Q&As

Is there a legal duty on a highways authority to consult with the public on proposed highway works eg resurfacing a public highway?

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Produced in partnership with Alastair Frew of Lodders Solicitors
Published on LexisPSL on 29/06/2018

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

  • Is there a legal duty on a highways authority to consult with the public on proposed highway works eg resurfacing a public highway?
  • Duty to consult
  • Duty to maintain the highway
  • Road closures
  • Obstruction
  • Other requirements to give notice of intention to carry out works

Duty to consult

There is no general duty for public authorities to consult those affected by their decisions; but a duty to consult may be imposed by statute (eg see further below under ‘Road Closures’), or may arise in public law either because of the duty to act fairly, or as a result of a legitimate expectation eg created by an express promise to consult. See Practice Note: Consultation: requirement and process.

Duty to maintain the highway

The highway authority has a duty to maintain all adopted highways in its region, whether that be roads, footpaths or bridleways.

At common law it is a nuisance to interfere with the surface of a highway and it used to be an offence for utility companies to lay their underground pipes and cables underneath the highway.

The New Roads and Street Works Act 1991 expressly permits the highway authority and statutory undertakers to dig up the highway, along with any third party which holds a specific street works licence.

In the case of day to day repairs, the highway authority must carry out these repairs as soon as is reasonable and does not need to give notice. See Crawley v Barnsley Metropolitan Borough Council as

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