendments (Textual)

F13S. 2(3) added (3.7.2000) by 1999 c. 29, ss. 259(5), (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(2)(c), Sch. Pt. 3

3 Highway authority for approaches to and parts of certain bridges.E+W+S+N.I.

(1)Where a bridge carries a highway for which the Minister is not the highway authority and part of the bridge is situated in one county and part in another the highway authority for the highway carried by the bridge and the approaches thereto is such one of the councils of those counties as may be agreed between them before such a day as the Minister may by order made by statutory instrument appoint or, in default of such agreement, as may be determined by the Minister.

(2)Where the Minister has made a determination under subsection (1) above the determination—

(a)may be varied at the request of the council of either of the counties concerned; and

(b)shall be varied to give effect to any request made jointly to the Minister by those councils;

and any such variation shall take effect on the 1st April falling not less than 3 months, and not more than 15 months, after the date on which the determination is varied.

(3)Where a bridge carries a highway for which the Minister is not the highway authority and subsection (1) above does not apply, but some part of one or more of the approaches to the bridge lies in a county different from the bridge itself, the highway authority for the whole of that approach or those approaches is the council of the county in which the bridge is situated.

(4)For the purposes of this section, the approaches to a bridge consist of so much of the highway or highways on either side of the bridge as is situated within 100 yards of either end of the bridge.

Agreements between authoritiesE+W+S+N.I.

4 Agreement for exercise by Minister of certain functions of local highway authority as respects highway affected by construction, etc. of trunk road.E+W+S+N.I.

(1)The Minister and a local highway authority may enter into an agreement for providing, in relation to a highway specified in the agreement, being a highway that crosses or enters the route of a trunk road or is or will be otherwise affected by the construction or improvement of a trunk road, that any functions specified in the agreement, being functions of improvement exercisable as respects that highway by the local highway authority, shall be exercisable by the Minister on such terms and subject to such conditions (if any) as may be so specified.

(2)Where under an agreement made under this section any function of a local highway authority is exercisable by the Minister, then, for the purpose of exercising that function the Minister shall have the same powers under this Act (including highway land acquisition powers) as the local highway authority have for that purpose, and in exercising that function and those powers he shall have the like rights and be subject to the like liabilities as that authority.

(3)Where for purposes connected with any function exercisable by him under an agreement made under this section the Minister proposes to construct a new highway, every council (other than the council of a [F14non-metropolitan] district) in whose area the proposed highway is situated shall be a party to the agreement and the agreement shall provide for a local highway authority specified in the agreement to become the highway authority for the highway on its completion.

(4)An agreement under this section made between the Minister and any other highway authority may provide for the payment of contributions—

(a)by the Minister to that other authority in respect of any additional liabilities imposed on that other authority in consequence of the provisions of the agreement;

(b)to the Minister by that other authority in respect of liabilities so imposed on the Minister, being liabilities which would otherwise have fallen to be discharged by that other authority;

and may also provide for the determination by arbitration of disputes as to the payment of such contributions.

(5)Any local highway authority who are a party to an agreement made under this section may contribute towards any expenses incurred by the Minister in executing any works to which the agreement relates.

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Amendments (Textual)

5 Agreement for local highway authority to maintain and improve certain highways constructed or to be constructed by Minister.E+W+S+N.I.

(1)The local highway authority may by agreement with the Minister undertake the maintenance and improvement of a highway in their area, being a highway (other than a trunk road) which the Minister proposes to construct or has, whether before or after the commencement of this Act, constructed.

(2)Where an agreement is made under this section the council who are a party to the agreement shall, on such date as may be provided by the agreement, become the highway authority for the highway to which the agreement relates.

6 Delegation etc. of functions with respect to trunk roads.E+W

(1)The Minister may by agreement with a county council, [F15a metropolitan district council], or a London borough council delegate to that council all or any of his functions (including functions under a local or private Act) with respect to the maintenance and improvement of, and other dealing with, any trunk road or any land which does not form part of a trunk road but which has been acquired by him in connection with a trunk road under section 239(2) or (4) or section 246 below;. . . F16

[F17(1A)The Minister shall not delegate functions to a council under subsection (1) above—

(a)with respect to a trunk road or land outside their area but within a non-metropolitan county or London borough, except with the consent of the council of that county or borough;

(b)with respect to a trunk road or land outside their area but within a metropolitan district except after consultation with the council of that district.]

[F18(1B)The Minister shall not delegate functions to a council under subsection (1) above with respect to a trunk road or land outside their area but in Wales except after consultation with the Welsh council in whose area it is situated; and subsection (1A) does not apply in relation to a trunk road or land in Wales.]

(2)A council shall, in the exercise of any functions delegated to them under subsection (1) above, act as agents for the Minister and in accordance with such conditions as he may attach to the delegation, and among such conditions there shall be included the following—

(a)that the works to be executed and the expenditure to be incurred by the council in the discharge of the delegated functions shall be subject to the approval of the Minister;

(b)that the council shall comply with any requirement of the Minister as to the manner in which any such works are to be carried out, and with any directions of the Minister as to the terms of contracts to be entered into for the purposes of the discharge of the delegated functions; and

(c)that any such works shall be completed to the satisfaction of the Minister.

(3)If at any time the Minister is satisfied that a trunk road or land with respect to which functions are delegated under subsection (1) above is not in proper repair and condition, he may give notice to the council requiring them to place it in proper repair and condition within such time as may be specified in the notice, and if the notice is not complied with the Minister may do anything that seems to him necessary to place the road or land in proper repair and condition.

(4)A delegation to a council under subsection (1) above may be determined by notice given by the Minister to the council during the first 9 months of any calendar year, or the functions so delegated may be relinquished by a notice given by the council to the Minister during any such period; and the notice shall take effect as from 1st April in the calendar year following that in which it is given.

(5)The Minister may enter into an agreement with a county council, [F19a metropolitan district council] or a London borough council—

(a)for the construction of a trunk road, or

(b)for the carrying out by them of any work of improvement of, or other dealing with, any trunk road or any such land as is mentioned in subsection (1) above;

and subsection (2) above applies to the discharge of the functions of a council under any such agreement and to the conditions to be included in any such agreement as it applies to the discharge of functions delegated under subsection (1) above to any such council and to the conditions to be attached to any such delegation.

(6)Where—

(a)any functions have been delegated by the Minister to a county council under subsection (1) above, or

(b)the Minister has entered into an agreement with a county council under subsection (5) above,

the county council [F20(the “responsible council”)] may, with the consent of the Minister, enter into arrangements with a district council [F21or Welsh council (the “contracting council”)] for the carrying out by the [F22contracting]council, in accordance with the arrangements, of such of the delegated functions or, as the case may be, of the functions to which the agreement relates as may be specified in the arrangements;. . . F23

[F24(6A)No arrangements shall be entered into under subsection (6) above for the carrying out by a [F25contracting council] of any functions—

(a)with respect to a trunk road or land outside their area but within a non-metropolitan district, except with the consent of the council of the non-metropolitan district;

(b)with respect to a trunk road or land outside their area but within a metropolitan district, except after consultation with the council of the metropolitan district.]

[F26(c)with respect to a trunk road or land in Wales but outside the area—

(i)of the responsible council; and

(ii)of the contracting council,

except after consultation with the Welsh council in whose area the trunk road or land is situated.]

(7)Plant or materials belonging to a council by whom functions fall to be exercised by virtue of a delegation, or agreement or arrangements under this section may be used by them for the purposes of those functions subject to the terms of the delegation, or agreement or arrangements.

(8)Nothing in this section limits the power of the Minister to enter into and carry into effect agreements with any person for any purpose connected with the construction, improvement or maintenance of, or other dealing with, a trunk road or otherwise connected with his functions relating to trunk roads under this or any other Act; but no such agreement shall provide for the delegation of powers or duties of the Minister except in accordance [F27with

(a)the provisions of this section; or

(b)the provisions of any order made under section 69 of the Deregulation and Contracting Out Act 1994.]

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Amendments (Textual)

F20Words in s. 6(6) inserted (1.4.1996) by 1994 c. 19, s. 22(1), Sch. 7 Pt. I para. (3)(a) (with s. 54(7), Sch. 17 paras. 22(1), 23(2)); S.I. 1996/396, art. 3, Sch.1.

F27Words in s. 6(8) substituted (25.7.1995) by S.I. 1995/1986, art. 3.

Modifications etc. (not altering text)

C13S. 6 restricted (13.2.1992) by Severn Bridges Act 1992 (c. 3), s. 15(6)

7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F28E+W+S+N.I.

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Amendments (Textual)

8Agreements between local highway authorities for doing of certain works.E+W

(1)Subject to the provisions of this section, local highway authorities may enter into agreements with each other for or in relation to the construction, reconstruction, alteration, improvement or maintenance of a highway for which any party to the agreement are the highway authority.

(2)An agreement under this section may provide, in relation to a highway specified in the agreement, being a highway for which one of the parties to the agreement are the highway authority, that any functions specified in the agreement, being functions exercisable as respects that highway by the highway authority therefor, shall be exercisable by some other party to the agreement on such terms and subject to such conditions (if any) as may be so specified.

(3)Where under an agreement made under this section any function of the highway authority for a highway is exercisable by another highway authority, then, for the purpose of exercising that function that other highway authority shall have the same powers under this Act (including highway land acquisition powers) as the highway authority for the highway have for that purpose, and in exercising that function and those powers they shall have the like rights and be subject to the like liabilities as that authority.

(4)The council of a county [F29(other than one in Wales)] may not enter into an agreement under this section with the council of another county [F30or county borough] unless [F31their areas] adjoin each other [F32; and the council of a metropolitan district may not enter into an agreement under this section with the council of another metropolitan district or of a county [F33or county borough] unless the districts are in the same county or in counties which adjoin each other or, as the case may be, the county in which the district is situated and the other county [F34or, as the case may be, county borough] adjoin each other.].

(5)Expenses incurred in pursuance of an agreement made under this section shall be borne for the parties to the agreement in such proportions as may be determined by the agreement.

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Amendments (Textual)

Modifications etc. (not altering text)

9 Seconding of staff etc.E+W+S+N.I.

(1)A council may enter into an agreement with the Minister for placing at his disposal for the purposes of his functions relating to highways, on such terms as may be provided by the agreement, the services of persons employed by the council and any premises, equipment and other facilities under the control of the council.

(2)For superannuation purposes service rendered by a person whose services are placed at the disposal of the Minister in pursuance of this section is service rendered to the council by whom that person is employed.

Part IIE+W+S+N.I. Trunk Roads, Classified Roads, Metropolitan Roads, Special Roads

Trunk roadsE+W+S+N.I.

10 General provision as to trunk roads.E+W

(1)Subject to the provisions of this section, all such highways and proposed highways as immediately before the commencement of this Act were trunk roads within the meaning of the M1Highways Act 1959 continue to be, and to be known as, trunk roads.

(2)The Minister shall keep under review the national system of routes for through traffic in England and Wales, and if he is satisfied after taking into consideration the requirements of local and national planning, including the requirements of agriculture, that it is expedient for the purpose of extending, improving or reorganising that system either—

(a)that any highway

[F35or any proposed highway—

(i)to be constructed by the Minister, or

(ii)in relation to which the Minister has entered or proposes to enter into an agreement under section 38(3A),]

should become a trunk road, or

(b)that any trunk road should cease to be a trunk road,

he may by order direct that that highway or proposed highway shall become, or, as the case may be, that that road shall cease to be, a trunk road as from such date as may be specified in that behalf in the order.

[F36(2A)Subsection (2) is subject to section 33(4) of the Planning Act 2008 (exclusion of powers to make or confirm orders in relation to highways for which development consent required).]

(3)The power of the Minister under this section to direct that a highway or proposed highway shall become a trunk road shall include power to direct that a highway or proposed highway which he considers suitable for the purpose of relieving a main carriageway of the trunk road from local traffic shall become part of the trunk road, whether or not the highway or proposed highway is separated from the remainder of the road by intervening land.

(4)F37. . .

(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

the power under this section to direct that a [F38proposed highway] shall become a trunk road may be exercised in relation to any cycle track or footpath proposed to be constructed F37. . . on land separated by intervening land from the trunk road in connection with which it is to be used.

(5)Parts I and III of Schedule 1 to this Act have effect as to the making of an order under this section; and Schedule 2 to this Act has effect as to the validity and date of operation of any such order.

(6)If objection to an order proposed to be made under this section is duly made in accordance with Part I of Schedule 1 to this Act by a council who are responsible for the maintenance of a highway to which the order relates, or who will become so responsible by virtue of the order, and is not withdrawn, the order shall be subject to special parliamentary procedure.

(7)If an order under this section directing that a [F39proposed highway] shall become a trunk road is revoked or varied by a subsequent order made at any time before the date on which the highway is opened for the purposes of through traffic, the revoking or varying order shall not be deemed for the purposes of section 2 above to be an order directing that a trunk road shall cease to be a trunk road.

(8)In addition to the case where a trunk road ceases to be a trunk road by virtue of an order made under this section, a trunk road shall cease to be a trunk road if the road is transferred from the Minister to some other highway authority to become part of a special road provided by that authority.

(9)No highway which is within the City shall be, or become, a trunk road, and without prejudice to the generality of the foregoing provision, none of the following bridges, that is to say, Blackfriars Bridge, London Bridge, Southwark Bridge and Tower Bridge, and no highway carried by any of those bridges, shall be, or become, a trunk road.

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Amendments (Textual)

F37Words in s. 10(4) omitted (01.11.1991) by virtue of New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 22(2)(b), (with ss. 25(2), 167(2)); S.I. 1991/2288, art. 3,Sch.

Modifications etc. (not altering text)

Marginal Citations

11 Local and private Act functions with respect to trunk roads.E+W

(1)As from the date when a highway becomes a trunk road, any functions of construction, maintenance or improvement exercisable as respects that highway by a council under a local or private Act are to be deemed to have become exercisable by the Minister alone and while the highway remains a trunk road they shall continue to be so exercisable.

(2)Where the Minister is satisfied that there has been conferred on a council by a local or private Act a function substantially similar to one conferred by a provision of this Act specified in Schedule 3 to this Act, he may, after consultation with the council, by order direct that, in relation to a trunk road, the function conferred by the local or private Act is to be exercisable in accordance with the following conditions:

(a)where the provision of the local or private Act is similar to a provision of this Act specified in Part I of the said Schedule 3, that it is to be exercisable by the Minister only;

(b)where the provision of the local or private Act is similar to a provision of this Act specified in Part II of the said Schedule, that, in so far as it is exercisable by a council, it is to be exercisable by that council. . . F40, as well as by the Minister;

(c)where the provision of the local or private Act is similar to a provision of this Act specified in Part III of the said Schedule, that, in so far as it is exercisable by a council, it is to be exercisable by that council with the consent of the Minister. . . F40, as well as by the Minister.

(3)Where the Minister makes an order under this section in relation to a function conferred by a provision of a local or private Act, and the provision of this Act by which a function substantially similar to the first-mentioned function is conferred is, in relation to a trunk road, subject to any modification, the provision of the local or private Act shall, in relation to a trunk road, be subject to a similar modification, and the Minister may by the same order specify the modification to which the provision of the local or private Act is accordingly to be subject.

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Amendments (Textual)

Modifications etc. (not altering text)

C16S. 11 modified (22.7.2008) by Transport for London Act 2008 (c. i), ss. 1, 32(1) (with ss. 32(2), 48)

Classified roadsE+W+S+N.I.

