Highways out of repair—the statutory remedy
Produced in partnership with Michael Orlik of Lodders Solicitors
Highways out of repair—the statutory remedy

The following Local Government guidance note Produced in partnership with Michael Orlik of Lodders Solicitors provides comprehensive and up to date legal information covering:

  • Highways out of repair—the statutory remedy
  • Duty of the highway authority
  • Right to complain
  • What is the definition of 'out of repair'?
  • Initiating the procedure
  • Further application of HIA 1980, s 56

Duty of the highway authority

A highway is a way which any member of the public has the right to use at all seasons of the year.

Section 41 of the Highways Act 1980 (HIA 1980) provides that the highway authority is under a duty to maintain the highway. It is the duty of the highway authority to maintain the road in such a state of repair as to be passable in safety at all seasons of the year.

Meaning of 'highway' at common law: Halsbury's Laws of England (55) 1

Right to complain

If a member of the public considers that a highway is out of repair, HIA 1980, s 56 enables any member of the public (a complainant) to apply to a magistrates' court for an order requiring the highway authority to put the highway back in repair within a specified time. This is a relatively inexpensive remedy as it is not necessary to instruct counsel in proceedings before the magistrates. The question of whether a road or way is a highway at all and whether, if it is, it is maintainable at public expense is covered in our Practice Notes: Creation of highways, and Statutory adoption of highways: Maintenance responsibility.

What is the definition of 'out of repair'?

Each case will turn on its own facts