S.328 of the Highways Act 1980 says under the section ”Meaning of “Highway” that a “highway” means the whole or a part of a highway other than a ferry or waterway, and includes bridges and tunnels which the highway passes over/ through. Which actually doesn’t really answer the question!
However it is the common law definition that says ‘A highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance. ‘ (Halsbury’s Laws 21).
A highway can be created by two methods – statute and common law doctrine and acceptance. There is a statutory presumption of dedication after 20 years’ uninterrupted use by the public under section 31(1) of the Highways Act 1980. However, dedication at common law does not require 20 years (or indeed any period) of uninterrupted use. This is backed up by case law.
A highway can be a road or a footpath. It does not have to be a drivable route.
Difference between a highway and a private street?
This is one that often confuses people. There are three options
- A road or footpath maintainable at the public expense – adopted
- A road or footpath maintainable at private expense – unadopted
- A private street/footway or footpath
The third option is where the public has no rights to use the land unless permission is given by the owner. In other words it enjoys the same status as a path or driveway at your home. The first two are the same with the difference being as to who maintains it. The ownership of the land could be any number of public or private bodies. The ownership does not dictate what is or what isn’t a highway. A road or footpath can be ‘maintained by residents’ it may also have signs that say ‘private road’ – the sign alone doesn’t mean that it is a private street.
A private street or footpath must be gated to prevent traffic at least one day a year, in reality they are gated most fo the time. A highway can only be gated to control livestock, but this must not be locked.
If you would like to establish as to whether a road or a footpath is maintainable at either public or private expense visit Find My Street.
So is a private road a highway?
Often people refer to a ‘private road’ as a somewhere that is not a highway. A private road is a highway unless it is gated and is truly a private piece of land owned by one or more parties. More often these private roads are simply unadopted roads. There are estimated to be over 40,000 unadopted roads in England and Wales making up over 4,000 miles of road. They are not unusual. The Highways Act 1980, describes a private road (or ‘unadopted’ road) is any highway that’s not maintained at public expense. It is still a highway.
Responsibility for the cost of maintaining a private road rests with the frontagers (the owners of properties which front onto such roads). The local highway authority is therefore under no obligation to pay for its maintenance. However the local authority has a statutory duty to ensure that any highway can be used safely by the public. Statutory provision does exist for unadopted roads to be adopted and thus become highways maintainable at public expense. Statutory provision also enables the highways authority to require frontagers to undertake repairs if there is a danger to traffic in a private street. Where the frontagers fail to act as required the authority may execute the repairs itself and recover the costs from the frontagers where they exist. Despite this the local authority is still responsible ultimately for any highway.
Fences along a highway?
We have established above what a highway is. Under Schedule 2, Part 2 of the GPDO in Class A you are allowed the erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure. The maximum height allowed is 1m on any part of a property adjacent to a highway (schools may go to 2m if not causing a visibility issue for highway users) and 2m elsewhere. This permitted development does not apply to listed buildings.
In other words you are normally limited to 1m height adjacent to a highway, whether that is adopted or unadopted. Remember this might be a ‘private road’ as well. It also applies to paths which are a highway. On private streets / private land there is no limit.
You can still be prosecuted whilst driving or using a highway, whether it is adopted, unadopted, privately owned or owned by the local authority. So don’t assume that the speed limit doesn’t apply.
Hopefully this article helps to decide what a highway is – but if you have any comments please do get in touch.
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