Q&As

A council has served a notice under section 167 of the Highways Act 1980 on a landowner due to the owner's retaining wall to not being safe. The notice has now expired. As the retaining wall is old and made from bricks, does the council need to ensure the wall is safe to obviate the danger, or does it need to consider the material used for visual amenity purposes?

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Produced in partnership with Alastair Frew of Lodders Solicitors
Published on LexisPSL on 18/09/2020

The following Local Government Q&A Produced in partnership with Alastair Frew of Lodders Solicitors provides comprehensive and up to date legal information covering:

  • A council has served a notice under section 167 of the Highways Act 1980 on a landowner due to the owner's retaining wall to not being safe. The notice has now expired. As the retaining wall is old and made from bricks, does the council need to ensure the wall is safe to obviate the danger, or does it need to consider the material used for visual amenity purposes?

This Q&A assumes that there are various planning issues, which have not been dealt with in detail.

It is the overarching duty of each Highway Authority to maintain the safety of the highway network. Visual amenity is not the concern of the highway authority, unless it impacts upon visibility or causes a dangerous distraction to highway users. Section 41 of the Highways Act 1980 (HiA 1980) sets out this fundamental duty—the highway authority is 'under a duty […] to maintain the highway'.

However, the question refers to HiA 1980, s 167. The key subsections state:

'(1) This section applies to any length of a retaining wall, being a length—

(a)any cross-section of which is wholly or partly within 4 yards [12 feet/3.66metres] of a street; and

(b)which is at any point of a greater height than 4 feet 6 inches [1.37metres] above the level of the ground at the boundary of the street nearest that point;

but does not apply to any length of a retaining wall erected on land belonging to any transport undertakers…or to any length of a retaining wall for the maintenance of which a highway authority are responsible.

(2) No length of retaining wall, being a length which when erected will be a length of retaining wall to which this sect

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