Chapter Xiii: Highways
376.There is no comprehensive statutory legal definition of a highway (but see the limited definition in section 328 of the Highways Act 1980), because the concept of a highway long pre-dates highways legislation. Under common law, a highway may be broadly defined as a way over which all members of the public have the right to pass and repass. The highway authority is the body responsible for maintaining the highway where it is a highway maintainable at public expense.
377.The London Government Act 1963 largely brought the highway law affecting London into line with that applying elsewhere. This is now consolidated in the Highways Act 1980 (the 1980 Act). One difference was that in Greater London there was a 3-tier hierarchy of highway authorities. The Secretary of State was highway authority for trunk roads, the Greater London Council (GLC) for "metropolitan roads" and the London borough councils for all other roads. "Metropolitan roads" were abolished along with the GLC by the Local Government Act 1985, and some of them became trunk roads and the rest borough roads. One purpose of the Act is to reduce the number of roads designated as trunk roads in London and to create a network of key roads for which the GLA will be highway authority.
Sections 259 to 263: GLA Roads
378.Section 259 provides that TfL will be the highway authority for GLA roads. Section 260 inserts a new section 14A into the 1980 Act to provide for the initial GLA roads to be designated by order by the Secretary of State. The new section 14A also provides that a trunk road in Greater London ceases to be a trunk road when it becomes a GLA road under this provision. (A trunk road is a highway for which the Secretary of State, rather than a local authority, is the highway and traffic authority. A trunk road may be an all purpose trunk road, eg the A406 North Circular Road, or a special road (motorway), eg the M4).
379.Section 261 inserts a new section 14B into the 1980 Act and provides that any road in Greater London except a trunk road can become a GLA road by order of the GLA and that any road can cease to be a GLA road by order of the GLA. Such orders must be made with the consent of the highway authority from whom the road is transferred or to whom the road is transferring, as the case may be. If this consent is not given, then the order is not effective unless confirmed by the Secretary of State.
380.Section 262 inserts a new section 14C into the 1980 Act and requires TfL to produce an up-to-date record of GLA roads. This record is to be distributed to the GLA and London Borough Councils and made available for public inspection. A certificate by TfL that a highway or proposed highway is a GLA road is evidence of the facts stated in it.
381.Section 263 inserts a new section 14D into the 1980 Act so that orders making or changing designations of the initial GLA roads are to be made by the Secretary of State by statutory instrument, subject to negative resolution procedure. The power of the Mayor to make orders under sections 14B and 266B is not exercisable by statutory instrument.
Sections 264 and 265: Transfers of property and liabilities upon a road becoming or ceasing to be a GLA Road
382.Section 264 inserts a new section 266A into the 1980 Act to provide for the transfer of property and liabilities when a road becomes or ceases to be a GLA road by order under section 14B of the 1980 Act. This is based on provisions in section 265 of, and Schedule 21 to, the 1980 Act which are used when a road becomes or ceases to be a trunk road.
383.Section 265 inserts a new section 266B into the 1980 Act to provide for the transfer of employees when a road becomes or ceases to be a GLA road by order under section 14B of the Highways Act 1980. This will ensure that if staff are transferred when a road transfers, they have continuity of service. As with the inserted section 14B of the 1980 Act, the power to make orders under section 266B is not exercisable by statutory instrument.
Section 266: London borough councils
384.Section 266 inserts a new section 301A into the 1980 Act so that a borough council carrying out highway work which affects a GLA road or a road in another London borough must notify TfL, and where the road is in another borough, the council of that borough as well. TfL is given a power to direct the borough not to undertake the work so long as TfL or another borough objects. Where TfL or another borough objects, the GLA can give consent to the work after consideration of the objection.
Sections 267 to 270: Miscellaneous and supplementary
385.Section 267 provides for consultation between the Royal Parks Agency and the local highway authority, if either of them proposes to carry out functions likely to affect a road for which the other is responsible. Where consultation would not be reasonably practicable, they may go ahead and then inform the other party afterwards.
386.Section 268 provides for TfL and boroughs to construct road humps which do not conform to current Government regulations without the need for specific authorisation by the Secretary of State. Where a borough proposes to construct non- standard road humps, it must notify the Secretary of State and take his comments into account before proceeding.
387.Section 269 provides for TfL and boroughs to construct traffic-calming schemes which do not conform to current Government regulations without the need for specific authorisation by the Secretary of State. Where a borough proposes to construct non-standard traffic calming schemes, it must notify the Secretary of State and take his comments into account before proceeding.
388.Section 270 introduces Schedule 22 which provides for stopping up and diversion orders to be made by London boroughs rather than the Secretary of State. The main provisions amend Part X of the Town and Country Planning Act 1990 and provide that a borough (including one acting on behalf of another) can make stopping up or diversion orders with regard to:
highways affected by development for which planning permission has been granted or by a government department (section 247);
highways crossing or entering the route of a proposed highway (section 248); or
the extinguishment of the right to use vehicles on a highway (section 249).
389.The decision on whether to dispense with a public inquiry in cases of opposed orders will be made by the Mayor. The Mayor must consent to the making of an opposed order where an inquiry has been held.