12 General provision as to principal and classified roads.E+W

(1)Subject to subsection (3) below, all such highways or proposed highways as immediately before the commencement of this Act—

(a)were principal roads for the purposes of any enactment or instrument which refers to roads or highways classified by the Minister as principal roads, either by virtue of having been so classified under section 27(2) of the M2Local Government Act 1966 (which is replaced by subsection (3) below), or by virtue of being treated as such in accordance with section 40(1) of the M3Local Government Act 1974,

(b)were (whether or not they also fall within paragraph (a) above) classified roads for the purposes of any enactment or instrument which refers to roads classified by the Minister (but does not specifically refer to their classification as principal roads), either by virtue of having been so classified under section 27(2) of the said Act of 1966, or by virtue of being treated as such in accordance with section 40(1) of the said Act of 1974, or

(c)were classified roads for the purposes of any enactment or instrument by virtue of being treated as such in accordance with section 27(4) of the said Act of 1966,

continue to be, and to be known as, principal roads or, as the case may be, classified roads (or both principal roads and classified roads of a category other than principal roads, in the case of highways falling within both paragraph (a) and paragraph (b) above) for the purposes specified in subsection (2) below.

(2)So far as a highway that continues to be a principal or classified road in accordance with subsection (1) above was, immediately before the commencement of this Act, a classified road for the purposes of any enactment repealed and replaced by this Act, it is a classified road for the purposes of the corresponding provision of this Act; and so far as any such highway was immediately before the commencement of this Act a principal or classified road for the purposes of any other enactment, or any instrument, it so continues for the purposes of that enactment or instrument.

(3)The Minister may for the purposes of—

(a)any provision of this Act which refers to classified roads, or

(b)any other enactment or any instrument (whether passed or made before or after the passing of this Act) which refers to highways classified by the Minister,

classify highways or proposed highways, being highways or proposed highways for which local highway authorities are the highway authorities, in such manner as he may from time to time determine after consultation with the highway authorities concerned.

(4)References in any provision hereafter contained in this Act to classified roads are references to—

(a)any highway or proposed highway that for the time being is a classified road for the purposes of that provision by virtue of subsections (1) and (2) above;

(b)any highway or proposed highway that for the time being is classified under subsection (3) above for the purposes of that provision, or for the purposes of enactments that include that provision; and

(c)any highway or proposed highway that for the time being is classified under subsection (3) above as a principal road for the purposes of any enactment or instrument which refers to roads or highways classified by the Minister as principal roads.

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Modifications etc. (not altering text)

Marginal Citations

13 Power to change designation of principal roads.E+W

(1)The Minister may by order assign some other description to the highways which for the time being are principal roads for the purposes of any enactment or instrument (whether by virtue of section 12(1) and (2) above, or by virtue of having been so classified under section 12(3) above, or otherwise).

(2)If an order is made under subsection (1) above, then, except in so far as the order otherwise provides, any reference to a principal road in any enactment or instrument passed or made before the order is made (including an enactment in this Act) is to be construed as a reference to a highway of the description specified in the order.

(3)Nothing in subsection (1) above affects the power of the Minister under section 12(3) above to classify highways or proposed highways in such manner as he may determine after consultation with the highway authority concerned.

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Modifications etc. (not altering text)

Powers as respects roads that cross or join trunk roads or classified roadsE+W+S+N.I.

14 Powers as respects roads that cross or join trunk or classified roads.E+W

(1)Provision may be made by an order under this section in relation to a trunk road or a classified road, not being, in either case, a special road, for any of the following purposes:—

(a)for authorising the highway authority for the road—

(i)to stop up, divert, improve, raise, lower or otherwise alter a highway that crosses or enters the route of the road or is or will be otherwise affected by the construction or improvement of the road;

(ii)to construct a new highway for purposes concerned with any such alteration as aforesaid or for any other purpose connected with the road or its construction, and to close after such period as may be specified in the order any new highway so constructed for temporary purposes;

(b)for transferring to such other highway authority as may be specified in the order, as from such date as may be so specified, a highway constructed by the highway authority in pursuance of the order or any previous order made under this section;

(c)for any other purpose incidental to the purposes aforesaid;

and references in this section, with respect to an order made thereunder, to “the road” and “the highway authority” are references to, respectively, the trunk road or, as the case may be, classified road to which the order relates and the highway authority for that road.

[F41(1A)Subsection (1) is subject to section 33(4) of the Planning Act 2008 (exclusion of powers to make or confirm orders in relation to highways for which development consent required).]

(2)The provision that may be made pursuant to subsection (1)(c) above in an order under this section that provides for the stopping up or diversion of a highway, includes provision for the preservation of any rights—

(a)of statutory undertakers in respect of any apparatus of theirs which immediately before the date of the order is under, in, on, over, along or across the highway to be stopped up or diverted;. . . F42

(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F42

(3)An order under this section—

(a)in relation to a trunk road shall be made by the Minister, and

(b)in relation to a classified road shall be made by the highway authority and confirmed by the Minister.

(4)Parts I and III of Schedule 1 to this Act have effect as to the making of an order under this section; and Schedule 2 to this Act has effect as to the validity and date of operation of any such order.

(5)Subject to subsection (4) above, an order under this section relating to a trunk road may come into operation on the same day as the order under section 10 above relating to that road.

(6)No order under this section authorising the stopping up of a highway shall be made or confirmed by the Minister unless he is satisfied that another reasonably convenient route is available or will be provided before the highway is stopped up.

(7)An order under this section may provide for the payment of contributions—

(a)by the highway authority to any other highway authority in respect of any additional liabilities imposed on that other authority in consequence of the order or of any previous order made under this section;

(b)to the highway authority by any other highway authority in respect of any liabilities so imposed on the first-mentioned authority that would otherwise have fallen to be discharged by that other authority;

and may also provide for the determination by arbitration of disputes as to the payment of such contributions.

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Amendments (Textual)

[F43 GLA roadsE+W

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Amendments (Textual)

F43S. 14A and crossheading inserted (12.1.2000) by 1999 c. 29, s.260 (with Sch. 12 para. 9(1)); S.I. 1999/3434, art.2

F4414A Designation of first GLA roads by Secretary of State.E+W

(1)The Secretary of State may by order designate highways or proposed highways as highways which are to be GLA roads.

(2)Any highway or proposed highway so designated—

(a)shall become a GLA road, and

(b)if it is a trunk road or other highway for which the Secretary of State is the highway authority, shall accordingly cease to be such a road or highway,

on such date as may be specified in that behalf in the order.

(3)Orders under this section may be made or amended at any time before the beginning of the term of office of the first Mayor of London.]

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Amendments (Textual)

F44S. 14A and crossheading inserted (12.1.2000) by 1999 c. 29, s.260 (with Sch. 12 para. 9(1)); S.I. 1999/3434, art.2

Modifications etc. (not altering text)

C20S. 14A extended (5.5.2000) by S.I. 2000/1064, art. 2(1)

[F4514B Orders of the Authority changing what are GLA roads.E+W

(1)The Mayor of London shall keep under review the system of highways and proposed highways in Greater London and the allocation of responsibility for that system between the different local highway authorities.

(2)If the Mayor of London considers it expedient that—

(a)any highway or proposed highway in Greater London, other than a trunk road, should become a GLA road, or

(b)that any GLA road should cease to be such a road and should become a road for which the highway authority is a London borough council or the Common Council,

the Greater London Authority may by order direct that that highway or proposed highway shall become, or (as the case may be) that that road shall cease to be, a GLA road as from such date as may be specified in that behalf in the order.

(3)Where an order under subsection (2) above directs that a highway or proposed highway shall become a GLA road, it shall become such a road as from the date specified in that behalf in the order.

(4)Where an order under subsection (2) above directs that a GLA road shall cease to be such a road, then, as from the date specified in that behalf in the order, the road shall cease to be a GLA road and the following authority, that is to say—

(a)where the road is situated in a London borough, the council for the London borough, and

(b)where the road is situated in the City, the Common Council,

shall become the highway authority for the road.

(5)An order under this section shall be of no effect unless—

(a)it is made with the consent of the relevant highway authority; or

(b)if that consent is refused, it is confirmed (with or without modification) by the Secretary of State.

(6)For the purposes of subsection (5) above, the relevant highway authority is—

(a)in the case of an order directing that a highway or proposed highway shall become a GLA road, the authority which is the highway authority for the highway or proposed highway; and

(b)in the case of an order directing that a GLA road shall cease to be such a road, the authority which will become the highway authority for the road in consequence of the order.]

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Amendments (Textual)

Modifications etc. (not altering text)

C21S. 14B: power to apply conferred by 1984 c. 27, s. 124A(6) (as inserted (12.1.2000) by 1999 c. 29, s.272 (with Sch. 12 para. 9(1)); S.I. 1999/3434, art.2)

[F4614C Certification and records of GLA roads.E+W

(1)A certificate by or on behalf of Transport for London that any highway or proposed highway is, or is not, for the time being a GLA road shall be evidence of the facts stated in the certificate.

(2)A certificate under subsection (1) above may describe the highway or proposed highway in question by reference to a map.

(3)Transport for London shall prepare and maintain a record of the highways which are for the time being GLA roads.

(4)The record required to be prepared and maintained under subsection (3) above may consist of—

(a)a list;

(b)a map; or

(c)a list and a map.

(5)Transport for London shall deposit a copy of that record with the Greater London Authority, each of the London borough councils and the Common Council.

(6)Transport for London, and the Greater London Authority, each of the London borough councils and the Common Council, shall make the record, or (as the case may be) the copies of the record deposited with them, available for inspection by the public at all reasonable hours.]

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Amendments (Textual)

Modifications etc. (not altering text)

C22S. 14C: power to apply conferred by 1984 c. 27, s. 124A(6) (as inserted (12.1.2000) by 1999 c. 29, s.272 (with Sch. 12 para. 9(1)); S.I. 1999/3434, art.2)

[F4714D Construction of provisions relating to GLA roads.E+W

(1)Any reference in any provision of this Act or any other enactment to a GLA road shall be construed as a reference to a highway or proposed highway in Greater London which is for the time being a GLA road by virtue of—

(a)section 2(3) above;

(b)an order made by the Secretary of State under section 14A above; or

(c)an order made under section 14B above by the Greater London Authority.

(2)The functions conferred or imposed on the Greater London Authority in relation to GLA roads shall be functions of the Authority which are exercisable by the Mayor of London acting on behalf of the Authority.

(3)Subsection (2) above does not apply in relation to any function expressly conferred or imposed on the London Assembly.]

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Amendments (Textual)

Metropolitan roadsE+W+S+N.I.

15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F48E+W+S+N.I.

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Amendments (Textual)

Special roadsE+W+S+N.I.

16 General provision as to special roads.E+W

(1)Subject to the provisions of this Act, all such highways or proposed highways as immediately before the commencement of this Act were special roads, as being highways or proposed highways provided, or to be provided, in pursuance of a scheme made, or having effect as if made, under section 11 of the M4Highways Act 1959 (which section is replaced by subsections (3) to (10) below), continue to be, and to be known as, special roads.

(2)Roads that continue to be special roads by virtue of subsection (1) above continue, subject to the provisions of this Act, to be special roads for the use of traffic of the classes for the use of which they were special roads immediately before the commencement of this Act.

(3)A highway authority may be authorised by means of a scheme under this section to provide, along a route prescribed by the scheme, a special road for the use of traffic of any class prescribed thereby.

[F49(3A)Subsection (3) is subject to section 33(4) of the Planning Act 2008 (exclusion of powers to make or confirm schemes in relation to highways for which development consent required).]

(4)Subject to subsection (10) below, a highway authority authorised by means of a scheme under this section, or any such scheme as is referred to in subsection (1) above, to provide a special road is in this Act referred to in relation to that road as the special road authority.

(5)A special road authorised by a scheme under this section may be provided—

(a)by means of the construction by the special road authority of a new highway along the route prescribed by the scheme or any part thereof;

(b)by means of the appropriation under subsequent provisions in that behalf of this Part of this Act of a highway comprised in that route for which the special road authority are the highway authority;

(c)by means of the transfer to the special road authority under subsequent provisions in that behalf of this Part of this Act of a highway comprised in that route for which they are not the highway authority.

(6)A scheme under this section authorising the provision of a special road shall—

(a)in the case of a road to be provided by the Minister, be made by the Minister; and

(b)in the case of a road to be provided by a local highway authority, be made by that authority and confirmed by the Minister.

(7)Parts II and III of Schedule 1 to this Act have effect as to the making of a scheme under this section; and Schedule 2 to this Act has effect as to the validity and date of operation of any such scheme.

(8)Before making or confirming a scheme under this section, the Minister shall give due consideration to the requirements of local and national planning, including the requirements of agriculture.

(9)If objection to a scheme under this section is duly made in accordance with Part II of the said Schedule 1 by the highway authority for a highway comprised in the route of the special road authorised by the scheme, and is not withdrawn, the scheme shall be subject to special parliamentary procedure.

(10)A scheme under this section may be submitted to the Minister jointly by any two or more local highway authorities, and any such scheme may determine which of those authorities shall be the special road authority for the special road or any part thereof, and may provide—

(a)for the performance by that authority, in relation to the road or that part thereof, of any of the highway functions of any other authority who are party to the application, and

(b)for the making of contributions by that other authority to the special road authority in respect of expenditure incurred in the performance of those functions;

and in relation to a special road provided or to be provided in pursuance of such a scheme, or any part of such a road, references in this Act to a special road authority are references to the highway authority who are by virtue of that scheme the special road authority for that road or part.

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Amendments (Textual)

Marginal Citations

17 Classification of traffic for purposes of special roads.E+W

(1)Different classes of traffic may be prescribed by a scheme under section 16 above in relation to different parts of the special road to which the scheme relates.

(2)The classes of traffic prescribed by any such scheme shall be prescribed by reference to the classes set out in Schedule 4 to this Act.

(3)The Minister of Transport may by order amend the said Schedule 4 by varying the composition of any class of traffic specified therein or adding a further class of traffic to those so specified, F50. . .

[F51(4)An amending order may contain provision applying the amendments made by the order to existing schemes (whether made by the Minister or a local highway authority); and in the absence of such provision an amending order does not affect the classes of traffic prescribed in an existing scheme.

In this subsection an “existing scheme” means a scheme under section 16 made before the order comes into operation.]

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Amendments (Textual)

F50Words in s. 17(3) omitted (01.11.1991) by virtue of New Roads and Street Works Act 1991 (c. 22, SIF 59, 108), s. 20(1), (with ss. 25(2), 167(2)); S.I. 1991/2288, art. 3,Sch.

18 Supplementary orders relating to special roads.E+W

(1)Provision in relation to a special road may be made by an order under this section for any of the following purposes:—

(a)for appropriating as, or as part of, the special road, as from such date as may be specified in the order, a highway which is comprised in the route prescribed by the scheme authorising the special road and which is a highway for which the special road authority are the highway authority;

(b)for transferring to the special road authority, as from such date as may be specified in the order, a highway which is comprised in the route prescribed by the scheme authorising the special road and which is a highway for which they are not the highway authority;

(c)for authorising the special road authority—

(i)to stop up, divert, improve, raise, lower or otherwise alter a highway that crosses or enters the route of the special road or is or will be otherwise affected by the construction or improvement of the special road;

(ii)to construct a new highway for purposes connected with any such alteration as aforesaid or for any other purpose connected with the special road or its construction, and to close after such period as may be specified in the order any new highway so constructed for temporary purposes;

(d)for transferring to such highway authority as may be specified in the order, as from such date as may be so specified, a highway constructed by the special road authority in pursuance of the order or any previous order made under this section;

(e)for authorising or requiring the special road authority to exercise, either concurrently with or to the exclusion of any local authority, any functions which, apart from the order, would be exercisable by that local authority in relation to the special road other than functions of that authority as local planning authority;

(f)for any other purpose incidental to the purposes aforesaid or otherwise incidental to the construction or maintenance of, or other dealing with, the special road.

