Sections 56 &130A
Highways Act 1980
Presentation to
Herefordshire Local Access Forum
26 October 2011
Amey Herefordshire
Functions – Powers and Duties
• Highway Authorities such as Herefordshire
Council have a range of functions; some are
duties and some are powers.
• Generally, HC has a discretion to exercise a
power but it must fulfill its duties.
• It may have a discretion as to how it fulfills its
duties.
Section 41 Highways Act 1980
“The authority who are for the time being the
highway authority for a highway maintainable at
the public expense are under a duty … to
maintain the highway.”
Section130 Highways Act 1980
“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.
…
It is the duty of a council who are a highway authority to
prevent, as far as possible, the stopping up or
obstruction of the highways for which they are the
highway authority.”
Remedies
• If the Highway Authority fails in its duties then
members of the public should:
• Contact the authority to highlight the issue
• Allow a reasonable length of time for authority
to act
• Be prepared to send at least one reminder
letter
Remedies (continued)
Only if these attempts fail to produce positive action,
should legal action be considered as a last resort to
put pressure upon the Highway Authority.
There are two specific statutory remedies to force the
authority to act:
• Section 56 deals with highways that are out of repair
• Section 130A deals with public rights of way that are
obstructed
The process…greatly simplified
• The complainant sends the Highway Authority
a notice containing the facts of the case
• The Highway Authority responds to the notice
either denying the case is properly made or
admitting it and setting out what it proposes to
do.
• If the complainant is not satisfied with this
response s/he may apply to the Magistrates
court (occasionally the Crown Court) for an
order compelling the Highway Authority to
act.
Section 56 – the tests to be met - 1
• The route must be a highway and be publicly
maintainable
• The route must be out of repair rather than
obstructed
“The road must be kept in
such repair as to be
reasonably passable for
the ordinary traffic of the
neighbourhood at all times
of the year.” R v High
Halden (1859)
Section 56 – the tests to be met - 2
Barnes v Metropolitan Borough
Council of Bury (1990) 'We do
not consider that the situation
and nature of Hawkshaw Lane
require it to be maintained to
the same standard as an urban
street. That would be
inappropriate and incongruous.
We consider and order that it
be:
• adequately drained, and
• surfaced — not necessarily
with a tarmacadam surface
but with something that is
reasonably suitable for a
country lane...'.
Section 130A – the tests to be
met
• The route must be a footpath, bridleway,
restricted byway or BOAT
• The obstruction cannot be a building
• The obstruction must significantly interfere
with the exercise of public rights
• There are not arrangements already in place
to remove the obstruction within a reasonable
time
The importance of
Herrick v Kidner (2010)
• The
Legal Principles
• The public are entitled to unrestricted access to the
whole and each part of the highway;
• The right to such access is principally to pass and
repass but it is also to enjoy other amenity rights;
• Those amenity rights must be reasonable;
• Any encroachment which prevents enjoyment of
these rights is an unlawful obstruction;
• The law ignores fractional obstructions;
• A highway authority cannot deprive itself of the power
to act against an unlawful obstruction by refraining
from exercising its statutory powers, or by purporting
to give consent.
Conclusions
1. A valuable tool if used wisely
2. Should always be considered as a remedy of
last resort
3. Can lead to a reactive approach by the Council
rather than a planned, strategic approach
4. Those considering serving notices should take
into account the wider public interest as far as
possible
Further information
Section 56:
http://www.iprow.co.uk/gpg/index.php/Section_56_Process
http://www.ramblers.org.uk/rights_of_way/take_action/get_a_path_mai
ntained
Section 130A
http://archive.defra.gov.uk/rural/documents/countryside/prow/guidela.pdf
http://www.ramblers.org.uk/rights_of_way/take_action/get_an_obstruct
ion_removed