Q&As

If an unadopted highway has fallen into disrepair, what rights are open to an individual whose right to pass and repass over that highway has been restricted by the state of disrepair?

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Produced in partnership with Alastair Frew of Lodders Solicitors
Published on LexisPSL on 23/07/2019

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

  • If an unadopted highway has fallen into disrepair, what rights are open to an individual whose right to pass and repass over that highway has been restricted by the state of disrepair?

If an unadopted highway has fallen into disrepair, what rights are open to an individual whose right to pass and repass over that highway has been restricted by the state of disrepair?

It is important to remember that ‘adoption’ and ‘dedication’ are two very different things; a highway is adopted, if the highway authority agrees to maintain it at the public expense. A road becomes a highway if it is dedicated for the use of the public. See Practice Note: Creation of highways.

If a highway is adopted, then the highway authority must keep it in repair.

However, adopted or not, the principal obligation for keeping a highway open lies with the highway authority. Section 130(1) of the Highways Act 1980 (HiA 1980) states very simply: ‘it is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it’.

This means that the highway authority must keep the highway open for the safe use of the public, so that pedestrian and wheeled traffic can safely move along it.

An obligation to keep the highway open does not impose any duty to improve the highway, but is simply a duty not to let the highway deteriorate so that it become impassable.

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