[F52(1A)Subsection (1) is subject to section 33(4) of the Planning Act 2008 (exclusion of powers to make or confirm orders in relation to highways for which development consent required).]

(2)The provision that may be made pursuant to subsection (1)(f) above in an order under this section that provides for the stopping up or diversion of a highway, includes provision for the preservation of any rights—

(a)of statutory undertakers in respect of any apparatus of theirs which immediately before the date of the order is under, in, on, over, along or across the highway to be stopped up or diverted;. . . F53

(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F53

(3)An order under this section making provision in connection with a special road shall—

(a)in the case of a special road provided or to be provided by the Minister be made by the Minister; and

(b)in the case of a special road provided or to be provided by a local highway authority, be made by that authority and confirmed by the Minister.

(4)Parts I and III of Schedule 1 to this Act have effect as to the making of an order under this section; and Schedule 2 to this Act has effect as to the validity and date of operation of any such order.

(5)Subject to subsection (4) above, an order under this section may come into operation on the same day as the scheme authorising the special road to which it relates.

(6)No order providing for the appropriation by or transfer to a special road authority of a highway comprised in the route prescribed by the scheme authorising the special road shall be made or confirmed by the Minister under this section unless either—

(a)he is satisfied that another reasonably convenient route is available for traffic other than traffic of the class authorised by the scheme, or will be provided before the date on which the appropriation or transfer takes effect, or

(b)he is satisfied that no such other route is reasonably required for any such other traffic;

and no order authorising the stopping up of a highway shall be made or confirmed by the Minister under this section unless he is satisfied that another reasonably convenient route is available or will be provided before the highway is stopped up.

(7)An order under this section may provide for the payment of contributions—

(a)by a special road authority to any other highway authority in respect of any additional liabilities imposed on that other authority in consequence of the provisions of the order or of any previous order made under this section,

(b)to a special road authority by any other authority in respect of any liabilities so imposed on the special road authority that would otherwise have fallen to be discharged by the other authority,

and may also provide for the determination by arbitration of disputes as to the payment of such contributions.

(8)In this section “local authority” means. . . F54 the Common Council and the council of a county, district, London borough, parish or community, and includes the parish meeting of a F55. . . parish not having a separate parish council.

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Amendments (Textual)

F55Word in s. 18(8) repealed (8.11.1995) by 1995 c. 44, s. 1, Sch. 1 Pt. V Group2.

19 Certain special roads and other highways to become trunk roads.E+W

(1)A special road to be provided by the Minister in pursuance of a scheme under section 16 above shall, except so far as it is provided by means of the appropriation or transfer of a highway, become a trunk road on such date as may be specified in the scheme.

(2)A highway (not being a trunk road) which, by means of an order under section 18 above, is appropriated as, or as part of, a special road to be provided by the Minister, and a highway which, by means of such an order, is transferred to the Minister, shall become a trunk road on the date on which it is so appropriated or is so transferred, as the case may be.

[F56(3)Subsections (1) and (2) above have effect subject to any provision of the scheme under section 16 directing that the special road in question or any part of it shall not be a trunk road.

Any such provision does not affect the power of the Minister to make an order under section 10(2)(a) with respect to the special road or part.]

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Amendments (Textual)

F5720. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

Ancillary matters with respect to orders under section 14 or 18 and schemes under section 16E+W+S+N.I.

21 Extinguishment of rights of statutory undertakers as to apparatus etc. in connection with orders under section 14 or 18 and schemes under section 16.E+W

(1)F58. . . [F59sections 271 to 274 of the Town and Country Planning Act 1990], (power to extinguish rights of statutory undertakers and power of statutory undertakers to remove or re-site apparatus) apply in relation to any land specified in subsection (2) below as they apply in relation to land acquired by a Minister, a local authority or statutory undertakers under [F60Part IX of that Act], or under any other enactment, or appropriated by a local authority for planning purposes; and all such other provisions of that Act as apply for the purposes of those provisions (including [F61sections 279(2) to (4), 280 and 282, which provide for the payment of compensation, and sections 275 to 278 which contain provisions consequential on the extinguishment of any rights under section 271 or 272]) shall have effect accordingly.

(2)The land referred to in subsection (1) above is—

(a)land acquired or appropriated by a special road authority for the purposes of carrying out any works in pursuance of a scheme under section 16 above or an order under section 18 above;

(b)land forming the site of any part of a highway which is appropriated by or transferred to a special road authority by means of an order under section 18 above;

(c)land over which there subsists or has subsisted a highway the stopping up or diversion of which is or was authorised by an order under section 14 or 18 above.

(3)The provisions of [F62the said Act of 1990] referred to in subsection (1) above have effect, as applied for the purposes of this section—

(a)in relation to any such land as is referred to in subsection (2)(a) or (b) above, subject to the modifications set out in Part I of Schedule 5 to this Act, and

(b)in relation to any such land as is referred to in subsection (2)(c) above, subject to the modifications set out in Part II of that Schedule.

(4)Where any apparatus of public utility undertakers is removed in pursuance of a notice or order given or made under [F63section 271, 272, or 273 of the said Act 1990], as applied for the purposes of this section in relation to any such land as is specified in paragraph (a) or (b) of subsection (2) above, any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the special road authority compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

[F64(4A)Subsection (4) above shall not apply in the case of the removal of a public sewer but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that subsection, any person who is—

(a)the owner or occupier of premises the drains of which communicated with that sewer; or

(b)the owner of a private sewer which communicated with that sewer,

is entitled to recover from the special road authority compensation in respect of expenditure reasonably incurred by him, in consequence of the removal, for the purpose of making his drain or sewer communicate with any other public sewer or with a private sewage disposal plant.]

(5)In this section “owner”, in relation to any premises, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple in the premises, whether in possession or in reversion, and includes also a person holding or entitled to the rents and profits of the premises under a lease the unexpired term of which exceeds three years.

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Amendments (Textual)

22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F65E+W+S+N.I.

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Amendments (Textual)

23 Compensation in respect of certain works executed in pursuance of orders under section 14 or 18.E+W+S+N.I.

Where, in pursuance of an order under section 14 or 18 above, the Minister, a special road authority or a local highway authority, as the case may be, execute in, or with respect to, a highway works which the highway authority for that highway have power to execute under Part V of this Act, the Minister, the special road authority or the local highway authority, as the case may be, shall be subject to the like liability to pay compensation to a person who sustains damage by reason of the execution of those works as would be the highway authority for that highway had those works been executed by that authority under the said Part V.

Part IIIE+W+S+N.I. Creation of Highways

24 Construction of new highways and provision of road-ferries.E+W

(1)The Minister may, with the approval of the Treasury, construct new highways; but where he proposes to construct a new highway other than—

(a)a trunk road,

(b)a special road,

(c)a highway the construction of which is authorised by an order relating to a trunk road under section 14 above or an order under section 18 above, or

(d)a highway to be constructed for purposes connected with any function exercisable by him under an agreement made under section 4 above,

he shall give notice of his proposals to, and consider any representations by, every council through whose area the highway will pass.

(2)A local highway authority may construct new highways; but—

(a)where a new highway to be constructed by such an authority will communicate with a highway for which the Minister is the highway authority;. . . F66

(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F66

the communication shall not be made unless the manner in which it is to be made has been approved by the Minister. . . F66

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F67

(4)The Minister or a local highway authority may provide and maintain new road-ferries.

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Amendments (Textual)

F66S. 24(2)(b) and the word immediately preceding it and words in concluding words of s. 24(2) repealed by Local Government Act 1985 (c. 51, SIF 81:1), s. 102, Sch. 17

Modifications etc. (not altering text)

C23S. 24(1) modified (18.12.1996) by 1996 c. 61, s. 44, Sch. 12 Pt. III para. 9(b).

25 Creation of footpath or bridleway by agreement.E+W

(1)A local authority may enter into an agreement with any person having the necessary power in that behalf for the dedication by that person of a footpath or bridleway over land in their area.

An agreement under this section is referred to in this Act as a “public path creation agreement”.

(2)For the purposes of this section “local authority”—

(a)in relation to land outside Greater London means a county council, a district council F68. . .; and

(b)in relation to land in Greater London means F69. . . a London borough council or the Common Council.

(3)Before entering into an agreement under this section a local authority shall consult any other local authority or authorities in whose area the land concerned is situated.

(4)An agreement under this section shall be on such terms as to payment or otherwise as may be specified in the agreement and may, if it is so agreed, provide for the dedication of the footpath or bridleway subject to limitations or conditions affecting the public right of way over it.

(5)Where a public path creation agreement has been made it shall be the duty of the local authority who are a party to it to take all necessary steps for securing that the footpath or bridleway is dedicated in accordance with it.

[F70(6)As soon as may be after the dedication of a footpath or bridleway in accordance with a public path creation agreement, the local authority who are party to the agreement shall give notice of the dedication by publication in at least one local newspaper circulating in the area in which the land to which the agreement relates is situated.]

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Amendments (Textual)

F68Words in s. 25(2)(a) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch.24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

Modifications etc. (not altering text)

C25Ss. 25-29 extended (with modifications) (19.9.1995) by 1995 c. 25, ss. 70, 125(2), Sch. 9 para. 11(a) (with ss. 7(6), 115, 117, Sch. 8 para. 7).

26 Compulsory powers for creation of footpaths and bridleways.E+W

(1)Where it appears to a local authority that there is need for a footpath or bridleway over land in their area and they are satisfied that, having regard to—

(a)the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area, and

(b)the effect which the creation of the path or way would have on the rights of persons interested in the land, account being taken of the provisions as to compensation contained in section 28 below,

it is expedient that the path or way should be created, the authority may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed by them as an unopposed order, create a footpath or bridleway over the land.

An order under this section is referred to in this Act as a “public path creation order”; and for the purposes of this section “local authority” has the same meaning as in section 25 above.

(2)Where it appears to the Secretary of State in a particular case that there is need for a footpath or bridleway as mentioned in subsection (1) above, and he is satisfied as mentioned in that subsection, he may, after consultation with each body which is a local authority for the purposes of this section in relation to the land concerned, make a public path creation order creating the footpath or bridleway.

(3)A local authority shall, before exercising any power under this section, consult any other local authority or authorities in whose area the land concerned is situated.

[F71(3A)The considerations to which—

(a)the Secretary of State is to have regard in determining whether or not to confirm or make a public path creation order, and

(b)a local authority are to have regard in determining whether or not to confirm such an order as an unopposed order,

include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the proposed footpath or bridleway would be created.]

(4)A right of way created by a public path creation order may be either unconditional or subject to such limitations or conditions as may be specified in the order.

(5)A public path creation order shall be in such form as may be prescribed by regulations made by the Secretary of State, and shall contain a map, on such scale as may be so prescribed, defining the land over which a footpath or bridleway is thereby created.

(6)Schedule 6 to this Act shall have effect as to the making, confirmation, validity and date of operation of public path creation orders.

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Amendments (Textual)

F71S. 26(3A) inserted (12.2.2003 for E. and 1.4.2004 for W.) by 2000 c. 37, s. 57, Sch. 6 Pt. I para. 1; S.I. 2003/272, art. 2(a)(b); S.I 2004/315, {art. 2(c)}; S.I. 2006/3257, art. 2(a)(i)

Modifications etc. (not altering text)

C29Ss. 25-29 extended (with modifications) (19.9.1995) by 1995 c. 25, ss. 70, 125(2), Sch. 9 para. 11(a) (with ss. 7(6), 115, 117, Sch. 8 para. 7).

C30S. 26: functions of local authority not to be responsibility of an executive of the authority (E.) (16.11.2000) by virtue of S.I. 2000/2853, reg. 2(1), Sch. 1

C32S. 26(2) amended (30.1.2001) by 2000 c. 37, ss. 58(1), 103(2)

27 Making up of new footpaths and bridleways.E+W

(1)On the dedication of a footpath or bridleway in pursuance of a public path creation agreement, or on the coming into operation of a public path creation order, being—

(a)an agreement or order made by a local authority who are not the highway authority for the path in question, or

(b)an order made by the Secretary of State under section 26(2) above in relation to which he directs that this subsection shall apply,

the highway authority shall survey the path or way and shall certify what work (if any) appears to them to be necessary to bring it into a fit condition for use by the public as a footpath or bridleway, as the case may be, and shall serve a copy of the certificate on the local authority mentioned in paragraph (a) above or, where paragraph (b) applies, on such local authority as the Secretary of State may direct.

(2)It shall be the duty of the highway authority to carry out any works specified in a certificate under subsection (1) above, and where the authority have carried out the work they may recover from the authority on whom a copy of the certificate was served any expenses reasonably incurred by them in carrying out that work, including any expenses so incurred in the discharge of any liability for compensation in respect of the carrying out thereof.

(3)Notwithstanding anything in the preceding provisions of this section, where an agreement or order is made as mentioned in subsection (1)(a) above, the local authority making the agreement or order may—

(a)with the consent of the highway authority carry out (in place of the highway authority) the duties imposed by that subsection on the highway authority; and

(b)carry out any works which, apart from this subsection, it would be the duty of the highway authority to carry out under subsection (2) above.

(4)Where the Secretary of State makes a public path creation order under section 26(2) above, he may direct that subsection (5) below shall apply.

(5)Where the Secretary of State gives such a direction—

(a)the local authority who, on the coming into force of the order, became the highway authority for the path or way in question shall survey the path or way and shall certify what work (if any) appears to them to be necessary to bring it into a fit condition for use by the public as a footpath or bridleway, as the case may be, and shall furnish the Secretary of State with a copy of the certificate;

(b)if the Secretary of State is not satisfied with a certificate made under the foregoing paragraph, he shall either cause a local inquiry to be held or shall give to the local authority an opportunity of being heard by a person appointed by him for the purpose and, after considering the report of the person appointed to hold the inquiry or the person so appointed as aforesaid, shall make such order either confirming or varying the certificate as he may think fit; and

(c)subject to the provisions of the last foregoing paragraphs, it shall be the duty of the highway authority to carry out the work specified in a certificate made by them under paragraph (a) above.

(6)In this section “local authority” means any council F72. . ..

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Amendments (Textual)

F72Words in s. 27(6) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch.24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch..

Modifications etc. (not altering text)

C34Ss. 25-29 extended (with modifications) (19.9.1995) by 1995 c. 25, ss. 70, 125(2), Sch. 9 para. 11(a) (with ss. 7(6), 115, 117, Sch. 8 para. 7).

28 Compensation for loss caused by public path creation order.E+W

(1)Subject to the following provisions of this section, if, on a claim made in accordance with this section, it is shown that the value of an interest of a person in land is depreciated, or that a person has suffered damage by being disturbed in his enjoyment of land, in consequence of the coming into operation of a public path creation order, the authority by whom the order was made shall pay to that person compensation equal to the amount of the depreciation or damage.

(2)A claim for compensation under this section shall be made within such time and in such manner as may be prescribed by regulations made by the Secretary of State, and shall be made to the authority by whom the order was made.

(3)For the purposes of the application of this section to an order made by the Secretary of State under section 26(2) above, references in this section to the authority by whom the order was made are to be construed as references to such one of the authorities referred to in that subsection as may be nominated by the Secretary of State for the purposes of this subsection.

