Q&As

Is it possible for highways drainage to be adopted under an agreement made under section 38 of the Highways Act 1980, to become maintainable at the public expense? If so, does this mean the highways authority will have rights of access to carry out maintenance and repairs to its drainage on a third party's land?

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Produced in partnership with Jo Hannah of Winckworth Sherwood
Published on: 17 August 2020
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Adoption of Highway Drainage and its Maintenance and repair

Section 38 of the Highways Act 1980 (HiA 1980) provides that a Local Highway authority (LHA) can agree to adopt a highway as a highway maintainable at the public expense once it is dedicated as a highway usually following the construction of the highway to adoptable standards. Normally an agreement under HiA 1980, s 38 is entered into showing the extent of the works to be carried out prior to adoption and this will normally include the highway drainage works.

Once the highway is adopted pursuant to HiA 1980, s 38, HiA 1980, s 263 Act applies and the highway, together with the materials and scrapings of it, vests in

Jo Hannah
Jo Hannah chambers

Jo has over 20 years experience of dealing with Planning, Highway and associated matters. She started her career in local government and became the Head of the Planning and Highways legal team at a metropolitan authority. Having joined private practice she regularly advises private and public sector clients on a range of planning matters including on major regeneration schemes in London including providing advice on complex CIL issues and Section 106 agreements. She has advised on heritage matters including the negotiation of Heritage Partnership Agreements in respect of large heritage assets. She also advises on appeals and enforcement matters. In addition to planning she has been involved with resisting applications to list buildings and land as assets of community value and in resisting many applications to have land listed as a Town and Village Green. She also has the experience of advising on complex highways matters in both the public and private sector. She is recognised in Chambers and Legal 500 as a 'recommended lawyer'.

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Jurisdiction(s):
United Kingdom
Key definition:
Authority definition
What does Authority mean?

The public sector body procuring the project. This might, for example, be a local authority, an NHS trust, a central Government Department or a Non-Departmental Public Body.

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