(4)Nothing in this section confers on any person, in respect of a footpath or bridleway created by a public path creation order, a right to compensation for depreciation of the value of an interest in the land, or for disturbance in his enjoyment of land, not being in either case land over which the path or way was created or land held therewith, unless the creation of the path or way would have been actionable at his suit if it had been affected otherwise than in the exercise of statutory powers.

(5)In this section “interest”, in relation to land, includes any estate in land and any right over land, whether the right is exercisable by virtue of the ownership of an interest in land or by virtue of a licence or agreement, and in particular includes sporting rights.

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Modifications etc. (not altering text)

C37Ss. 25-29 extended (with modifications) (19.9.1995) by 1995 c. 25, ss. 70, 125(2), Sch. 9 para. 11(a) (with ss. 7(6), 115, 117, Sch. 8 para. 7).

[F7329 Duty to have regard to agriculture, forestry and nature conservation.E+W

(1)In the exercise of their functions under this Part of this Act relating to the making of public path creation agreements and public path creation orders it shall be the duty of councils to have due regard to—

(a)the needs of agriculture and forestry, and

(b)the desirability of conserving flora, fauna and geological and physiographical features.

(2)In this section, “agriculture” includes the breeding or keeping of horses.]

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Amendments (Textual)

F73S. 29 substituted (12.2.2003 for E and 31.5.2005 for W.) by 2000 c. 37, s. 57, Sch. 6 Pt. I para. 2; S.I. 2003/272, art. 2(a)(c); S.I. 2005/1314, art. 2(b)(i)

30 Dedication of highway by agreement with parish or community council.E+W+S+N.I.

(1)The council of a parish or community may enter into an agreement with any person having the necessary power in that behalf for the dedication by that person of a highway over land in the parish or community or an adjoining parish or community in any case where such a dedication would in the opinion of the council be beneficial to the inhabitants of the parish or community or any part thereof.

(2)Where the council of a parish or community have entered into an agreement under subsection (1) above for the dedication of a highway they may carry out any works (including works of maintenance or improvement) incidental to or consequential on the making of the agreement or contribute towards the expense of carrying out such works, and may agree or combine with the council of any other parish or community to carry out such works or to make such a contribution.

31 Dedication of way as highway presumed after public use for 20 years.E+W

(1)Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

[F74(1A)Subsection (1)—

(a)is subject to section 66 of the Natural Environment and Rural Communities Act 2006 (dedication by virtue of use for mechanically propelled vehicles no longer possible), but

(b)applies in relation to the dedication of a restricted byway by virtue of use for non-mechanically propelled vehicles as it applies in relation to the dedication of any other description of highway which does not include a public right of way for mechanically propelled vehicles.]

(2)The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.

(3)Where the owner of the land over which any such way as aforesaid passes—

(a)has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and

(b)has maintained the notice after the 1st January 1934, or any later date on which it was erected,

the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.

(4)In the case of land in the possession of a tenant for a term of years, or from year to year, any person for the time being entitled in reversion to the land shall, notwithstanding the existence of the tenancy, have the right to place and maintain such a notice as is mentioned in subsection (3) above, so, however, that no injury is done thereby to the business or occupation of the tenant.

(5)Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway.

(6)An owner of land may at any time deposit with the appropriate council—

(a)a map of the land on a scale of not less than 6 inches to 1 mile, and

(b)a statement indicating what ways (if any) over the land he admits to have been dedicated as highways;

and, in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time—

(i)within [F75ten] years from the date of the deposit, or

(ii)within [F75ten] years from the date on which any previous declaration was last lodged under this section.

to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway.

(7)For the purposes of the foregoing provisions of this section “owner”, in relation to any land, means a person who is for the time being entitled to dispose of the fee simple in the land; and for the purposes of subsections (5) and (6) above “the appropriate council” means the council of the county [F76, metropolitan district] or London borough in which the way (in the case of subsection (5)) or the land (in the case of subsection (6)) is situated or, where the way or land is situated in the City, the Common Council.

[F77(7A)Subsection (7B) applies where the matter bringing the right of the public to use a way into question is an application under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications so as to show the right on the definitive map and statement.

(7B)The date mentioned in subsection (2) is to be treated as being the date on which the application is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.]

(8)Nothing in this section affects any incapacity of a corporation or other body or person in possession of land for public or statutory purposes to dedicate a way over that land as a highway if the existence of a highway would be incompatible with those purposes.

(9)Nothing in this section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years, or being presumed or proved in any circumstances in which it might have been presumed or proved immediately before the commencement of this Act.

(10)Nothing in this section or section 32 below affects [F78section 56(1) of the Wildlife and Countryside Act 1981 (which provides that a definitive map and statement] are conclusive evidence as to the existence of the highways shown on the map and as to certain particulars contained in the statement),. . . F79

[F80(10A)Nothing in subsection (1A) affects the obligations of the highway authority, or of any other person, as respects the maintenance of a way.]

(11)For the purposes of this section “land” includes land covered with water.

[F81(12)For the purposes of subsection (1A) “mechanically propelled vehicle” does not include a vehicle falling within section 189(1)(c) of the Road Traffic Act 1988 (electrically assisted pedal cycle).]

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Amendments (Textual)

F75Words in s. 31(6)(i)(ii) substituted (13.2.2004 for E. and 31.5.2005 for W.) by 2000 c. 37, s. 57, Sch. 6 Pt. I para. 3; S.I. 2004/292, art. 2(e) (with art. 3(2)); S.I. 2005/1314, art. 2(b)(ii) (subject to art. 5); S.I. 2005/2459, art. 2(2)(c)(d)

[F8231A Register of maps, statements and declarations.E+W

(1)The appropriate council shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed with respect to maps and statements deposited and declarations lodged with that council under section 31(6) above.

(2)Regulations may make provision for the register to be kept in two or more parts, each part containing such information as may be prescribed with respect to such maps, statements and declarations.

(3)Regulations may make provision as to circumstances in which an entry relating to a map, statement or declaration, or anything relating to it, is to be removed from the register or from any part of it.

(4)Every register kept under this section shall be available for inspection free of charge at all reasonable hours.

(5)In this section—

  • appropriate council” has the same meaning as in section 31(6) above;

  • prescribed” means prescribed by regulations;

  • regulations” means regulations made by the Secretary of State.]

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Amendments (Textual)

F82S. 31A inserted (21.11.2005 for W. and 1.10.2007 for E.) by 2000 c. 37, ss. 57, 103(3), Sch. 6 Pt. I para. 4; S.I. 2005/1314, art. 4(b)(i); S.I. 2007/2335, art. 2

32 Evidence of dedication of way as highway.E+W+S+N.I.

A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.

33 Protection of rights of reversioners.E+W+S+N.I.

The person entitled to the remainder or reversion immediately expectant upon the determination of a tenancy for life, or pour autre vie, in land shall have the like remedies by action for trespass or an injunction to prevent the acquisition by the public of a right of way over that land as if he were in possession thereof.

34 Conversion of private street into highway.E+W+S+N.I.

Without prejudice to the foregoing provisions of this Part of this Act, a street which is not a highway and land to which section 232 below applies may become a highway by virtue of a declaration made by a county council, [F83a metropolitan district council,] a London borough council or the Common Council in accordance with the provisions in that behalf contained in Part XI of this Act.

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Amendments (Textual)

35 Creation of walkways by agreement.E+W

(1)An agreement under this section may be entered into—

(a)by a local highway authority, after consultation with the council of any [F84non-metropolitan] district in which the land concerned is situated;

(b)by a [F84non-metropolitan] district council, either alone or jointly with the local highway authority, after consultation with the local highway authority.

(2)An agreement under this section is an agreement with any person having an interest in any land on which a building is, or is proposed to be, situated, being a person who by virtue of that interest has the necessary power in that behalf,—

(a)for the provision of ways over, through or under parts of the building, or the building when constructed, as the case may be, or parts of any structure attached, or to be attached, to the building; and

(b)for the dedication by that person of those ways as footpaths subject to such limitations and conditions, if any, affecting the public right of way thereover as may be specified in the agreement and to any rights reserved by the agreement to that person and any person deriving title to the land under him.

A footpath created in pursuance of an agreement under this section is referred to below as a “walkway”.

(3)An agreement under this section may make provision for—

(a)the maintenance, cleansing and drainage of any walkway to which the agreement relates;

(b)the lighting of such walkway and of that part of the building or structure which will be over or above it;

(c)the provision and maintenance of support for such walkway;

(d)entitling the authority entering into the agreement or, where the agreement is entered into jointly by a [F84non-metropolitan] district council and a local highway authority, either of those authorities to enter on any building or structure in which such walkway will be situated and to execute any works necessary to secure the performance of any obligation which any person is for the time being liable to perform by virtue of the agreement or of subsection (4) below;

(e)the making of payments by the authority entering into the agreement or, where the agreement is entered into jointly by a [F84non-metropolitan] district council and a local highway authority, either of those authorities to any person having an interest in the land or building affected by the agreement;

(f)the termination, in such manner and subject to such conditions as may be specified in the agreement, of the right of the public to use such walkway;

(g)any incidental and consequential matters.

(4)Any covenant (whether positive or restrictive) contained in an agreement under this section and entered into by a person having an interest in any land affected by the agreement shall be binding upon persons deriving title to the land under the covenantor to the same extent as it is binding upon the covenantor notwithstanding that it would not have been binding upon those persons apart from the provisions of this subsection, and shall be enforceable against those persons by the local highway authority.

(5)A covenant contained in an agreement under this section and entered into by a person having an interest in any land affected by the agreement is a local land charge.

(6)Where an agreement has been entered into under this section the appropriate authority may make byelaws regulating—

(a)the conduct of persons using any walkway to which the agreement relates;

(b)the times at which any such walkway may be closed to the public;

(c)the placing or retention of anything (including any structure or projection) in, on or over any such walkway.

(7)For the purposes of subsection (6) above, “the appropriate authority” means—

(a)where the agreement was entered into by a local highway authority, that authority;

(b)where the agreement was entered into by a [F85non-metropolitan] district council alone, that council;

(c)where the agreement was entered into by a [F85non-metropolitan] district council jointly with the local highway authority, the local highway authority;

but in cases falling within paragraph (c) above the local highway authority shall before making any byelaw consult the district council, and in exercisng his power of confirmation the Minister shall have regard to any dispute between the local highway authority and the district council.

(8)Not less than 2 months before an authority propose to make byelaws under subsection (6) above they shall display in a conspicuous position on or adjacent to the walkway in question notice of their intention to make such byelaws.

(9)A notice under subsection (8) above shall specify the place where a copy of the proposed byelaws may be inspected and the period, which shall not be less than 6 weeks from the date on which the notice was first displayed as aforesaid, within which representations may be made to the authority, and the authority shall consider any representations made to them within that period.

(10)The Minister of the Crown having power by virtue of section 236 of the M5Local Government Act 1972 to confirm byelaws made under subsection (6) above may confirm them with or without modifications; and if he proposes to confirm them with modifications he may, before confirming them, direct the authority by whom they were made to give notice of the proposed modifications to such persons and in such manner as may be specified in the direction.

(11)Subject to subsection (12) below, the Minister, after consulting such representative organisations as he thinks fit, may make regulations—

(a)for preventing any enactment or instrument relating to highways or to things done on or in connection with highways from applying to walkways which have been, or are to be, created in pursuance of agreements under this section or to things done on or in connection with such walkways;

(b)for amending, modifying or adapting any such enactment or instrument in its application to such walkways;

(c)without prejudice to the generality of paragraphs (a) and (b) above, for excluding, restricting or regulating the rights of statutory undertakers, F86. . . [F87F86. . . and the operators of [F88electronic communications code networks] to place] and maintain apparatus in, under, over, along or across such walkways;

(d)without prejudice as aforesaid, for defining the cirumstances and manner in which such walkways may be closed periodically or temporarily or stopped up and for prescribing the procedure to be followed before such a walkway is stopped up.

(12)Regulations under this section shall not exclude the rights of statutory undertakers, F89. . . [F90F89. . . or the operators of [F88electronic communications code networks] to place] and maintain apparatus in, under, along or across any part of a walkway, being a part which is not supported by any structure.

(13)Without prejudice to subsection (11) above, regulations under this section may make different provisions for different classes of walkways and may include such incidental, supplemental and consequential provisions (and, in particular, provisions relating to walkways provided in pursuance of agreements made before the coming into operation of the regulations) as appear to the Minister to be expedient for the purposes of the regulations.

(14)Nothing in this section is to be taken as affecting any other provision of this Act, or any other enactment, by virtue of which highways may be created.

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Amendments (Textual)

F88Words in s. 35(11)(c)(12) substituted (25.7.2003 for specified purposes, 29.12.2003 for specified purposes ) by Communications Act 2003 (c. 21), ss. 406(1)(6), 408, 411, Sch. 17 para. 53 (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with art. 3(2) (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2) (with art. 11)

Marginal Citations

Part IVE+W+S+N.I. Maintenance of Highways

Highways maintainable at public expenseE+W+S+N.I.

36 Highways maintainable at public expense.E+W

(1)All such highways as immediately before the commencment of this Act were highways maintainable at the public expense for the purposes of the M6Highways Act 1959 continue to be so maintainable (subject to this section and to any order of a magistrates’ court under section 47 below) for the purposes of this Act.

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

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

(b)a highway constructed by a council within their own area under [F91Part II of the Housing Act 1985], other than one in respect of which the local highway authority are satisfied that it has not been properly constructed, and a highway constructed by a council outside their own area under [F91the said Part II], being, in the latter case, a highway the liability to maintain which is, by virtue of [F91the said Part II], vested in the council who are the local highway authority for the area in which the highway is situated;

(c)a highway that is a trunk road or a special road; F92. . .

(d)a highway, being a footpath or bridleway, created in consequence of a public path creation order or a public path diversion order or in consequence of an order made by the Minister of Transport or the Secretary of State under [F93section 247 of the Town and Country Planning Act 1990 or by a competent authority under section 257 of that Act], or dedicated in pursuance of a public path creation agreement.

[F94(e)a highway, being a footpath or bridleway, created in consequence of a rail crossing diversion order, or of an order made under section 14 or 16 of the Harbours Act 1964, or of an order made under section 1 or 3 of the Transport and Works Act 1992.]

[F95(f)a highway, being a footpath, a bridleway, a restricted byway or a way over which the public have a right of way for vehicular and all other kinds of traffic, created in consequence of a special diversion order or an SSSI diversion order.]

(3)Paragraph (c) of subsection (2) above is not to be construed as referring to a part of a trunk road or special road consisting of a bridge or other part which a person is liable to maintain under a charter or special enactment, or by reason of tenure, enclosure or prescription.

[F96(3A)Paragraph (e) of subsection (2) above shall not apply to a footpath or bridleway, or to any part of a footpath or bridleway, which by virtue of an order of a kind referred to in that subsection is maintainable otherwise than at the public expense.]

(4)Subject to subsection (5) below, where there occurs any event on the occurrence of which, under any rule of law relating to the duty of maintaining a highway by reason of tenure, enclosure or prescription, a highway would, but for the enactment which abrogated the former rule of law under which a duty of maintaining highways fell on the inhabitants at large (section 38(1) of the M7Highways Act 1959) or any other enactment, become, or cease to be, maintainable by the inhabitants at large of any area, the highway shall become, or cease to be, a highway which for the purposes of this Act is a highway maintainable at the public expense.

(5)A highway shall not by virtue of subsection (4) above become a highway which for the purposes of this Act is a highway maintainable at the public expense unless either—

(a)it was a highway before 31st August 1835; or

(b)it became a highway after that date and has at some time been maintainable by the inhabitants at large of any area or a highway maintainable at the public expense;

and a highway shall not by virtue of that subsection cease to be a highway maintainable at the public expense if it is a highway which under any rule of law would become a highway maintainable by reason of enclosure but is prevented from becoming such a highway by section 51 below.

(6)The council of every county [F97, metropolitan district] and London borough and the Common Council shall cause to be made, and shall keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense.

(7)Every list made under subsection (6) above shall be kept deposited at the offices of the council by whom it was made and may be inspected by any person free of charge at all reasonable hours and in the case of a list made by the council of a county [F98in England], the county council shall supply to the council of each district in the county an up to date list of the streets within the area of the district that are highways maintainable at the public expense, and the list so supplied shall be kept deposited at the office of the district council and may be inspected by any person free of charge at all reasonable hours.

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Amendments (Textual)

F92Word in s. 36(2) at the end of para. (c) repealed (31.1.1993) by Transport and Works Act 1992 (c. 42), ss. 64(2), 68(1), Sch. 4 Pt. I; S.I. 1992/3144, art. 3, Sch.

F95S. 36(2)(f) inserted (12.2.2003 for E. for certain purposes and 21.5.2007 in so far as not already in force, 15.7.2005 for W. for certain purposes and otherwise prosp.) by 2000 c. 37, ss. 57, 103(3), Sch. 6 Pt. I para. 5; S.I. 2003/272, art. 2(a)(d); S.I. 2005/1314, art. 3(a); S.I. 2007/1493, art. 2

Modifications etc. (not altering text)

Marginal Citations

Methods whereby highways may become maintainable at public expenseE+W+S+N.I.

37 Provisions whereby highway created by dedication may become maintainable at public expense.E+W

(1)A person who proposes to dedicate a way as a highway and who desires that the proposed highway shall become maintainable at the public expense by virtue of this section shall give notice of the proposal, not less than 3 months before the date of the proposed dedication, to the council who would, if the way were a highway, be the highway authority therefor, describing the location and width of the proposed highway and the nature of the proposed dedication.

(2)If the council consider that the proposed highway will not be of sufficient utility to the public to justify its being maintained at the public expense, they may make a complaint to a magistrates’ court for an order to that effect.

(3)If the council certify that the way has been dedicated in accordance with the terms of the notice and has been made up in a satisfactory manner, and if—

(a)the person by whom the way was dedicated or his successor keeps it in repair for a period of 12 months from the date of the council’s certificate, and

(b)the way has been used as a highway during that period,

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 satsified 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.

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Modifications etc. (not altering text)

38 Power of highway authorities to adopt by agreement.E+W

(1)Subject to subsection (2) below, where any person is liable under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway, the Minister, 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.

[F99(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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F100

(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.

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Amendments (Textual)

39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F101E+W+S+N.I.

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Amendments (Textual)

40 Adoption of private streets.E+W+S+N.I.

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 [F102, 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.

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Amendments (Textual)

Maintenance of highways maintainable at public expenseE+W+S+N.I.

41 Duty to maintain highways maintainable at public expense.E+W

(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.

[F103(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 him 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 Minister 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 Minister.

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Amendments (Textual)

42 Power of district councils to maintain certain highways.E+W

(1)Subject to Part I of Schedule 7 to this Act, the council of a [F104non-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, 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 [F105section 81 of the Road Traffic Regulation Act 1984] (30 m.p.h. speed limit), or

(ii)are subject to an order [F106made 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 [F107non-metropolitan]district 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.

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Amendments (Textual)

Modifications etc. (not altering text)

43 Power of parish and community councils to maintain footpaths and bridleways.E+W

(1)The council of a parish or community may undertake the maintenance of any footpath or bridleway 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 or bridleway.

(2)The highway authority for any footpath or bridleway which a parish or community council have power to maintain under subsection (1) above, and a [F108non-metropolitan] district council for the time being maintaining any such footpath or bridleway 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 or bridleway.

(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.

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Amendments (Textual)

Modifications etc. (not altering text)

44 Person liable to maintain highway may agree to maintain publicly maintainable highway.E+W+S+N.I.

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.

45 Power to get materials for repair of publicly maintainable highways.E+W+S+N.I.

(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 M8Commons 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 [F109non-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 [F109non-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 [F110non-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 [F110non-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 [F111non-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.

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Amendments (Textual)

Marginal Citations

46 Supplemental provisions with respect to the getting of materials under section 45.E+W

(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 [F112level 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 [F113level 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 [F114level 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.

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Amendments (Textual)

47 Power of magistrates’ court to declare unnecessary highway to be not maintainable at public expense.E+W

(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, [F115footpath, 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 [F116in 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 [F117acting 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 [F118designated 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.

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Amendments (Textual)

F117By Courts Act 2003 (c. 39), s. 109(1), Sch. 8 para. 256(2); S.I. 2005/910, art. 3(y), it is provided that the words "assigned to the local justice area in" in s. 47(5) be substituted (1.4.2005) for the words "acting for the petty sessions for"

Modifications etc. (not altering text)

48 Power of magistrates’ court to order a highway to be again maintainable at public expense.E+W+S+N.I.

(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 highwaysE+W+S+N.I.

49 Maintenance of approaches to certain privately maintainable bridges.E+W+S+N.I.

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.

50 Maintenance of privately maintainable footpaths and bridleways.E+W+S+N.I.

(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 [F119non-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.

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Amendments (Textual)

51 No liability to maintain by reason of enclosure if highway fenced with consent of highway authority.E+W+S+N.I.

(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.

52 Power to get materials for repair of privately maintainable highways.E+W+S+N.I.

(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.

53 Power of magistrates’ court to extinguish liability to maintain privately maintainable highway.E+W+S+N.I.

(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 mgistrates’ 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 M9General Rate Act 1967.

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Marginal Citations

54 Extinguishment of liability to maintain privately maintainable highway diverted by order of magistrates’ court.E+W+S+N.I.

(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.

55 Extinguishment of liability to maintain or improve bridges comprised in trunk roads and special roads.E+W+S+N.I.

(1)Where a highway comprising a bridge becomes a trunk road, and the bridge is transferred to the Minister 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 Minister such sum as may be agreed between them and the Minister 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 Minister 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 Minister 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 the Minister; and accordingly those provisions have effect as if the references therein to a trunk road and to the Minister 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 Minister 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 maintenanceE+W+S+N.I.

56 Proceedings for an order to repair highway.E+W+S+N.I.

(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.

57 Default powers of highway authorities in respect of non-repair of privately maintainable highways.E+W+S+N.I.

(1)Where a person is liable under a special enactment or by reason of tenure, enclosure or prescription to maintan 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.

58 Special defence in action against a highway authority for damages for non-repair of highway.E+W

(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.

F120(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Modifications etc. (not altering text)

Recovery by highway authorities etc. of certain expenses incurred in maintaining highwaysE+W+S+N.I.

59 Recovery of expenses due to extraordinary traffic.E+W+S+N.I.

(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)[F121The county court with jurisdiction to hear and determine a claim for a sum recoverable under this section is] the county court in the district in which the highway or any part of it is situated.

(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.

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Amendments (Textual)

F12260. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

Regulations supplementing maintenance powers of district councilsE+W+S+N.I.

61 Regulations supplementing maintenance powers of district councils.E+W+S+N.I.

The Minister may by regulations empower [F123non-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 [F123non-metropolitan] district councils under those sections, the expressions “maintenance” and “maintain” where used with respect to the powers of [F123non-metropolitan] district councils under those sections, are to be construed as including the carrying out of operations in the exercise of powers conferred on [F123non-metropolitan] district councils by regulations under this section.

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Amendments (Textual)

Part VE+W+S+N.I. Improvement of Highways

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Modifications etc. (not altering text)

C46Pt. V (ss. 62-105) extended (13.2.1992) by Severn Bridges Act 1992 (c. 3), s. 32(2)(a)

General power of improvementE+W

62 General power of improvement.E+W

(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;

[F124(ff)the construction, maintenance and removal of road humps;]

[F125(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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F126

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Amendments (Textual)

Modifications etc. (not altering text)

Relief of main carriageway of trunk road from local trafficE+W+S+N.I.

63 Relief of main carriageway of trunk road from local traffic.E+W+S+N.I.

Without prejudice to section 10(3) above, the Minister 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 tracksE+W+S+N.I.

64 Dual carriageways and roundabouts.E+W

(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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F127

F128(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Modifications etc. (not altering text)

65 Cycle tracks.E+W+S+N.I.

(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 provisionsE+W+S+N.I.

66 Footways and guard-rails etc. for publicly maintainable highways.E+W

(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 [F129or bridleway], such barriers, [F129posts,] 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 Minister, be exercised by the council of a county [F130or metropolitan district] in relation to any part within the county [F130or metropolitan district] but outside Greater London of a highway for which the Minister 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.

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Amendments (Textual)

F129Words in s. 66(3) inserted (13.2.2004 for E. and 1.4.2004 for W.) by 2000 c. 37, s. 70(1); S.I. 2004/292, art. 2(b); S.I. 2004/315, art. 2(b)

67 Guard-rails etc. in private streets.E+W

(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,. . . F131 the Common Council and the Council of the Isles of Scilly [F132but in relation to a street in Wales, means a Welsh council].

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Amendments (Textual)

68 Refuges.E+W+S+N.I.

(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.

69 Subways.E+W

(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 Minister 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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F133

(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 [F134or, 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].

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Amendments (Textual)

70 Footbridges over highways.E+W+S+N.I.

(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.

71 Margins for horses and livestock.E+W+S+N.I.

(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.

WidthsE+W+S+N.I.

72 Widening of highways.E+W

(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 F135. . . 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 or bridleway as they have for the purpose of securing the creation of a footpath or bridleway, and references in those sections to the dedication or creation of a footpath or bridleway 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.

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Amendments (Textual)

F135Words in s. 72(2) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch.24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch..

Modifications etc. (not altering text)

73 Power to prescribe improvement line for widening street.E+W

(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, [F136sewer,] 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 [F137level 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. . . F138 by water undertakers as a pumping station or reservoir for water [F139or 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 M10Local 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.

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

74 Power to prescribe a building line.E+W

(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 [F140water undertakers or sewerage undertakers] to make an excavation for the purpose of laying, altering, maintaining or renewing any main, [F141sewer,] 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 [F142level 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. . . F143 by water undertakers as a pumping station or reservoir for water [F144or 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 M11Local 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.

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

75 Variation of widths of carriageways and footways.E+W+S+N.I.

(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.

LevelsE+W+S+N.I.

76 Levelling of highways.E+W+S+N.I.

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

77 Alteration of levels.E+W+S+N.I.

(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.

CornersE+W+S+N.I.

78 Cutting off of corners.E+W+S+N.I.

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

79 Prevention of obstruction to view at corners.E+W

(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 [F145non-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. . . F146 the Minister, with the consent of the council of that London borough or the Common Council, as the case may require.

[F147(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 a 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 [F148level 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 a 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 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

(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 M12Local 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.

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Amendments (Textual)

Marginal Citations

Fences and boundariesE+W+S+N.I.

80Power to fence highways.E+W+S+N.I.

(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 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 of [F149the Town and Country Planning 1990] (or under any enactment replaced by the said Part III); 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 M13Restriction of Ribbon Development Act 1935.

(4)As respects—

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

(b)land on which the Minister 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 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 but also, where the road or land is outside Greater London, by the council of the county [F150or metropolitan district] in which it is situated, or where the road or land is in Greater London, by. . . F151 the council of the London borough in which it is situated.

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

81 Provision of highway boundary posts.E+W+S+N.I.

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-gridsE+W+S+N.I.

82 Provision of cattle-grids and by-passes.E+W+S+N.I.

(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—

    (a)

    for that traffic, or

    (b)

    if 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.

83 Removal of cattle-grids and discontinuance of by-passes.E+W+S+N.I.

(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.

84 Maintenance of cattle-grids and by-passes.E+W+S+N.I.

(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.

85 Exercise of powers by agreement between neighbouring authorities.E+W+S+N.I.

(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.

86 Supersession of gates by cattle-grids.E+W+S+N.I.

(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.

(2)The highway authority shall on demand repay any expenses reasonably incurred in removing a gate in compliance with a requirement under this section.

(3)Where in pursuance of subsection (1) above a gate has been removed (whether by, or in compliance with a requirement of, the highway authority) and the highway authority subsequently remove the cattle-grid, then, if within 12 months from the date of the removal of the cattle-grid a person reinstalls a gate in the exercise of a right the exercise of which was suspended while the cattle-grid was provided, the highway authority shall on demand repay the expenses reasonably incurred in reinstalling the gate.

(4)No objection shall be made or proceedings brought in respect of the purported exercise by a highway authority of their powers under subsection (1) above as respects a gate or gates on the ground that no right to install the gate or gates existed; but the purported exercise by the authority of their powers under that subsection shall not affect the question whether any such right existed, or prejudice the powers of the highway authority or any other person under any enactment (including an enactment in this Act) or rule of law to protect public rights of way or to prevent or remove obstructions.

87 Agreements for use of land for cattle-grids or by-passes.E+W

(1)A highway authority may, for the purpose of providing, altering or improving a cattle-grid or by-pass under the powers conferred by this Part of this Act, enter into an agreement under this section with persons interested in any land for the use of the land for that purpose; and (without prejudice to the provision of other matters in the agreement) there shall be exercisable by the highway authority and the public such rights over the land as may be specified in the agreement.

(2)An agreement under this section may contain provisions for payment to persons who are parties to it in consideration of the use of the land or otherwise in respect of their entering into the agreement.

(3)The provisions of an agreement under this section bind the interest of any person who is a party to the agreement notwithstanding any devolution of that interest, and also bind any interest of any person which is thereafter created (whether immediately or not) out of that interest; but save as aforesaid an agreement under this section shall not operate so as to prejudice the rights of a person not a party to it or confer upon any other person any right against him.

(4)A tenant for life may enter into an agreement under this section relating to the settled land or any part of it either for consideration or gratuitously, and—

(a)this subsection is to be construed as one with the M14Settled Land Act 1925;

(b)that Act [F152applies] as if the power conferred by this subsection had been conferred by that Act; and

(c)for the purposes of section 72 of the M15Settled Land Act 1925 (disposition by a tenant for life) and of any other relevant statutory provision, entering into an agreement under this section is to be treated as a disposition.

(5)A university or college to which the M16Universities and College Estates Act 1925 applies may enter into an agreement under this section relating to any land belonging to it either for consideration or gratuitously, and that Act applies as if the power conferred by this subsection had been conferred by that Act.

[F153(6)Where land is—

(a)glebe land, the Diocesan Board of Finance in which the land is vested, with the consent of the Church Commissioners (unless such consent would not be required under the Endowments and Glebe Measure 1976 if the transaction were carried out under that Measure),

(b)land belonging to an ecclesiastical benefice of the Church of England, the incumbent of the benefice, with the consent of the Diocesan Board of Finance, or

(c)part of the endowment of any other ecclesiastical corporation, the ecclesiastical corporation, with the consent of the Church Commissioners,

may enter into an agreement under this section relating to the land either for consideration or gratuitously and any payment made in respect of such agreement may be applied for purposes for which the proceeds of a sale by agreement of the property would be applicable under any enactment or Measure authorising such a sale or disposing of the proceeds of such a sale.]

(7)An agreement under this section is a local land charge.

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Amendments (Textual)

F152Word in s. 87(4)(b) substituted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para.19 (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2.

F153S. 87(6) substituted (E.) (1.10.2006) by Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), s. 14, Sch. 5 para. 22(1); {Instrument} dated 11.9.2006 signed by the Archbishops of Canterbury and York

Marginal Citations

88 Contributions towards expenditure of highway authorities.E+W+S+N.I.

(1)A highway authority may enter into an agreement with a person at whose instance a cattle-grid has been or is to be provided by them under this Act, or any other person willing to make a contribution towards expenses of the authority under this Act in connection with a cattle-grid, for the making by that person of such a contribution (whether by a single payment or by periodical payments) of such amount as may be specified in the agreement and either towards all such expenditure of the authority or towards such description of such expenditure as may be so specified.

(2)An agreement under this section may contain such incidental and consequential provisions as appear to the parties to it expedient for the purposes of the agreement, and in particular such an agreement providing for a contribution towards the cost of installing a cattle-grid may provide for repayment of the contribution, to such extent as may be specified in the agreement, in the event of the cattle-grid being removed.

(3)In determining whether or not to provide a cattle-grid, a highway authority shall be entitled to have regard to the extent to which persons who in the opinion of the authority will derive special benefit from the provision of the cattle-grid are willing to enter into agreements under this section.

89 Delegation to certain authorities of functions of Minister.E+W+S+N.I.

(1)Subsections (1) to (4) of section 6 above apply, as respects trunk roads, to the functions of the Minister under the foregoing provisions of this Part of this Act relating to cattle-grids, and to his functions under Schedule 10 to this Act in so far as they are conferred on him as highway authority.

(2)Plant or materials belonging to a council to whom functions are delegated under this section may be used by them for the purposes of those functions, subject to the terms of the delegation.

90 Protection of bridges and railways.E+W+S+N.I.

(1)A highway authority shall not, in the exercise of functions relating to cattle-grids conferred by this Part of this Act, carry out any work in—

(a)so much of a highway as is carried by a bridge maintainable by a person other than the highway authority or so much of a highway as is comprised within the immediate approaches to such a bridge,

(b)so much of a highway passing under such a bridge as is within 10 feet of any part of the bridge or of the foundations of the bridge, or

(c)so much (if any) of a highway passing above a tunnel provided for the purpose of a railway undertaking of railway undertakers as is within 10 feet of any part of the tunnel,

except with the consent of the person liable to maintain the bridge or of the railway undertakers, as the case may be.

(2)Where consent under this section is withheld the highway authority may refer the matter to the Minister and if, after affording to the highway authority and to the said person, or to the railway undertakers, as the case may be, an opportunity of being heard by a person appointed by the Minister for the purpose, and considering his report, the Minister so directs, the work may be carried out notwithstanding that the consent has been withheld but subject to compliance with any conditions which the Minister may impose.

[F154 Road humpsE+W+S+N.I.

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Amendments (Textual)

90A Construction of road humps by highway authority.E+W

(1)A highway authority may construct road humps in a highway maintainable at the public expense for which they are the highway authority if—

(a)the highway is subject to a statutory speed limit for motor vehicles of 30 miles per hour or less; or

(b)[F155(whether or not the highway is subject to such a limit)]the road humps are specially authorised by the Secretary of State, [F156or

(c)(whether or not the highway is subject to such a limit) the road humps fall within section 90CA below.]

and may remove any road humps so constructed by them.

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F157

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Amendments (Textual)

F156S. 90A(1)(c) and the word “or” immediately preceding it inserted (3.7.2000) by 1999 c. 29, s. 268(2) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(2)(c), Sch. Pt. 3

90B Additional powers of the Secretary of State.E+W

(1)The Secretary of State may construct road humps in a highway maintainable at the public expense for which he is not the highway authority if—

(a)the highway is subject to a statutory speed limit for motor vehicles of 30 miles per hour or less; or

(b)[F158(whether or not the highway is subject to such a limit)]the road humps are specially authorised by him,

and may maintain and remove any road humps so constructed by him.

(2)The consent of the local highway authority for the highway concerned is required for the construction of road humps under this section. . . F159

(3)The Secretary of State and the local highway authority may enter into an agreement for the carrying out by the local highway authority of any works which the Secretary of State has power to carry out under this section.

(4)Subject to subsection (5) below, the consent of the Secretary of State is required before the local highway authority or any other person having power to maintain the highway may remove or otherwise interfere with a road hump constructed under this section.

(5)If the Secretary of State so directs with the consent of the local highway authority the local highway authority shall have the same powers in relation to a road hump constructed under this section as they have in relation to a road hump constructed by them under section 90A above.

(6)Where a road hump has been constructed under this section, the local highway authority and any other person having power to maintain the highway may reimburse the Secretary of State the whole or part of his expenses in relation to the road hump.

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Amendments (Textual)

90C Consultation and local inquiries.E+W+S+N.I.

(1)Where the Secretary of State or a local highway authority propose to construct a road hump under section 90A or 90B above, he or they shall consult with—

(a)the chief officer of police for the area in which the highway concerned is situated; and

(b)such other persons or bodies as may be prescribed by regulations made by the Secretary of State.

(2)The Secretary of State or local highway authority shall also—

(a)publish in one or more newspapers circulating in the area in which the highway concerned is situated; and

(b)place at appropriate points on that highway,

a notice of the proposal stating the nature, dimensions and location of the proposed road hump and the address to which and the period within which any objections to the proposal may be sent.

(3)The period stated in a notice under subsection (2) above shall be not less than 21 days beginning with the date on which the notice is first published in accordance with paragraph (a) of that subsection.

(4)The Secretary of State or local highway authority shall consider any objections sent to him or them in accordance with a notice under subsection (2) above and may, if he or they think fit, cause a local inquiry to be held.

(5)Subsections (2) to (5) of section 250 of the Local Government Act 1972 (provisions as to inquiries) have effect in relation to an inquiry held under subsection (4) above as they have effect in relation to an inquiry held under that section, but with such modifications as may be prescribed by regulations made by the Secretary of State.

(6)Before making regulations under this section the Secretary of State shall consult such representative organisations as he thinks fit.

90CA Special procedure for certain road humps in London.E+W

(1)A road hump falls within this section if—

(a)it is constructed by a local highway authority in Greater London, and

(b)the requirements of subsections (2) and (3) below have been complied with.

(2)The requirement of this subsection is that before starting to construct the road hump the authority concerned gives the Secretary of State notice stating—

(a)the nature, dimensions and location of the proposed road hump,

(b)the spacing between the proposed road hump and any other humps constructed, or proposed to be constructed, in the vicinity,

(c)the type and description of signs which are proposed to be located in the highway in connection with the proposed hump,

(d)the statutory speed limit for motor vehicles to which the highway where it is proposed to construct the hump is subject, and

(e)the period (of not less than one month) within which, and the address to which, the Secretary of State may send any comments on the proposal to the authority.

(3)The requirement of this subsection is that in deciding—

(a)whether to proceed with the construction of the road hump, and

(b)what the nature, dimensions and location of the road hump as constructed are to be,

the authority concerned has regard to any comments made by the Secretary of State within the period stated in the notice.]

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Amendments (Textual)

90D Regulations concerning construction and maintenance of road humps.E+W

(1)The Secretary of State may by regulations make such provision in relation to the construction and maintenance of road humps as appears to him to be necessary or expedient in the interests of safety and the free movement of traffic, and may in particular—

(a)provide that road humps shall be constructed only in highways of such descriptions and in such circumstances as may be prescribed by the regulations;

(b)impose requirements as to—

(i)the nature, dimensions, location and spacing of road humps;

(ii)the placing of signs of such type or character as may be so prescribed;

(iii)the carrying out and maintenance of other ancillary or consequential works.

(2)Regulations under this section may make different provision for different cases, as for example for road humps and highways of different descriptions.

(3)Before making any regulations under this section the Secretary of State shall consult with such representative organisations as he thinks fit.

(4)Regulations under this section do not apply where a road hump is specially authorised by the Secretary of State, but conditions attached by him to the authorisation may, in particular, relate to any of the matters with respect to which regulations may be made under this section.

[F161(5)Regulations under this section do not apply where a road hump falls within section 90CA above.]

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Amendments (Textual)

F161S. 90D(5) inserted (3.7.2000) by 1999 c. 29, s. 268(4), (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(2)(c), Sch. Pt. 3

90E Status of road humps.E+W

(1)[F162Where the requirements of subsections (1A), (1B) or (1C) are satisfied in relation to a road hump], the road hump shall not be treated as constituting an obstruction to the highway but as part of the highway, so that in particular—

(a)the obligation of any person to maintain the highway; and

(b)the obligation of any person having power to break open the highway to make good any damage or otherwise reinstate the highway,

extend to maintaining or, as the case may be, making good any damage to or otherwise reinstating the road hump.

[F163(1A)The requirements of this subsection are that—

(a)regulations under section 90D above apply to the road hump,

(b)the road hump conforms to the regulations, and

(c)if the road hump is in a highway maintainable at the public expense, the conditions mentioned in subsection (2) below are satisfied.

(1B)The requirements of this subsection are that—

(a)the road hump is specially authorised by the Secretary of State,

(b)the road hump conforms with the conditions attached to the authorisation, and

(c)if the road hump is in a highway maintainable at the public expense, the conditions mentioned in subsection (2) below are satisfied.

(1C)The requirements of this subsection are that—

(a)the road hump falls within section 90CA, and

(b)if the road hump is in a highway maintainable at the public expense, the condition mentioned in subsection (2)(a) below is satisfied.]

(2)The further conditions applicable in the case of a road hump in a highway maintainable at the public expense are—

(a)that the highway is for the time being subject to a statutory speed limit for motor vehicles of 30 miles per hour or less or the road hump is specially authorised by the Secretary of State; and

(b)that the road hump was constructed under section 90A or 90B above or was constructed at a time when the highway was not maintainable at the public expense.

F164(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F165(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

90F Meaning of “road hump” and interpretation of sections 90A to 90E.E+W

(1)In this Act “road hump” means an artificial hump in or on the surface of the highway which is designed to control the speed of vehicles, and references to a road hump include references to any other works (including signs for lighting) required in connection with such a hump.

(2)In sections 90A to 90E above—

motor vehicle” has the same meaning as in the Road Traffic Regulation Act [F1661984]; and

[F167statutory speed limit” means a speed limit having effect by virtue of an enactment other than section 84(1)(b) or (c) of the Road Traffic Regulation Act 1984 (temporary and variable speed limits).]]

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Amendments (Textual)

F167S. 90F(2): definition 'statutory speed limit' substituted (1.7.1992) for definition of 'statutory' by Road Traffic Act 1991 (c. 40, SIF 107:1), s. 48, Sch. 4 para.13; S.I. 1992/1286, art. 2,Sch.

[F168Other traffic calming worksE+W

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Amendments (Textual)

F168Ss. 90G-90I and cross-heading inserted (16.5.1992) by Traffic Calming Act 1992 (c. 30), ss. 1(2), 3, Sch. 1

F16990G Powers to carry out traffic calming works.E+W

(1)A highway authority may, in a highway maintainable at the public expense for which they are the highway authority, construct traffic calming works which—

(a)are of a description prescribed by regulations under section 90H below, or

(b)are specially authorised by the Secretary of State, [F170or

(c)fall within section 90GA below,]]

and may remove such works (whenever constructed).

(2)A highway authority shall not exercise the powers conferred by [F171subsection (1)(a) or (b)] above except in accordance with any requirements imposed by the regulations or authorisation concerned.

(3)Requirements imposed by a special authorisation given by the Secretary of State under this section may relate to any matter with respect to which regulations may be made under section 90H below.

(4)Nothing in this section shall prejudice any power of a highway authority to construct or remove traffic calming works which are neither of a description prescribed by regulations under section 90H below nor specially authorised by the Secretary of State.

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Amendments (Textual)

F169Ss. 90G-90I and cross-heading inserted (16.5.1992) by Traffic Calming Act 1992 (c. 30), ss. 1(1), 3, Sch. 1

F170S. 90G(1)(c) and the word “or” immediately preceding it inserted (3.7.2000) by 1999 c. 29, s. 269(2) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(2)(c), Sch. Pt. 3

F171Words in s. 90G(2) expressed to be inserted (3.7.2000) by 1999 c. 29, s. 269(3) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(2)(c), Sch. Pt. 3

90GAF172 Special procedure for certain traffic calming works in London.E+W

(1)Traffic calming works fall within this section if—

(a)the works are constructed by a local highway authority in Greater London, and

(b)the requirements of [F173subsections (2), (3) and (4)] below have been complied with.

(2)The requirement of this subsection is that before starting to construct the works the authority concerned gives the Secretary of State notice stating—

(a)the nature, dimensions and location of the proposed works,

(b)the type and description of signs which are proposed to be located in the highway in connection with the proposed hump, and

(c)the period (of not less than one month) within which, and the address to which, the Secretary of State may send any comments on the proposal to the authority.

(3)The requirement of this subsection is that in deciding—

(a)whether to proceed with the construction of the works, and

(b)what the nature, dimensions and location of the works as constructed are to be,

the authority concerned has regard to any comments made by the Secretary of State within the period stated in the notice.

[F174(4)The requirement of this subsection is that the authority concerned complies with such requirements as to consultation and publicity as may be prescribed by regulations made by the Secretary of State.]

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Amendments (Textual)

F173Words in s. 90GA(1)(b) substituted (27.5.2000) by S.I. 2000/1435, art. 2, Sch. Pt. I para. 7(3)

F17590H Prescribing of works.E+W

(1)The Secretary of State may make regulations—

(a)prescribing any description of traffic calming works for the purposes of section 90G above, and

(b)making such provision (if any) as appears to him necessary or expedient in relation to the construction, maintenance and removal of works of a prescribed description.

(2)Regulations under this section may in particular—

(a)provide that works of a prescribed description shall be constructed only in highways of such descriptions and in such circumstances as may be prescribed by the regulations;

(b)impose requirements as to—

(i)the dimensions and location of works;

(ii)the placing of signs;

(iii)the carrying out and maintenance of ancillary or consequential works;

(c)impose requirements as to consultation and publicity in respect of proposed works.

[F176(d)provide that, in such cases or circumstances as the regulations may specify, works may be constructed or removed only with the consent of a police officer of such class as the regulations may specify.]

(3)Regulations under this section may make different provision for different cases.

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Amendments (Textual)

F175Ss. 90G-90I and cross-heading inserted (16.5.1992) by Traffic Calming Act 1992 (c. 30), ss. 1(1), 3, Sch. 1

F17790I Status of works authorised by section 90G.E+W

[F178(1)Works (whenever constructed) to which this subsection applies] shall not be treated as constituting an obstruction to the highway but as part of the highway, so that in particular—

(a)the obligation of any person to maintain the highway, and

(b)the obligation of any person having power to break open the highway to make good any damage or otherwise reinstate the highway,

extend to maintaining or, as the case may be, making good any damage to or otherwise reinstating the works.

[F179(2)Subsection (1) above applies—

(a)to works of a description prescribed by regulations under section 90H above or specially authorised under section 90G above which conform to any requirements imposed by the regulations or authorisation, and

(b)to works which fall within section 90GA above.]

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Amendments (Textual)

F177Ss. 90G-90I and cross-heading inserted (16.5.1992) by Traffic Calming Act 1992 (c. 30), ss. 1(2), 3, Sch. 1

Construction, reconstruction, improvement etc. of bridgesE+W+S+N.I.

91 Construction of bridge to carry existing highway maintainable at public expense.E+W+S+N.I.

A highway authority may construct a bridge to carry a highway maintainable at the public expense but the Minister shall not construct such a bridge without the approval of the Treasury.

92 Reconstruction of bridge maintainable at public expense.E+W+S+N.I.

Without prejudice to any other powers they have under this Part of this Act, a highway authority may reconstruct a bridge which is a highway maintainable at the public expense by them, either on the same site or on a new site within 200 yards of the old one.

93 Power to make orders as to reconstruction, improvement, etc., of privately maintainable bridges.E+W

(1)If the owners of a bridge to which this section applies or a local highway authority entitled by virtue of section 95 below to exercise with respect to such a bridge the powers conferred by this section consider—

(a)that the bridge is or may be, by reason of its construction, position, or state of repair, dangerous or unsuitable for the requirements of road traffic as then existing or the expected development thereof, or

(b)that the responsibility for the maintenance and improvement of the highway carried by the bridge or of the approaches to it should for any reason be transferred from the owners to a highway authority,

the owners or the authority may apply to the Minister for an order to provide for the reconstruction, improvement or maintenance of the bridge, or of the highway carried by the bridge, or of the approaches to the bridge.

(2)Where an application is made to the Minister under subsection (1) above, he may, subject to the provisions of this section, make an order under this section, but before making such an order he shall consult the owners of the bridge and every local highway authority entitled to exercise with respect to it the powers conferred by this section, and if either the owners or any such local highway authority request him so to do shall hold an inquiry.

(3)Subject to the provisions of this section, the Minister may by an order made under this section—

(a)require the execution, either by the owners or by a highway authority, of such works of reconstruction or improvement as may be specified in the order;

(b)determine and direct by whom the bridge, the highway carried by the bridge and the approaches to the bridge are to be maintained;

(c)provide for the transfer to and vesting in a highway authority of the property in the bridge, or the highway carried by the bridge, or the approaches to the bridge, and of all or any rights and obligations attaching to the bridge, or to such highway or approaches;

(d)in the case of a swing bridge, determine and direct by whom and in what manner it is to be operated;

(e)modify, so far as he considers necessary for giving effect to the order, any statutory provisions applicable to the bridge other than the provisions of a public general Act;

(f)make such incidental, consequential and supplementary provisions, including provisions authorising the owners of the bridge or a highway authority to construct works which are necessary to enable them to comply with a requirement or direction contained in the order, as may appear to him to be necessary or proper for the purposes of the order.

(4)Subject to the provisions of this section, the Minister may, on his own initiative and without any application under subsection (1) above, make an order under this section with respect to a trunk road bridge if, on such grounds as are referred to in subsection (1) above, it seems to him fit and proper so to do; but, before making such an order, he shall consult the owners of the bridge (unless after diligent inquiry their names and addresses cannot be ascertained), and, if the owners request him so to do, shall hold an inquiry.

(5)In relation to an order made under this section with respect to a trunk road bridge, subsection (3)(c) above has effect with the substitution, for the reference to a highway authority, of a reference to the Minister.

(6)Subject to section 95(9) below, this section applies to any bridge (other than a highway maintainable at the public expense) which carries a highway consisting of or comprising a carriageway over a railway, over a canal, river, creek, watercourse, marsh or other place where water flows or is collected or over a ravine or other depression, other than a bridge to which a right to levy tolls is attached.

(7)Schedule 11 to this Act has effect in relation to the making and carrying out of orders under this section.

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Modifications etc. (not altering text)

C56Ss. 93-95 modified (22.7.2008) by Transport for London Act 2008 (c. i), ss. 1, 33 (with s. 48)

94 Powers of highway authorities and bridge owners to enter into agreements.E+W

(1)A highway authority may agree with the owners of a bridge to which this section applies and with respect to which the highway authority are entitled by virtue of section 95 below to exercise the powes conferred by this section—

(a)for the payment by the highway authority of contributions towards the cost of the reconstruction, improvement or maintenance of the bridge, or of the highway carried by the bridge, or of the approaches to the bridge;

(b)for the transfer to the highway authority, on such terms as may be agreed, of the responsibility for the improvement and maintenance of the highway carried by the bridge, or of the approaches to it;

(c)for the transfer to the highway authority, on such terms as may be agreed, of the property in the bridge, the highway carried by the bridge, and the approaches to the bridge, and of all or any rights and obligations attaching to the bridge, or to such highway or approaches;

and the owners of the bridge may enter into and carry into effect any such agreement, notwithstanding that the bridge was constructed under statutory powers.

(2)Subject to section 95(9) below, this section applies to any bridge (other than a highway maintainable at the public expense) which carries a highway over a railway or highway, over a canal, river, creek, watercourse, marsh or other place where water flows or is collected or over a ravine or other depression.

(3)Where an agreement made under this section provides for the transfer to the highway authority of rights or obligations attaching to a bridge, then as from the date of the transfer the highway authority may exercise the rights transferred and shall, to the exclusion of the owners, be subject to the obligations transferred.

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Modifications etc. (not altering text)

C57Ss. 93-95 modified (22.7.2008) by Transport for London Act 2008 (c. i), ss. 1, 33 (with s. 48)

95 Supplemental provisions as to orders and agreements under sections 93 and 94.E+W

(1)Subject to subsection (2) below, the powers conferred by sections 93 and 94 above on a highway authority or a local highway authority are exercisable-

(a)in the case of a bridge outside Greater London, by the council of the county [F180or metropolitan district] in which the bridge is situated;

(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F181

(c)in the case of [F182a] bridge in Greater London, by the council of the borough in which it is situated, or, if it is in the City, by the Common Council.

(2)In the case of a trunk road bridge, the powers conferred on a highway authority by section 94 above are exercisable by the Minister; and neither those powers nor the powers conferred on a local highway authority by section 93 above are exercisable with respect to such a bridge by a local highway authority.

(3)Where a bridge other than a trunk road bridge is situated partly in one area and partly in another, the powers conferred by sections 93 and 94 above on a highway authority or a local highway authority are exercisable by the council who, by virtue of section 3 above, are the highway authority for the whole of the bridge or, if there is no such highway authority, by any council who could have exercised those powers if their area had included the whole of the bridge.

(4)For the purposes of the foregoing provisions of this section, the highway carried by a bridge, and the approaches to the bridge, are to be deemed to be part of the bridge.

(5)Where—

(a)a bridge crossing a railway is owned by railway undertakers and the railway is leased to other such undertakers, or

(b)a bridge crossing a canal is owned by canal undertakers and the canal is leased to other such undertakers,

references in sections 93 and 94 above and in this section to the owners of the bridge, railway or canal include references to those other undertakers.

(6)Nothing in sections 93 and 94 above or in this section or in any order made under section 93 above, authorises the stoppage of traffic on a canal without the consent of the canal owners, and a highway authority carrying out works authorised by any of the said sections, or by any such order, with respect to a bridge crossing a canal shall take such steps as may be necessary to prevent, so far as practicable, interference with traffic on the canal.

(7)The consent of the owners of a canal to the temporary stoppage of traffic on it pursuant to subsection (6) above shall not be unreasonably withheld, and any question whether the withholding of such a consent is unreasonable shall be determined by the Minister.

(8)In sections 93 and 94 above and in this section—

  • approaches” in relation to a bridge, means approaches for the maintenance of which the owners of the bridge are responsible and which connect the bridge to the highway maintainable at the public expense;

  • trunk road bridge” means a bridge the highway over which is a trunk road or partly a trunk road;

  • canal” includes inland navigation;

and for the purposes of the said sections the towing path of a canal is to be deemed to form part of the canal.

(9)Sections 93 and 94 above and this section do not apply to any bridge which crosses the Manchester Ship Canal and is owned by the Manchester Ship Canal Company.

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Amendments (Textual)

Modifications etc. (not altering text)

C58Ss. 93-95 modified (22.7.2008) by Transport for London Act 2008 (c. i), ss. 1, 33 (with s. 48)

Miscellaneous improvementsE+W+S+N.I.

[F18395A Power to install equipment for detection of traffic offences.E+W

A highway authority may install and maintain on or near a highway structures and equipment for the detection of traffic offences.]

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Amendments (Textual)

96 Powers of highway and local authorities to plant trees, lay out grass verges, etc.E+W+S+N.I.

(1)Subject to the provisions of this section, a highway authority may, in a highway maintainable at the public expense by them, plant trees and shrubs and lay out grass verges, and may erect and maintain guards or fences and otherwise do anything expedient for the maintenance or protection of trees, shrubs and grass verges planted or laid out, whether or not by them, in such a highway.

(2)A highway authority may alter or remove any grass verge laid out, whether or not by them, in a highway maintainable at the public expense by them and any guard, fence or other thing provided, whether or not by them, for the maintenance or protection of any tree, shrub or verge in such a highway.

(3)Subject to the following provisions of this section, a highway authority may exercise the like powers as are conferred by subsections (1) and (2) above on any land acquired in exercise of powers conferred on them by section 239(2) to (4) below, notwithstanding that the land does not form part of a highway.

(4)A local authority, if they are not the highway authority for a highway maintainable at the public expense in their area, may, with the consent of the highway authority, exercise with respect to that highway any of the powers conferred by subsections (1) and (2) above on the highway authority.

(5)Subject to the restrictions for the time being imposed by any enactment on their expenditure, the council of a parish or community may, with the consent of the highway authority for a highway maintainable at the public expense in the parish or community, exercise with respect to that highway any of the powers conferred by subsections (1) and (2) above on the highway authority.

(6)No tree, shrub, grass verge, guard or fence shall be planted, laid out or erected under this section, or, if planted, laid out or erected under this section, allowed to remain, in such a situation as to hinder the reasonable use of the highway by any person entitled to use it, or so as to be a nuisance or injurious to the owner or occupier of premises adjacent to the highway.

(7)If damage is caused to the property of any person by anything done in exercise of the powers conferred by this section, that person is entitled, subject to subsection (8) below, to recover compensation for it from the authority or parish or community council by whom the powers were exercised.

(8)A person is not entitled to compensation under subsection (7) above if his negligence caused the damage; and if his negligence contributed to the damage the compensation under that subsection shall be reduced accordingly.

(9)Any two or more highway 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.

(10)References in this section to trees or shrubs are to be construed as including references to plants of any description.

97 Lighting of highways.E+W+S+N.I.

(1)The Minister and every local highway authority may provide lighting for the purposes of any highway or proposed highway for which they are or will be the highway authority, and may for that purpose—

(a)contract with any persons for the supply of gas, electricity or other means of lighting; and

(b)construct and maintain such lamps, posts and other works as they consider necessary.

(2)A highway authority may alter or remove any works constructed by them under this section or vested in them under Part III of the M17Local Government Act 1966 or section 270 below.

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

(4)Section 45 of the M18Public Health Act 1961 (attachment of street lamps to buildings) and section 81 of that Act (summary recovery of damages for negligence) apply to a highway authority who are not a council of a kind therein mentioned as they apply to such a council.

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Marginal Citations

98 Delegation of lighting functions of highway authority.E+W+S+N.I.

(1)A highway authority may agree with a lighting authority for the delegation to the lighting authority of any of the functions of the highway authority with respect to the lighting of any highway or part of a highway within the area of the lighting authority.

(2)A lighting authority shall, in the discharge of any functions delegated to them under subsection (1) above, act as agents for the highway authority; and it shall be a condition of the delegation—

(a)that the works to be executed or expenditure to be incurred by the lighting authority in the discharge of the delegated functions are to be subject to the approval of the highway authority;

(b)that the lighting authority are to comply with any requirement of the highway authority as to the manner in which any such works are to be carried out, and with any directions of the highway authority as to the terms of contracts to be entered into for the purposes of the discharge of the delegated functions; and

(c)that any such works are to be completed to the satisfaction of the highway authority.

(3)If at any time the highway authority are satisfied that a lighting system in respect of which the functions of that authority are delegated under this section is not in proper repair or condition, they may give notice to the lighting authority requiring them to place it in proper repair or condition, and if the notice is not complied with within a reasonable time may themselves do anything which seems to them necessary to place the system in proper repair or condition.

(4)A highway authority may agree with a lighting authority for the carrying out by the lighting authority of any works in connection with a lighting system provided or to be provided by the highway authority within the area of the lighting authority; and subsections (2) and (3) above apply to the conditions to be included in and to the discharge of functions pursuant to any such agreement, as they apply to the conditions to be attached to a delegation of functions under subsection (1) above and the discharge of functions so delegated.

(5)A delegation to a lighting authority under this section may be determind by notice given to that authority by the highway authority during the first 9 months of any calendar year, and functions delegated to a lighting authority under this section may be relinquished by notice given by that authority to the highway authority during any such period; and any such notice shall take effect as from 1st April in the calendar year following that in which it is given.

99 Metalling of highways.E+W+S+N.I.

A highway authority may, in relation to a highway maintainable at the public expense by them, execute works for the conversion of the highway into a metalled highway.

100 Drainage of highways.E+W

(1)The highway authority for a highway may, for the purpose of draining it or of otherwise preventing surface water from flowing on to it, do all or any of the following:—

(a)construct or lay, in the highway or in land adjoining or lying near to the highway, such drains as they consider necessary;

(b)erect barriers in the highway or in such land as aforesaid to divert surface water into or through any existing drain;

(c)scour, cleanse and keep open all drains situated in the highway or in such land as aforesaid.

(2)Where under subsection (1) above a drain is constructed or laid, or barriers are erected, for the purpose of draining surface water from a highway or, as the case may be, diverting it into an existing drain, the water may be discharged into or through that drain and into any inland waters, whether natural or artificial, or any tidal waters.

(3)A highway authority shall pay compensation to the owner or occupier of any land who suffers damage by reason of the exercise by the authority of any power under subsection (1) or (2) above.

(4)If a person, without the consent of the highway authority, alters, obstructs or interferes with a drain or barrier which has been constructed, laid or erected by the authority in exercise of their powers under subsection (1) above, or which is under their control, then—

(a)the authority may carry out any work of repair or reinstatement necessitated by his action and may recover from him the expenses reasonably incurred by them in so doing, and

(b)without prejudice to their right to exercise that power, he is guilty of an offence and liable to a fine not exceeding three times the amount of those expenses.

(5)Without prejudice to their powers under the foregoing provisions of this section, a highway authority may, for the purpose of the drainage of a highway or proposed highway for which they are or, as the case may be, will be the highway authority, exercise any powers exercisable by a [F184sewerage undertaker under[F185sections 158, 159, 163, 165 and 168 of the Water Industry Act 1991]for the purposes of the drainage of highways within the area of that undertaker].

(6)Where the highway authority are a county council they shall, before exercising any powers [F186under[F185sections 158, 159, 163, 165 and 168 of the Water Industry Act 1991]] by virtue of subsection (5) above, give notice of their intention to do so to the district council, and the [F186sewerage undertaker] within whose area the powers are proposed to be exercised [F187; and where the highway authority are a metropolitan district council they shall, before so exercising any powers under that Act, give such notice to the [F186sewerage undertaker] within whose area the powers are proposed to be exercised.]

[F188(6A)In subsection (6) above, “the district council” shall be read, in relation to Wales, as “the Welsh council”.

(6B)Where the highway authority are a Welsh council—

(a)subsection (6) above does not apply; but

(b)before exercising any powers under sections 158, 159, 163, 165 and 168 of the M19Water Industry Act 1991 by virtue of subsection (5) above, they shall give notice of their intention to do so—

(i)to the sewerage undertaker; and

(ii)where they propose to exercise those powers outside their county or county borough, to the Welsh council or, as the case may be, the district council

within whose area the powers are proposed to be exercised.]

(7)A person who is liable to maintain a highway by reason of tenure, enclosure or prescription shall, for the purpose of draining it, have the like powers as are conferred on a highway authority by subsections (1) and (2) above for that purpose, and subsections (3) and (4) above shall have effect in relation to a highway so maintainable as if references therein to a highway authority and to subsection (1) or (2) above included references to the person liable to maintain that highway and to this subsection respectively.

(8)This section is without prejudice to any enactment the purpose of which is to protect water against pollution.

(9)In this section—

  • drain” includes a ditch, gutter, watercourse, soak-away, bridge, culvert, tunnel and pipe; and

  • owner”, in relation to any land, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple in the land, whether in possession or in reversion, and includes also a person holding or entitled to the rents and profits of the land under a lease the unexpired term of which exceeds 3 years.

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Amendments (Textual)

Marginal Citations

101 Power to fill in roadside ditches etc.E+W+S+N.I.

(1)If it appears to the highway authority for any highway that a ditch on land adjoining or lying near to the highway constitutes a danger to users of the highway, the authority may—

(a)if they consider the ditch unnecessary for drainage purposes and any occupier of the land known to the authority agrees in writing that it is unnecessary for those purposes, fill it in; or

(b)place in the ditch, or in land adjoining or lying near to it, such pipes as they consider necessary in substitution for the ditch, and thereafter fill it in.

(2)A highway authority shall pay compensation to the owner or occupier of any land who suffers damage by reason of the exercise by the authority of any power under subsection (1) above.

(3)If a person, without the consent of the highway authority, opens up or keeps open any ditch which has been filled in under subsection (1) above (except as may be reasonably necessary for the purpose of doing work on any pipes placed in the ditch), then—

(a)the authority may carry out any work of repair or reinstatement necessitated by his action and may recover from him the expenses reasonably incurred by them in so doing; and

(b)without prejudice to their right to exercise that power, he is guilty of an offence and liable to a fine not exceeding three times the amount of those expenses.

(4)Nothing in section 263 of the M20Public Health Act 1936 (which prohibits the culverting of watercourses in certain districts without the approval of the local authority) applies to anything done under subsection (1) above.

(5)A highway authority shall not exercise their powers under subsection (1) above in such a manner as to be likely to cause damage to or affect the drainage of any land or works used for the purposes of a railway or canal undertaking, except—

(a)after giving not less than 14 days’ notice to the undertakers of the manner in which it is proposed to exercise those powers; and

(b)in accordance with any reasonable requirements of the undertakers of which notice is given to the authority within 14 days from the date of service of the authority’s notice;

and any question whether any such requirement is reasonable shall, in default of agreement, be determined by the Minister.

(6)In this section, “ditch” includes a watercourse and any part of a ditch or watercourse, and “pipes” including culverts, tunnels and other works.

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Marginal Citations

102 Provision of works for protecting highways against hazards of nature.E+W+S+N.I.

(1)The highway authority for a highway maintainable at the public expense may provide and maintain such barriers or other works as they consider necessary for the purpose of affording to the highway protection against snow, flood, landslide or other hazards of nature; and those works may be provided on the highway or on land which, or rights over which, has or have been acquired by the highway authority in the exercise of highway land acquisition powers for that purpose.

(2)The powers conferred by subsection (1) above to provide any works shall include power to alter or remove them.

(3)A highway authority shall pay compensation to any person who suffers damage by reason of the execution by them under this section of any works on a highway.

103 Provision of posts to indicate depth of flood water.E+W

(1)It shall be the duty of a highway authority to provide, in connection with any highway for which they are the highway authority and which is subject to flooding to any considerable depth, graduated posts or stones in any case where they consider the provision thereof necessary or desirable for the purpose of indicating the depth of water covering the highway.

(2)A highway authority may alter or remove any post or stone provided by them under this section.

104 Mitigating nuisance of dust.E+W+S+N.I.

A highway authority may, in relation to a highway maintainable at the public expense by them, treat the highway for mitigating the nuisance of dust.

105 Power to improve road-ferries.E+W+S+N.I.

A highway authority may improve any road-ferry provided by them under this Act.

[F189PART VA E+WENVIRONMENTAL IMPACT ASSESSMENTS

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Amendments (Textual)

F189Pt. VA substituted (13.3.1999) by S.I. 1999/369, reg.2

F190105A Environmental impact assessments.E+W

(1)In this Part–

  • F191. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “Annex” means an Annex to the Directive; F192. . .

    • [F193the Directive” means Council Directive No. 85/337/EEC M21 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive No. 97/11/EC M22 and Directive No. 2003/35/EC M23 of the European Parliament and Council;

    • member of the public” includes any body of persons corporate or unincorporate;

    • public authority” means any authority or other body on which functions are conferred by or under an enactment, including an enactment comprised in, or an instrument made under, an Act of the Scottish Parliament; and]

  • “relevant project” means a project for constructing or improving a highway where the area of the completed works together with any area occupied during the period of construction or improvement by requisite apparatus, equipment, machinery, materials, plant, spoil heaps or other such facilities exceeds 1 hectare or where any such area is situated in whole or in part in a sensitive area.

(2)If the Secretary of State is considering a project for constructing or improving a highway for which he is the highway authority he must, before details of the project are published, determine whether or not it falls within Annex I or II.

(3)If the Secretary of State–

(a)considers that the project falls within Annex I, or

(b)considers that it is a relevant project falling within Annex II and determines, having regard to the selection criteria contained in Annex III, that it should be made subject to an environmental impact assessment in accordance with the Directive,

he must, not later than the date when details of the project are published, [F194prepare an environmental statement and publish notice of it in accordance with subsections (3), (3A) and (7) of section 105B] .

(4)To the extent to which the Secretary of State considers–

(a)that it is relevant to the specific characteristics of the project and of the environmental features likely to be affected by it, and

(b)that the information may reasonably be gathered (having regard among other matters to current knowledge and methods of assessment),

the environmental statement must contain the information referred to in Annex IV.

(5)That information must include at least–

(a)a description of the project (comprising information on the site, design and size of the project);

(b)a description of the measures envisaged in order to avoid, reduce, and, if possible, remedy significant adverse effects;

(c)the data required to identify and assess the main effects which the project is likely to have on the environment;

(d)an outline of the main alternatives studied by the Secretary of State and an indication of the main reasons for his choice (taking into account the environmental effects);

(e)a non-technical summary of the information mentioned in paragraphs (a) to (d).

(6)“Sensitive area” means any of the following:–

[F195(a)a site of special scientific interest (within the meaning of the Wildlife and Countryside Act 1981);]

(b)land adjacent to such an area that is notified to the local planning authority in accordance with paragraph (u)(ii) in the table in article 10 of the Town and Country Planning (General Development Procedure) Order 1995 M24;

F196(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)a National Park within the meaning of the M25National Parks and Access to the Countryside Act 1949 M26;

[F197(e)an area of outstanding beauty designated as such under section 82 of the Countryside and Rights of Way Act 2000.]

(f)the Broads as defined in the M27Norfolk and Suffolk Broads Act 1988 M28;

(g)a property appearing on the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage. M29;

(h)a scheduled monument within the meaning of the M30Ancient Monuments and Archaeological Areas Act 1979 M31;

(i)a European site within the meaning of [F198the Conservation of Habitats and Species Regulations 2010 (see regulation 8)].

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F190Pt. VA substituted (13.3.1999) by S.I. 1999/369, reg. 2

F191S. 105A(1): definition of "the Directive" omitted (26.4.2007) by virtue of The Highways (Environmental Impact Assessment) Regulations 2007 (S.I. 2007/1062), reg. 2(2)(a) (with reg. 7)

F193S. 105A(1): definitions of "the Directive", "member of the public" and "public authority" inserted (26.4.2007) by The Highways (Environmental Impact Assessment) Regulations 2007 (S.I. 2007/1062), reg. 2(2)(b) (with reg. 7)

Marginal Citations

M21OJ No L 175, 5.7.85, p 40.

M22OJ No L 73, 14.3.97, p 5.

M23OJ No L 156, 25.6.03, p 17.

M281988 (c. 4).

M29See Command Paper 9424.

M311979 c. 46. See the definition in section 1(11).

F199105B ProcedureE+W

(1)The Secretary of State must ensure that any determination made by him as to whether or not a relevant project should be made subject to an environmental impact assessment in accordance with the Directive is published.

(2)F200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)[F201Notice of the] environmental statement must be published so as to ensure that members of the public who are likely to be concerned are given a reasonable opportunity to express their opinion before the Secretary of State decides whether to proceed with the construction or improvement to which the assessment relates.

[F202(3A)The notice must state—

(a)that the Secretary of State, as the relevant highway authority, is considering implementing the project;

(b)the proposed location and nature of the project;

(c)that the project is subject to the environmental impact assessment procedure required by this Part of this Act and, where relevant, that section 105C applies;

(d)that a copy of the environmental statement may be inspected at an address in the area in which the project is proposed to be situated during the period specified under paragraph (i);

(e)the times at which the copy of the environmental statement may be so inspected;

(f)an address from which copies of the environmental statement may be obtained and from which further information about the project may be requested during the period specified under paragraph (i);

(g)if a charge is to be made for a copy of the environmental statement, the amount of the charge;

(h)if the Secretary of State uses a website for the publication of information about projects that are subject to the procedure required by this Part of this Act, that a copy of the environmental statement may be inspected on the website during the period specified under paragraph (i);

(i)that any person wishing to make any representations about the project and the environmental statement may do so in writing to the Secretary of State at a specified address within a specified period, being not less than 6 weeks from the date of publication of the notice and

(j)that the Secretary of State will take into consideration any representations so made before deciding whether or not to proceed with the project with or without modifications.

(3B)The Secretary of State shall ensure that during the period specified under subsection (3A) (i)—

(a)copies of the environmental statement are available for inspection by any person free of charge at all reasonable hours at the address specified under subsection (3A) (d);

(b)copies of the environmental statement are available to be obtained by any person from the address specified under subsection (3A) (f); and

(c)where under subsection (3A) (h) the notice states the address of a website, that a copy of the environmental statement is available for inspection by any person on that website.

(3C)A reasonable charge reflecting the costs of printing, copying and distribution may be made by the Secretary of State for the supply of a copy of the environmental statement—

(a)to a person other than a consultation body, or

(b)to a consultation body to which one copy has already been supplied free of charge. ]

(4)The Secretary of State must ensure that the consultation bodies are given an opportunity to express an opinion on the F203. . . project and the environmental statement before he decides whether to proceed with the construction or improvement to which the assessment relates.

(5)Before deciding whether to proceed with the construction or improvement in relation to which an environmental impact assessment has been made, the Secretary of State must take into consideration–

(a)the environmental statement; F204. . .

[F205(b)any opinion on that statement or the project which is expressed in writing by—

(i)any of the consultation bodies; or

(ii)any other person;

and is received by the Secretary of State within any period specified for the purpose by him; and

(c)where section 105C applies, and the EEA State has indicated in accordance with subsection (4) of that section that it wishes to participate in the procedure required by this Part of this Act, any opinion on that statement or the project which is expressed in writing by—

(i)the EEA State;

(ii)a member of the public in the EEA State; or

(iii)an authority having environmental responsibilities designated by the EEA State to be consulted about the project under Article 6 (1) of the Directive;

and is received by the Secretary of State within any period specified for the purpose by him.]

[F206(5A)Where in order to proceed with the construction or improvement in relation to which an environmental statement has been made it is necessary for the Secretary of State to make—

(a)an order or scheme to which Schedule 1 to this Act applies; or

(b)a compulsory purchase order in the exercise of highway land acquisition powers;

the Secretary of State shall, so far as it is practicable to do so, take the steps required of him by this Part of this Act concurrently with the corresponding steps required of him by Schedule 1 to this Act or, as the case may be, the Acquisition of Land Act 1981 M32 in connection with the making of the related instruments.]

(6)When the Secretary of State has decided whether to proceed with the construction or improvement for which an environmental impact assessment has been made, he must publish his decision together with a statement confirming that he has complied with subsection (5) [F207, and describing the right under section 105D (1) to challenge the validity of the decision,] and must make available to the public documents containing–

(a)the content of the decision and any conditions attached thereto;

(b)the main reasons and considerations on which the decision is based; F208. . .

(c)where his decision is to proceed with the construction or improvement, a description of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the project. [F209and]

[F210(d)information about the consultation carried out in compliance with this section and section 105C, the representations received on consultation, and any changes made as a result of those representations.]

(7)Publication by the Secretary of State in accordance with subsections (1), (3) and (6) [F211 shall be

(a)in the London Gazette;

(b)in at least one local newspaper circulating in the area in which the project for the construction or improvement of the highway is proposed to be situated; and

(c)if the Secretary of State uses a website for the publication of information about projects that are subject to the procedure required by this Part of this Act, on that website.]

[F212(8)In this section “the consultation bodies” means—

(a)any principal council as defined in subsection (1) of section 270 of the Local Government Act 1972 M33 for the area where the land is situated;

(b)where the land is situated in England—

(i)English Heritage and Natural England; and

(ii)the Countryside Council for Wales and the National Assembly for Wales where, in the opinion of the Secretary of State, the land is sufficiently near to Wales to be of interest to them;

(c)where the land is situated in Wales—

(i)the Countryside Council for Wales; and

(ii)any organisation referred to in paragraph (b) (i) where, in the opinion of the National Assembly for Wales, the land is sufficiently near to England to be of interest to the organisation;

(d)the Environment Agency; and

(e)any other public authority which has environmental responsibilities and which the Secretary of State or the National Assembly for Wales considers to be likely to have an interest in the project.]

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Amendments (Textual)

F199Pt. VA substituted (13.3.1999) by S.I. 1999/369, reg. 2

Marginal Citations

F214105C Other [F213EEA] States.E+W

(1)This section applies if–

(a)it appears to the Secretary of State that a project to which section 105A(3) applies is likely to have a significant effect on the environment in another [F215EEA State] ; or

(b)[F216an EEA State] the environment of which is likely to be significantly affected by such a project asks the Secretary of State for information about it.

(2)The Secretary of State must give the [F215EEA State]

(a)a description of the project, together with any information available to him which suggests that it may have a significant effect on the environment in the [F215EEA State] ;

(b)any information which he has on the nature of the decision which may be taken on the project;

[F217(c)such information about the procedure required by this Part of this Act as he considers appropriate; and]

(d)a reasonable period within which to indicate whether it wishes to participate in that procedure.

(3)Subsection (2)(a) and (b) must be complied with no later than the date of publication of the determination referred to in Section 105B(1).

(4)If the [F215EEA State] indicates that it wishes to participate [F218in the procedure required by this Part of this Act] , the Secretary of State must give it–

(a)a copy of the environmental statement for the project (if he has not already done so); F219. . .

[F220(b)the information required by subsection (3A) of section 105B to be included in the notice under subsection (3) of that section; and

(c)any information about the procedure required by this Part of this Act which he considers it appropriate to give and which has not already been given to the EEA State.]

(5)The Secretary of State, so far as he is concerned, must also–

(a)arrange for the information which he has given to the [F215EEA State] to be made available, within a reasonable time, to–

(i)the authorities referred to in Article 6(1) of the Directive; and

(ii)members of the public in the [F215EEA State] who are likely to be concerned; and

(b)ensure that those authorities and the public concerned are given a reasonable opportunity to give him their views before he decides whether to proceed with the project to which the environmental impact assessment relates.

(6)The Secretary of State must, in accordance with Article 7(4) of the Directive–

(a)enter into consultations with the [F215EEA State] concerned regarding, among other matters, the potential significant effects of the project on the environment of that [F215EEA State] and the measures envisaged to reduce or eliminate those effects; and

(b)agree with that [F215EEA State] a reasonable period for those consultations.

[F221(7)Where an EEA State has been consulted in accordance with subsection (4) the Secretary of State must, after deciding whether to proceed with the project to which the environmental statement relates, inform the EEA State of the decision and give it documents containing the matters referred to in section 105B (6).]

(8)F222. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: